Almaraz v. Mesa, City of et al

Filing 56

ORDER denying 55 Plaintiff's Motion for Reconsideration. Signed by Judge Frederick J Martone on 5/2/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Delberta Manuel Almaraz,
Plaintiff,

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vs.

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City of Mesa, et al.,
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Defendant.
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No. CV-10-1348-PHX-FJM
ORDER

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We have before us plaintiff’s motion for reconsideration (doc. 55) of our order
denying plaintiff’s motion to modify and amend the Rule 16 scheduling order (doc. 49).

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The scheduling order provided that plaintiff’s expert disclosures were due on

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December 1, 2010 (doc. 8). That date was discussed at the scheduling conference hearing

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and entered in our Rule 16 scheduling order. There was no ambiguity about the date. We

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emphasized in our order that the deadlines contained in the order would be “STRICTLY

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ENFORCED” (emphasis in original).

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Nevertheless, plaintiff’s counsel did not comply with the expert disclosure deadlines.

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Instead, he waited almost three months after the expert deadline expired to file his motion

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to modify the scheduling order. Plaintiff’s counsel blames his paralegal for failing to docket

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the correct dates. He blames opposing counsel for failing to respond to discovery requests,

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although no motion to compel was filed. He blames telephone connection problems during

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the Rule 16 hearing. And finally he blames this court for “ignor[ing the parties’] stipulated

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deadlines.” Reply at 2.

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Under Rule 6(b)(1)(B), Fed. R. Civ. P., where the specified time for the performance

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of an act has expired, we may extend the time “if the party failed to act because of excusable

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neglect.” To determine whether the failure to meet a deadline resulted from “excusable

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neglect,” we apply an equitable balancing test, considering “(1) the danger of prejudice to

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the opposing party; (2) the length of the delay and its potential impact on the proceedings;

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(3) the reason for the delay; and (4) whether the movant acted in good faith.” Ahanchian v.

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Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citing Pioneer Inv. Servs. Co. v.

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Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993)).

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The length of the delay in the present case was significant. Plaintiff’s counsel did not

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file his request to modify the scheduling order or otherwise explain his tardiness until almost

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three months after the deadline had passed. Even after defense counsel advised him that the

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expert deadline had expired, plaintiff’s counsel waited another three weeks before filing the

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motion to enlarge the deadline. When counsel finally filed his motion to modify the

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scheduling order, he requested not only a four-month extension to the expert disclosure

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deadline, but also to the discovery cut-off date and the deadline to supplement discovery.

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He neglected to recognize, however, that these proposed extensions would also upset the

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dispositive motion deadline of May 6, 2011, which in turn would affect the firm trial date.

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These extensions would not only prejudice defendants, who had already complied with their

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own January 3, 2011 expert disclosure deadline, but would also significantly affect the

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overall Rule 16 schedule and therefore the timely processing of this case.

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In light of the wide array of excuses, none of which adequately explains the delay, we

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question whether plaintiff’s counsel acted in good faith in attempting to comply with the

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scheduling order. Counsel’s failure to comply with the disclosure deadline did not arise from

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a misinterpretation of an ambiguous rule, see Pioneer, 507 U.S. at 387, 113 S. Ct. at 1494,

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or from “forces beyond [his] control” id. Instead, counsel’s omission was caused by

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carelessness and neglect. See id. at 392, 113 S. Ct. at 1496 (“inadvertence, ignorance of the

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rules, or mistakes construing the rules, do not usually constitute ‘excusable’ neglect”).
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Indeed, we have never seen a more egregious neglect of counsel’s obligations to understand

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and keep track of important deadlines. In this very busy district, the Rule 16 scheduling

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order is the case blueprint. It should be front and center in counsel’s attention to the file. It

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is not aspirational. Firm, but fair, enforcement transforms the legal culture into an awareness

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of counsel’s duty to reduce the cost and delay associated with civil litigation. See E.R. 1.3.

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Congress has encouraged early and effective control of civil litigation. 28 U.S.C. §

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473(a)(2). And a judge has an ethical obligation to “dispose promptly of the business of the

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court.” Canon 3(A)(5), Code of Conduct for United States Judges.

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At this point, any prejudice to plaintiff is speculative. If it turns out that plaintiff is

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prejudiced, she has a remedy against counsel. But the harm to the administration of justice

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by excusing inexcusable neglect would erode the legal culture’s acceptance of judicial

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control of the process, 28 U.S.C. § 473(a)(2).

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Thus, we confirm our prior ruling (doc. 49) that counsel’s neglect in failing to comply

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with the expert disclosure deadline is not excusable. IT IS ORDERED DENYING

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plaintiff’s motion for reconsideration (doc. 55).

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DATED this 2nd day of May, 2011.

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