Ortega v. Clinton et al
Filing
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ORDER, Petitioner's Motion to Extend Time to File Written Report 44 is granted; Petitioner's disclosure of all expert opinions and report, as to Anna Ochoa O'Leary, Ph.D. only, shall be made no later than 1/6/12; Respondent's di sclosure of expert opinions and reports, shall be made by 2/3/12; true rebuttal expert opinions and reports solely to contradict or rebut evidence shall be made by 2/24/12; affirming all other orders and deadlines set forth in the Court's 5/16/11 Scheduling Order 33 . Signed by Magistrate Judge Lawrence O Anderson on 12/12/11. (REW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Olga Clarissa Ortega,
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Petitioner,
vs.
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Hillary Rodham Clinton, Secretary of
State of the United States,
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Respondent.
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No. CV-11-0140-PHX-LOA
ORDER
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The Court has reviewed Petitioner’s November 18, 2011 Disclosure of Expert
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Witness and Motion to Extend Time to File Written Report, doc. 44, and Respondent’s
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Response to Petitioner’s Motion to Extend Time Limits, doc. 45, which does not oppose
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Petitioner’s Motion.
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The Court’s May 16, 2011 Rule 16 scheduling order sets firm deadlines for,
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among others, Petitioner’s disclosure of expert testimony and reports by November 18,
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2011, all discovery be completed by Monday, May 4, 2012, and dispositive motions be
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filed by June 22, 2012. (Doc. 33)
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Petitioner’s Motion indicates that “[b]eginning in early [to] mid-October,
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undersigned counsel . . . began interviewing potential witnesses who could qualify as
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experts under the Federal Rules.” (Doc. 44 at 1-2) He “submits that good cause exists to
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extend the dates for submission of the reports required by Fed. R. Evid. 26(a)(2)(B).” (Id.
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at 2) Counsel acknowledges he “is aware of the Court’s admonition in its Order of
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August 10, 2011, regarding the lack of diligence shown thus far and the unlikely need for
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extensions of the scheduling order. However, counsel submits that an extension in this
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matter will not prejudice the Respondent and that counsel has shown diligence in
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obtaining the services of an expert witness.” (Id.) Petitioner’s counsel represents he has
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interviewed eight potential experts to testify in this case and has settled on using Anna
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Ochoa O’Leary, Ph.D., Assistant Professor of Practice Dept. of Mexican American
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Studies, at the University of Arizona. Dr. O’Leary will purportedly testify regarding “her
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knowledge of the behavior of migrants whose children are born in the United States and
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yet are raised in Mexico [and] that it is [a] common practice for children born in the U.S.
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to also have been issued birth certificates or registrations in Mexico.” (Id. at 1)
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Federal Rule of Civil Procedure 16(b)’s “good cause” standard primarily considers
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the diligence of the party seeking the amendment. Johnson v. Mammoth Recreations, Inc.,
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975 F.2d 604, 607-08 (9th Cir. 1992). A district court may modify the pretrial schedule
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“if it cannot reasonably be met despite diligence of the party seeking the extension.” Id. at
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608; Fed.R.Civ.P. 16 advisory committee’s notes (1983 amendment). “Good cause”
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means the Rule 16 scheduling deadlines cannot be met despite the party’s exercise of
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diligence to do so, citing Miller & Kane, Federal Practice and Procedure § 1522.1 at 231
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(2d ed. 1990). Id. “In these days of heavy case loads, trial courts . . . set schedules and
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establish deadlines to foster the efficient treatment and resolution of cases.”
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Hostnut.Com, Inc. v. Go Daddy Software, Inc., 2006 WL 1042335, * 1 (D.Ariz. April 19,
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2006) (quoting Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005)
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(internal quotation marks omitted); also see, Williams v. City of Mesa, 2010 WL
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2803880 (D.Ariz. July 15, 2010) (denying stipulated extension of Rule 16 deadlines
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because diligence to complete discovery had not been demonstrated).
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While she has timely disclosed her expert’s identity, Petitioner requests additional
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time to submit Dr. O’Leary report and opinions as required by Rule 26(a)(2)(B) and the
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Court’s May 16, 2011 Rule 16 scheduling order. Because Petitioner’s counsel has
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demonstrated due diligence in searching and locating an expert witness; the requested
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extension for disclosure of Dr. O’Leary report will not alter the scheduling order’s
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deadlines for completing discovery and filing dispositive motions nor prejudice
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Respondent’s compliance with the scheduling order; and Respondent has filed a
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dispositive motion on December 9, 2011, doc. 46.; the Court will grant Petitioner’s
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Motion.
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Good cause appearing,
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IT IS ORDERED that Petitioner’s Motion to Extend Time to File Written Report,
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doc. 44, is GRANTED. Petitioner’s disclosure of all expert opinions and report under
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Rule 26(a)(2)(B), Fed.R.Civ.P., as to Anna Ochoa O’Leary, Ph.D. only, shall be made no
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later than Friday, January 6, 2012.
IT IS FURTHER ORDERED that Respondent’s disclosure of expert opinions
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and reports required by Rule 26(a)(2)(B) and Rule 26(a)(2)(C), Fed.R.Civ.P., shall be
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made by Friday, February 3, 2012.
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IT IS FURTHER ORDERED that true rebuttal expert opinions and reports
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solely to contradict or rebut evidence as required under Rule 26(a)(2)(A),(C), Fed.R.
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Civ.P. shall be made by Friday, February 24, 2012.
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IT IS FURTHER ORDERED affirming all other orders and deadlines set forth
in the Court’s May16, 2011 Scheduling Order. (Doc. 33)
Dated this 12th day of December, 2011.
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