United States of America v. 11.38 Acres of Land

Filing 119

ORDER denying 111 Motion for Leave to File Motions in Limine. Plaintiff shall file a response addressing the merits of Defendants' Motion for Reconsideration (Doc. 110) by 10/14/11.. Signed by Senior Judge Frank R Zapata on 9/30/11.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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11.38 Acres of Land, more or less, situated)
in Santa Cruz County, State of Arizona, et)
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al.,
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Defendants.
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United States of America,

No. CIV 08-475-TUC-FRZ
No. CIV 08-480-TUC-FRZ
No. CIV 08-485-TUC-FRZ
Consolidated
ORDER

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Pending before the Court is Defendants’ motion for leave to file untimely motions in
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limine. In December of 2010, pursuant to the parties’ stipulation, the Court issued an
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Amended Scheduling Order that stated that “motions in limine/pretrial motions” were due
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no later than “January 21, 2011". See Doc. 77. In accordance with that Order, four motions
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in limine were filed on January 21, 2011; Defendants filed one motion in limine, and Plaintiff
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filed three motions in limine. Thereafter, responses were filed, and the Court issued an Order
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addressing the motions. After the Court issued its Order addressing the timely motions in
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limine, and nearly seven months after the January 21, 2011 deadline expired, Defendants
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filed a motion for leave to file untimely motions in limine on August 15, 2011.
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A "district court is given broad discretion in supervising the pretrial phase of litigation,
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and its decisions regarding the preclusive effect of a pretrial order ... will not be disturbed
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unless they evidence a clear abuse of discretion . . . In general, the pretrial scheduling order
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can only be modified upon a showing of good cause . . . The pretrial schedule may be

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modified if it cannot reasonably be met despite the diligence of the party seeking the

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extension." Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir.

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2002)(internal quotes and citations omitted). "[C]arelessness is not compatible with a finding

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of diligence and offers no reason for a grant of relief." Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 610 (9th Cir. 1992). "A scheduling order is not a frivolous piece of paper,

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idly entered, which can be cavalierly disregarded by counsel without peril . . . Disregard of

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the [scheduling] order would undermine the court's ability to control its docket, disrupt the

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agreed-upon course of the litigation, and reward the indolent and the cavalier." Id. at 610

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(internal quotes and citations omitted). In light of these considerations, "if the party seeking

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the modification was not diligent, the inquiry should end and the motion to modify should

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not be granted." Zivkovic, 302 F.3d at 1087 (internal quotes and citations omitted).

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Accordingly, motions filed after deadlines set in a scheduling order are properly deemed

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untimely and may be denied solely on this ground. See, e.g., Johnson, 975 F.2d at 608-609;

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U.S. v. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir.

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1985), superceded on other grounds, Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir.

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1996); Dedge v. Kendrick, 849 F.2d 1398 (11th Cir. 1988).

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A review of the record reflects that nothing prevented Defendants from filing the proposed

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untimely motions by the January 21, 2011 deadline. Defendants did not, for example,

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suddenly stumble upon new facts (i.e., facts that could not have been discovered prior to

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January 21, 2011) that unexpectedly necessitated the filing of untimely motions in August

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of 2011. Rather, it appears that Defendants simply chose not to file the untimely motions at

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issue by the deadline ordered by the Court; then, only after the Court issued its order

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regarding the timely motions in limine, Defendants decided to file untimely motions in limine

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nearly seven months after the applicable deadline expired. Defendants’ motion (Doc. 111)

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for leave to file their untimely motions in limine is denied.

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The record also reflects that Defendants also filed a “motion for Rule 60(b) relief” which
the Court construes as a motion for reconsideration of the Court’s Order excluding the
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proposed expert testimony of Patrick Cote. Plaintiff shall file a response addressing the

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merits of this motion by no later than October 14, 2011. Unless otherwise ordered by the

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Court, no reply shall be permitted.

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DATED this 30th day of September, 2011.

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