Whitfield v. Hernandez et al

Filing 48

ORDER DENYING 47 Plaintiff's Motion Amend the Case Schedule to Extend the Discovery Period, signed by Magistrate Judge Jennifer L. Thurston on 12/8/2014. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

STEVEN WHITFIELD,

12

Plaintiff,
v.

13
14

JOHN HERNANDEZ, et al.,
Defendants.

15

)
)
)
)
)
)
)
)
)

Case No.: 1:13-cv-0724 - JLT
ORDER DENYING PLAINTIFF’S MOTION TO
AMEND THE CASE SCHEDULE TO EXTEND
THE DISCOVERY PERIOD
(Doc. 47)

16
Before the Court is Plaintiff’s request (Doc. 47) to amend the scheduling order to extend the

17
18

discovery deadline, which expires on January 12, 2015. (Doc. 38) He reports that due do his attempts

19

to settle the case, he forewent discovery in order to avoid Defendants having to expend resources to

20

complete discovery while considering his settlement demands. Id. at 1. In addition, Plaintiff explains

21

that he did not have access to a computer for a period of time due to his inability to use public

22

transportation because of a bus strike. Id. at 2. Finally, Plaintiff indicates that the fact that Defendant

23

Aceves was added to the case “only 4-5 months before” the scheduling conference, this impacted his

24

ability to complete discovery. Id.
Because Plaintiff has failed to demonstrate he exercised diligence to complete discovery within

25
26

the time allotted, his request to extend the discovery deadline is DENIED.

27

I.

28

Good cause is required to modify a scheduling order
Districts courts must enter scheduling orders in actions to “limit the time to join other parties,
1

1

amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3). In addition,

2

scheduling orders may “modify the timing of disclosures” and “modify the extent of discovery.” Id.

3

Once entered by the court, a scheduling order “controls the course of the action unless the court

4

modifies it.” Fed. R. Civ. P. 16(d). Scheduling orders are intended to alleviate case management

5

problems. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). As such, a

6

scheduling order is “the heart of case management.” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3rd

7

Cir. 1986).
A scheduling order is “not a frivolous piece of paper, idly entered, which can be cavalierly

8
9

disregarded by counsel without peril.” Johnson, 975 F.2d at 610. According to Fed. R. Civ. P.

10

16(b)(3), a case schedule may be modified only for good cause and only with the judge’s consent. Fed.

11

R. Civ. P. 16(b). In Johnson, the Court explained,
. . . Rule 16(b)’s “good cause” standard primarily concerns the diligence of the party
seeking the amendment. The district court may modify the pretrial schedule “if it cannot
reasonably be met despite the diligence of the party seeking the extension.”
Fed.R.Civ.P. 16 advisory committee’s notes (1983 amendment) . . .[T]he focus of the
inquiry is upon the moving party’s reasons for seeking modification. . . . If that party
was not diligent, the inquiry should end.

12
13
14
15
16

Id. at 609. Parties must “diligently attempt to adhere to that schedule throughout the subsequent course

17

of the litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999); see Marcum v.

18

Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va. 1995). In part, the “good cause” standard requires the

19

parties to demonstrate that “noncompliance with a Rule 16 deadline occurred or will occur,

20

notwithstanding her diligent efforts to comply, because of the development of matters which could not

21

have been reasonably foreseen or anticipated at the time of the Rule 16 Scheduling conference . . .”

22

Jackson, 186 F.R.D. at 608, emphasis added.
Here, Plaintiff lists a number of reasons why he has not completed discovery. First, he reports

23
24

that he urged settlement with the Defendants several times and during this time, he agreed that

25

Defendants did not need to respond to discovery while they considered his offers.1 (Doc. 47 at 1)

26
27
28

1

Settlement efforts do not constitute good cause to amend a scheduling order. The desire to settle is not an unanticipated
development (Jackson, 186 F.R.D. at 608) and it should have been accounted for in the case schedule proposed by the
parties. However, the only indication in the joint scheduling report about the topic of settlement is Defendants’ report that,
“Defendants do not think that this case is amendable to settlement at this time. The parties do not believe mediation would

2

1

However, Plaintiff admits that settlement efforts failed on October 5, 2014.2 Id. Thus, it is not clear

2

why discovery was not immediately re-commenced by Plaintiff at that time.

3

Second, Plaintiff reports that he did not have access to a computer because he needed to use a

4

bus to travel to where he could use a computer but the bus system was not operating due to a strike.

5

(Doc. 47 at 2) The Court takes judicial notice that the bus strike lasted 34 days and ended on August

6

18, 2014. Fed. R. Civ. P. 201(b)(1), (2) [A court may take judicial notice of facts that are “generally

7

known with the trial court’s territorial jurisdiction” or “can be accurately and readily determined from

8

sources whose accuracy cannot reasonably be questioned.”] Thus, how the bus strike—which ended

9

before Plaintiff’s self-imposed moratorium on discovery ended—could have impacted Plaintiff’s

10

discovery efforts after August 19, 2014, is not explained. Moreover, Plaintiff fails to explain why

11

access to a computer was needed. He could have he simply handwritten his discovery requests. If he is

12

computerized legal research was needed to conduct discovery, he fails to explain why.

13

Third, Plaintiff explains that his discovery efforts were hampered by the fact that Defendant

14

Aceves was added to this case “4-5 months before” the case schedule issued. (Doc. 47 at 2) Plaintiff

15

does not explain how adding this defendant, before the case had really begun, impacted his discovery

16

efforts. Notably, Plaintiff chose to add Ms. Aceves added as a defendant (Docs. 24, 26)—despite

17

whatever additional burdens this would place on his discovery efforts—and this was done on April 2,

18

2014. (Doc. 27) This occurred before the Court issued the case schedule which means, of course, that

19

Plaintiff was fully aware of this defendant and what discovery efforts he would need before the

20

timeframe to complete discovery was set. Thus, it is not clear how an act which occurred before

21

discovery began could possibly have impacted Plaintiff’s ability to conduct discovery timely.

22
23
24
25

Furthermore, on August 28, 2014, the parties filed a mid-discovery status conference report in
which Plaintiff described his settlement efforts as follows:
1) Discovery completed
a. Propounded interrogatories on Defendant Hernandez in March 2014, and
requests for admission on Defendants Hernandez and Aguilera in March and May 2014.

26
27
28

be helpful.” (Doc. 35 at 7) This report was dated May 27, 2014. Id. at 8. Thus, it is unclear why Plaintiff felt settlement
was a realistic possibility after this point.
2
Notably, in his motion for appointment of counsel, Plaintiff reported that settlement efforts had failed and this motion was
signed on September 29, 2014. (Doc. 45)

3

1
2

2) Discovery remaining
a. Will propound additional written discovery on all three Defendants before
January 12, 2015.

3
4
5

b. Contemplating whether to depose one or more Defendants.
c. Intends to complete all necessary non-expert discovery by the January 12,
2015 deadline, and all necessary expert discovery by the March 23, 2015 deadline.

6

(Doc. 43 at 3, emphasis added) Likewise, the parties affirmed, “At present, the parties agree that

7

they are in a position to comply with all dates set forth in the scheduling order.” Id. at 2, emphasis

8

added. Thus, at least as of August 28, 2014 when the status report was filed, Plaintiff saw no

9

impediment to completing discovery by the deadline despite the fact that he had suspended discovery

10

for a period of time. Indeed, absent from the joint mid-discovery status conference report was any

11

indication that the parties had attempted or were attempting settlement efforts or that these efforts had

12

made any impact on completing discovery in a timely fashion.

13

Finally, the Court does not condone Plaintiff’s decision to suspend discovery while Defendants

14

considered whether to accept his settlement offers. However, even after making this decision, there is

15

no explanation why Plaintiff did not redouble his discovery efforts beginning at least as late as

16

September 29, 2014, when it was clear to him that the case would not settle. Had he done this, there is

17

no reason why discovery could not have been completed in a timely fashion.

18
19

Thus, because Plaintiff has failed to demonstrate good cause to amend the scheduling order, the
motion is DENIED.

20
21
22
23

IT IS SO ORDERED.
Dated:

December 8, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
4