Monroe v. Zimmer US, Inc. et al

Filing 43

MEMORANDUM and ORDER signed by Judge Frank C. Damrell, Jr on 4/16/10 ORDERING Plaintiff's Motion to Modify the Pretrial Scheduling Order 24 GRANTED. Plaintiff's Motion to Stay 22 DENIED as MOOT. Discovery shall be completed by 5/21/10; Designation of Expert Witnesses due by 6/4/2010; Expert Discovery completed by 7/23/10; Dispositive Motions shall be heard no later than 10/8/10; the Final Pretrial Conference is RESET for 12/3/10 at 1:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.; and the trial is RESET for 3/1/11 at 9:00 AM. (Carlos, K) Modified on 4/16/2010 (Krueger, M).

1 2 3 4 5 6 7 8 9 10 11 12 SARA MONROE, 13 14 16 18 19
v. and Does 1 through 25, Defendants. Plaintiff, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----

NO. 2:08-cv-2944 FCD EFB MEMORANDUM AND ORDER

15 ZIMMER US, INC.; ZIMMER, INC.; 17 _____________________________/
----oo0oo---This matter is before the court on plaintiff Sara Monroe's

20 ("plaintiff" or "Monroe") motion to modify the pretrial 21 scheduling order, pursuant to Federal Rule of Civil Procedure 16, 22 to re-open discovery cut-off and expert disclosure dates for at 23 least thirty (30) days.1 24 25 26 27
The motion is characterized as a motion to extend discovery dates. However, because the discovery deadlines at issue have already passed, the court interprets the motion as one to reopen discovery.
1

Defendants Zimmer US, Inc. and Zimmer,

Pl intiff concurrently filed a 28 pendingaruling by the Judicial Panelmotion to stay proceedings on Multidistrict Litigation. Because the Panel has denied the motion for centralization, the court DENIES the motion to stay as MOOT.

1 Inc. (collectively "defendants") oppose the motion. 3 4
BACKGROUND

For the

2 reasons set forth below,2 plaintiff's motion is GRANTED.
On October 16, 2008, plaintiff filed a complaint in the

5 Superior Court of the State of California for the County of 6 Shasta against defendant, alleging state law claims of general 7 negligence and products liability. 9 jurisdiction. 11
Defendant removed the case

8 from state court on December 3, 2008 on the basis of diversity
The parties filed a Joint Status Report on

10 February 2, 2009.
On February 3, 2009, the court issued a Pretrial Scheduling Initial

12 Order, setting a discovery deadline of February 5, 2010. 14 expert disclosures were due on March 11, 2010. 16 disclosure deadline to April 5, 2010. 17

13 expert disclosures were due on February 19, 2010 and supplemental
On March 6, the

15 parties stipulated to extend the supplemental expert witness
Plaintiffs' counsel contends that he was unaware of the

18 discovery deadline until January 21, 2010 because his assistant 19 failed to follow the customary practice of noting dates months 20 ahead of the deadlines to conduct discovery and to retain 21 experts.
(Decl. of Bonnie Prather ("Prather Decl."), filed Feb.

22 18, 2010, ¶ 3; Decl. of Steward C. Altemus ("Altemus Decl."), 23 filed Feb. 18, 2010, ¶ 22.)
Counsel also contends that because

24 he practices almost exclusively in state court where discovery is 25 only cut-off in the two months prior to trial, he did not 26 27 28
Because oral argument will not be of material assistance, the court orders the matter submitted on the briefs. E.D. Cal. L.R. 230(g). 2
2

1 contemplate that discovery deadlines were close or had passed. 2 (Altemus Decl. ¶¶ 16, 19.)
Counsel also believed that fact

3 discovery had been extended to March 8, 2010, based on a 4 stipulation that had not been filed with the court.3 5
(Id. ¶ 34.) Furthermore, plaintiff's counsel asserts that he did not

6 realize defendants intended to challenge the qualifications of 7 plaintiff's expert until the deposition taken on February 2, 8 2010.
(Id. ¶¶ 25, 28.) At that point he realized he needed to

9 retain the testimony of an expert to opine on the relationship 10 between the medical device used in plaintiff's case and the 11 damages suffered by plaintiff. 12
(Id. ¶ 29.) On February 18, 2010, plaintiff filed a motion to modify the Plaintiff

13 pretrial scheduling order to reopen discovery.

14 contends that such an extension is necessary to complete 15 discovery, including both factual discovery and expert 16 disclosures. 17 18 19 Fed. R. Civ. P. 16(b).
(See id. ¶ 47.) ANALYSIS A pretrial order "may be modified only for good cause." The district court may modify the

20 pretrial schedule "if it cannot reasonably be met despite the 21 diligence of the party seeking the extension."
Johnson v.

22 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) 23 (quoting Fed. R. Civ. P. 16, advisory committee's notes (1983 24
3

25 However, defendants objected to the stipulation on February 8, 26 event that there was a problem getting the depositions of the 27 Plaintiff's counsel admits that he should not have filed the 28 (Id. ¶ 35.)
plaintiff and her treating doctor completed. (Id. ¶ 34.) 2010, because the stipulation was entered into solely in the

Plaintiff filed this stipulation on February 5, 2010.

stipulation without further communication with defense counsel. 3

1 amendment)). 3 amendment.

The "good cause" standard set forth in Rule 16

2 primarily focuses upon the diligence of the party requesting the
"Although the existence or degree of prejudice to the

4 party opposing the modification might supply additional reasons 5 to deny a motion, the focus of the inquiry is upon the moving 6 party's reasons for seeking modification." 7
Id. The moving party may establish good cause by showing "(1)

8 that [he or she] was diligent in assisting the court in creating 9 a workable Rule 16 order; (2) that [his or her] noncompliance 10 with a Rule 16 deadline occurred or will occur, notwithstanding 11 [his or her] diligent efforts to comply, because of the 12 development of matters which could not have been reasonably 13 foreseen or anticipated at the time of the Rule 16 scheduling 14 conference; and (3) that [he or she] was diligent in seeking 15 amendment of the Rule 16 order, once it became apparent that [he 16 or she] could not comply with the order." 18
Jackson v. Laureate,

17 Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)(citations omitted).
Plaintiff has demonstrated good cause to modify the Pretrial

19 Scheduling Order to reopen both fact and expert discovery. 20 Plaintiff was diligent in assisting the court in creating a 21 workable scheduling order.
Further, the delay in responding to

22 discovery in this case was caused by calendaring errors by 23 plaintiff's counsel's assistant as well as counsel's lack of 24 experience in federal court.
Moreover, plaintiff's counsel has

25 been cooperative in signing stipulations to extend discovery for 26 almost a month with respect to defendant's supplemental expert 27 disclosures.
Finally, plaintiff filed this motion on February

28 18, 2010, promptly after it became apparent that she could not
4

1 comply with the scheduling order. 3 complete it.

Plaintiff has set forth a

2 detailed list of the anticipated discovery and estimated time to
Because plaintiff has demonstrated good cause, her

4 motion to modify the pretrial scheduling order is GRANTED, and 5 discovery is reopened. 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28
5 FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE (5) (4) (3) The scheduling order is modified as follows: (1) (2) All discovery shall be completed by May 21, 2010. Experts shall be designated by June 4, 2010. Supplemental experts shall be designated by June 25, 2010. All expert discovery shall be completed by July

23, 2010. All dispositive motions shall be heard no later than October 8, 2010. The Final Pretrial Conference is set for December 3, 2010 at 1:30 p.m. The trial is set for March 1, 2011 at 9:00 a.m.

IT IS SO ORDERED.

18 DATED: April 16, 2010