Monroe v. Zimmer US, Inc. et al

Filing 71

MEMORANDUM and ORDER denying 66 Motion for Extension to extend witness disclosure deadline signed by Judge Frank C. Damrell, Jr on 8/17/2010. (Matson, R)

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. CIV. S-08-2944 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") motion to modify the pretrial scheduling order, 21 pursuant to Federal Rule of Civil Procedure 16, to extend the 22 deadline for disclosure of expert witnesses.
Pursuant to the

23 court's scheduling order of May 11, 2010 (Docket #50), the 24 parties were required to disclose experts by July 6, 2010. 25 Plaintiff now moves to extend the deadline to permit her to 26 disclose damages experts by August 30, 2010; plaintiff asserts 27 good cause exists for the extension in light of her retention of 28 new counsel on July 8, 2010.
Defendants Zimmer US, Inc. and

1 Zimmer, Inc. ("defendants") oppose the motion, arguing 2 plaintiff's retention of additional co-counsel in the case does 3 not warrant a finding of good cause to permit the requested 4 extension.1 5
This court previously granted plaintiff an extension of the

6 expert witness deadline, finding that plaintiff should not be 7 prejudiced by her counsel's admitted failure to properly calendar 8 the applicable deadlines in the case. 9 April 16, 2010 [Docket #43].)
(See Mem. & Order, filed The court extended the original (Id.) The

10 deadline of February 19, 2010 to June 4, 2010.

11 parties subsequently agreed to a further extension of the 12 deadline to July 6, 2010, and the court approved the parties' 13 stipulation.
(Docket #50.) On July 8, 2010, plaintiff filed

14 Notices of Appearance adding co-counsel Schachter, Hendy & 15 Johnson ("Schachter"). 17
(Docket #s 60-62.) Her original counsel,

16 Altemus & Wagner, remain as counsel of record.
A pretrial order "may be modified only for good cause." The district court may modify the

18 Fed. R. Civ. P. 16(b).

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

21 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) 22 (quoting Fed. R. Civ. P. 16, advisory committee's notes (1983 23 amendment)). 25 amendment. 26 27 28
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 230(g). 2
1

The "good cause" standard set forth in Rule 16

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

1 party opposing the modification might supply additional reasons 2 to deny a motion, the focus of the inquiry is upon the moving 3 party's reasons for seeking modification." 4
Id. The moving party may establish good cause by showing "(1)

5 that [he or she] was diligent in assisting the court in creating 6 a workable Rule 16 order; (2) that [his or her] noncompliance 7 with a Rule 16 deadline occurred or will occur, notwithstanding 8 [his or her] diligent efforts to comply, because of the 9 development of matters which could not have been reasonably 10 foreseen or anticipated at the time of the Rule 16 scheduling 11 conference; and (3) that [he or she] was diligent in seeking 12 amendment of the Rule 16 order, once it became apparent that [he 13 or she] could not comply with the order." 15
Jackson v. Laureate,

14 Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted).
Here, plaintiff has not shown good cause to permit an Plaintiff had an

16 extension of the expert witness deadline.

17 adequate opportunity to disclose a damages expert; her lack of 18 diligence in doing so does not comport with the good cause 19 required to extend the disclosure deadline.
Shewbridge v. El

20 Dorado Irrigation Dist., 2007 WL 1294392, *2 (E.D. Cal. Apr. 30, 21 2007) (emphasizing that diligence of the moving party is the 22 threshold factor in determining whether good cause exists). 23 Since the inception of the case, plaintiff and her counsel have 24 known that damages is an essential element of plaintiff's 25 products liability claims, and that if plaintiff desired to use 26 an expert, disclosure had to made in accordance with the court's 27 scheduling order.
That order was subsequently modified by the

28 court in April and May 2010, and plaintiff and her counsel were
3

1 well aware of the applicable deadlines, as the extensions were 2 granted at plaintiff's request, via plaintiff's prior Rule 16 3 motion, and later at the parties' request, via a stipulation 4 filed with the court.
Plaintiff offers no justification for

5 failing to disclose a damages expert earlier; namely, no facts 6 demonstrating that she later learned of the necessity for such 7 expert or discovered any reason for the testimony only after the 8 disclosure deadline. 9
Instead, she moves for relief herein on the ground that the Plaintiff is

10 retention of new counsel justifies the extension. 11 incorrect. 12 new counsel.

Plaintiff has added co-counsel; she has not retained Indeed, her original counsel continues to represent

13 her and fully participated in the prior proceedings establishing 14 the applicable deadlines. 16 in the action. 17
Because plaintiff has not shown the requisite diligence, the However, it No good cause exists to permit an

15 extension of the deadline based on Schachter's recent involvement

18 court need not consider any prejudice to defendants.

19 notes that at this juncture in the case, defendants would be 20 prejudiced by any further extension of the disclosure deadlines. 21 Currently, all expert discovery is due to be completed by August 22 24, 2010, and dispositive motions must be filed by September 23, 23 2010.
At this point in the case, further expert disclosures by

24 plaintiff would impair defendants' ability to prepare their 25 summary judgment motion. 26 /// 27 /// 28 ///
4

1 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Accordingly, plaintiff's motion to extend the expert witness

2 disclosure deadline is DENIED.
IT IS SO ORDERED.

4 DATED: August 17, 2010

FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

5