United States of America v. Sierra Pacific Industries et al
Filing
327
ORDER signed by Judge Kimberly J. Mueller on 11/28/2011 DENYING, without prejudice, the 325 Stipulation and Proposed Order for Extension of the Expert Discovery Deadline. The parties may refile an updated stipulation within 14 days. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
Plaintiff,
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NO. CIV S-09-2445 KJM-EFB
v.
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SIERRA PACIFIC INDUSTRIES; et al.,
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Defendants.
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ORDER
This matter comes before the court upon the parties’ stipulation to extend the
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expert discovery deadline for the fifth time. (ECF 325.) Federal Rule of Civil Procedure
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16(b)(4) states that “[a] schedule may be modified only for good cause and with the judge’s
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consent.” “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party
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seeking the amendment. The district court may modify the pretrial schedule ‘if it cannot
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reasonably be met despite the diligence of the party seeking the extension.’” Johnson v
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Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting FED. R. CIV. P. 16
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advisory committee’s notes (1983 amendment)). “Although the existence or degree of prejudice
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to the party opposing the modification might supply additional reasons to deny a motion, the
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focus of the inquiry is upon the moving party’s reasons for seeking modification. [citation
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omitted] If the party was not diligent, the inquiry should end.” Id.
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Here, the parties simply contend that “the parties have collectively disclosed more
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than 70 experts and have conducted approximately 40 expert depositions” and “[m]ore than 30
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expert depositions remain.” (Stip. at 2.) At the same time, they represent they will now be able
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to complete the remaining depositions by December 9, 2011. (Id.) The parties have had more
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than a year, since at least February 11, 2010 – the date on which the status (pretrial scheduling)
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order was issued –, to conduct expert discovery. Given the short extension of time requested by
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parties, the number of depositions remaining, and the course of conduct of this litigation thus far,
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the court is not persuaded the current request will in fact be the last such request.
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For the foregoing reasons, the parties’ request is DENIED without prejudice. The
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parties may file, within fourteen (14) days of the entry of this order, an updated stipulation
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setting forth a realistic expert discovery deadline. Thereafter, the court will look with disfavor
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upon further requests to modify the scheduling order, particularly when they are filed on the last
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day of the time period for which an extension is sought. Local Rule 144(d).
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IT IS SO ORDERED.
DATED: November 28, 2011.
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UNITED STATES DISTRICT JUDGE
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