Hart v. PAE Government Services Incorporated

Filing 54

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/22/2011 ORDERING that Dft's 49 Ex Parte Application to modify the Status (Pretrial Scheduling) Order is GRANTED. The Status (Pretrial Scheduling) Order is MODIFIED as follows: Designation of Expert Witnesses due by 11/7/2011; Discovery due by 1/13/2012; Non-Dispositive Motions filed by 3/14/2012; Final Pretrial Conference set for 6/20/2012 at 11:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller; Jury Trial set for 9/24/2012 at 09:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. The Clerk is directed to return to Pltf the flash drive that Pltf submitted to the Court on 8/15/2011. (Zignago, K.) Modified on 8/22/2011 (Zignago, K.).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN HENRY HART,

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Plaintiff,

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No. CIV S-10-1672 KJM EFB PS

vs.
PAE GOVERNMENT SERVICES
INCORPORATED,

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Defendant.
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ORDER
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This action is before the undersigned pursuant to Eastern District of California Local

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Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On August 10, 2011, defendant filed an ex parte

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application to modify the status (pretrial scheduling) order in this action, contending that the

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schedule should be modified because, to date, plaintiff has failed to respond to any discovery or

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appear for his deposition. Dckt. No. 49; see also Dckt. No. 17.

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Defendant notes that on August 5, 2011, the court ordered plaintiff to respond to

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defendant’s first request for production of documents, produce responsive documents, appear for

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his deposition, and pay monetary sanctions, but argues that because defendant was unable to

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obtain discovery from plaintiff for more than seven months, the scheduling order should be

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modified. Dckt. No. 49-1 at 3; see also Dckt. Nos. 33, 47. Defendant contends that it needs

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additional time to “to complete discovery, file further discovery and/or dispositive motions, and
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to determine whether expert witnesses are necessary based on the information Plaintiff has been

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compelled to provide in discovery (assuming Plaintiff complies with this Court’s orders),” and

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therefore seeks to continue all of the remaining dates in this action for at least three months.

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Dckt. No. 49-1 at 2, 6. Defendant notes that it was unable to secure a stipulation from plaintiff

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to modify the scheduling order despite making a good faith attempt to do so. Id. at 6.

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Plaintiff opposes the application, arguing that defendant’s request for an extension of

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time, which is defendant’s second such request, is really a “stall for time.” Dckt. No. 48 at 1.

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A Rule 16 scheduling order may be modified upon a showing of good cause. Fed. R.

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Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the

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deadline despite exercising due diligence.1 Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 609 (9th Cir. 1992). “Although the existence or degree of prejudice to the party opposing

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the modification might supply additional reasons to deny a motion, the focus of the inquiry is

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upon the moving party’s reasons for seeking modification.” Id. Here, in light of plaintiff’s

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numerous failures to respond to defendant’s discovery requests and the amount of time defendant

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was required to expend in order to obtain a court order compelling plaintiff to respond to those

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requests, defendant’s ex parte application to modify the scheduling order is supported by good

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cause and will be granted.

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Additionally, on August 15, 2011, plaintiff filed a notice of submission of documents “in

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compliance [with the] order for production of documents.” Dckt. No. 53. Plaintiff also

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submitted a flash drive containing numerous documents. Id. Plaintiff sent the documents to the

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court and to defendant. Id. at 2. However, plaintiff’s responses to defendant’s discovery

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requests need not be filed with the court. See E.D. Cal. L.R. 250.3(c); see also Dckt. No. 47

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Local Rule 144, which permits matters to be heard on shortened time, provides that
“[a]pplications to shorten time shall set forth by affidavit of counsel the circumstances claimed
to justify the issuance of an order shortening time [and] will not be granted except upon affidavit
of counsel showing a satisfactory explanation for the need for the issuance of such an order and
for the failure of counsel to obtain a stipulation for the issuance of such an order from other
counsel or parties in the action.”
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(requiring the documents to be produced to defendant). Moreover, many of the documents on

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the flash drive appear to contain confidential, private information which must be redacted before

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being filed on the public docket. See L.R. 140(a). Therefore, the Clerk of Court will be directed

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to return the flash drive to plaintiff without filing a copy of the documents contained therein.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s ex parte application to modify the status (pretrial scheduling) order, Dckt.

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No. 49, is granted.

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2. The status (pretrial scheduling) order, Dckt. No. 17, is modified as follows:

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a. The parties shall make their expert disclosures on or before November 7, 2011,
as described in the January 7, 2011 status (pretrial scheduling) order.

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b. All discovery must be completed by January 13, 2012. Motions to compel

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discovery are to be noticed for hearing no later than December 12, 2011, as more specifically

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described in the January 7, 2011 status (pretrial scheduling) order. As provided in that order, the

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word “completed” means that all discovery shall have been conducted so that all depositions

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have been taken and any disputes relative to discovery shall have been resolved by appropriate

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order if necessary and, where discovery has been ordered, the order has been complied with.

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c. All pretrial motions, except motions to compel discovery, shall be completed
on or before March 14, 2012.

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d. The final pretrial conference is continued to June 20, 2012 at 11:00 a.m. in

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Courtroom No. 3 before Judge Kimberly J. Mueller. The parties shall file pretrial statements in

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accordance with Local Rules 281 and 282.

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e. The jury trial shall commence before Judge Kimberly J. Mueller on September

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24, 2012 at 9:00 a.m. in Courtroom No. 3.

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3. The Clerk of Court is directed to return to plaintiff the flash drive that plaintiff

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submitted to the court on August 15, 2011, Dckt. No. 53, without filing a copy of the documents

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contained therein.

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SO ORDERED.
DATED: August 22, 2011.

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