Schwartz v. Lassen County et al

Filing 92

ORDER signed by Chief Judge Morrison C. England, Jr on 2/25/13 ORDERING that Defendant's MOTION to Amend Scheduling Order 72 is GRANTED. The Pretrial Scheduling Order is MODIFIED to reflect a deadline for completing fact Discovery of 4/14/2013, a deadline for expert witness disclosure of 6/12/2013, a deadline for designating supplemental experts of 7/1/2013, and a deadline for hearing dispositive Motions of 10/11/2013. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NANCY SCHWARZ, on behalf of
herself individually as the mother of
MICHAEL PARKER, deceased; and
NANCY SCHWARZ, as representative
ad administrator of MICHAEL
PARKER’s Estate,

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ORDER

Plaintiffs,

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No. 2:10-cv-03048-MCE-GGH

v.
LASSEN COUNTY ex rel. the LASSEN
COUNTY JAIL (DETENTION
FACILITY); UNKNOWN GUARDS;
JOHN MINEAU; CITY OF
SUSANVILLE ex rel. SUSANVILLE
POLICE DEPARTMENT,
Defendants.

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In bringing the present motion, Plaintiffs seek to modify the Pretrial Scheduling

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Order (“PTSO”) issued in this matter on May 2, 2012. According to lead Plaintiff’s

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counsel, Treva Hearne, she is retiring in 2013 and new counsel needs extra time to

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review the case and decide whether any additional discovery is necessary.

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Hearne further maintains that the recent death of Plaintiffs’ expert witness, Joseph Paris,

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also warrants an extension so that a new expert can be located and retained. For the

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reasons set forth below, that motion will be granted.1

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Once a district court has filed a PTSO pursuant to Federal Rule of Civil Procedure

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16,2 that Rule’s standards control. Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 607-08 (9th Cir. 1992). Prior to the final pretrial conference, which in this case is

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set for September 19, 2013, the court may modify a status order upon a showing of

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“good cause.” See Fed. R. Civ. P. 16(b).

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“Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad faith of

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the party seeking to interpose an amendment and the prejudice to the opposing party,

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Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking

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the amendment.” Johnson, 975 F.2d at 609. In explaining this standard, the Ninth

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Circuit has stated that:

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[a] district court may modify the pretrial schedule ‘if it cannot reasonably be
met despite the diligence of the party seeking the extension.’ Moreover,
carelessness is not compatible with a finding of diligence and offers no
reason for granting of relief. Although the existence or degree of prejudice
to the party opposing the modification might supply additional reasons to
deny a motion, the focus of the inquiry is upon the moving party’s reasons
for seeking modification. If that party was not diligent, the inquiry should
end.
Id. (citations omitted).

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Here, although the originally set trial was continued from November 12, 2013 to

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February 3, 2014, by Order dated November 8, 2012 (ECF No. 68), the previously set

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deadlines for discovery (January 14, 2013), for disclosure of expert witnesses (March 12,

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2013), and for disclosure of supplemental experts (April 1, 2013) was not extended.

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Attorney Hearne’s modification request is for a three-month extension applicable to

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those deadlines as well as the July 11, 2013 cut-off date for hearing dispositive motions.

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Because oral argument was not of material assistance, the Court ordered this matter submitted
on the briefs. E.D. Cal. Local Rule 230(g).
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Unless otherwise stated, all references to “Rule” or “Rules” refer to the Federal Rules of Civil
Procedure.

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As support for that relatively modest extension, Ms. Hearne cites not only her imminent

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retirement (she is 65) but also similar plans with respect to her partner, Robert R. Hager.

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Ms. Hearne indicates that Ms. Hager’s 29-year-old son, Robert E. Hager, also a partner

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in the firm, had planned to take over the entire practice, and presumably the handling of

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this case, but died suddenly on September 18, 2012. Because young Mr. Hager’s death

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rendered his father no long able to practice law, Treva Hearne is now attempting to wind

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down and close the office. She has withdrawn from the representation of more than

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115 clients since December of 2012. Although Ms. Hearne has been successful in

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associating another attorney, Paul Quade, to handle this case as of December 14, 2012,

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she notes Mr. Quade’s time has recently been consumed with a death penalty case and

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states that he has only recently begun to review the voluminous record in this matter.

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See Pls.’ Reply, pp. 1-2. Hearne argues that, as new counsel and given her firm’s

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turmoil over the last months, Quade should have an opportunity to supplement discovery

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if he deems it prudent to do so. Moreover, as mentioned above, Plaintiffs’ expert witness

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recently died and additional time is also needed to secure an expert in the stead of

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Mr. Paris.

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Defendants’ argument in opposition is that their ability to file a motion for

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summary judgment should not be stymied by what amounts to a continuance of this

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case. Defendants appear to concede, however, that discovery is largely complete, and

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there is no impediment to submitting a summary judgment motion now should they deem

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it prudent to do so. Although it may be true that Mr. Quade, as new counsel for Plaintiffs,

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may argue he needs additional time to respond to such a motion, that is an argument for

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another day. At this juncture, after having reviewed the papers in support of and in

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opposition to the present motion, the Court finds that Plaintiffs have demonstrated good

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cause for the PTSO modification they seek. Significantly, the three-month extension that

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is sought will not affect the scheduled February 3, 2014 trial date.

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Defendant’s Motion to Amend Scheduling Order (ECF No. 72) is accordingly

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GRANTED. The PTSO is hereby modified to reflect a deadline for completing fact

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discovery of April 14, 2013, a deadline for expert witness disclosure of June 12, 2013, a

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deadline for designating supplemental experts of July 1, 2013, and a deadline for

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hearing dispositive motions of October 11, 2013.

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IT IS SO ORDERED.
Dated:

February 25, 2013

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___________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT JUDGE

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