Robinson v. HD Supply, Inc.

Filing 70

ORDER signed by Magistrate Judge Allison Claire on 7/26/2013 ORDERING that the court DECLINES to modify its order to the extent it asks for a modification of Judge Burrell's scheduling order. Any such requests shall be directed to Judge Burrell directly. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRIS ROBINSON,

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No. 2:12-cv-604 GEB AC

Plaintiff,
v.

ORDER

HD SUPPLY, INC.,
Defendant.

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On July 19, 2013, the undersigned denied plaintiff’s motion to exclude defendant’s expert

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witness, but directed defendant to supplement its expert’s disclosures on or before July 24, 2013

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as follows: defendant shall submit to plaintiff signed copies of all of Dr. Alan Brooker’s

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submissions, shall identify deposition or arbitration testimony from other cases in which Dr.

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Brooker was involved, shall direct Dr. Brooker to specify which of the many functions plaintiff

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could continue to perform at HDS, and shall specify “the basis and reasons” for each of Dr.

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Brooker’s opinions. On the same day, the court also denied defendant’s motion to compel an

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independent medical examination (“IME”) of plaintiff.

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Defendant has now filed an ex parte application to modify this court’s July 24, 2013

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deadline for supplementation because (1) Dr. Brooker has been unavailable to prepare a

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supplemental report, (2) on July 22, 2013, plaintiff produced a disc containing over 3,000 pages

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of documents, which includes additional medical records, and (3) it intends to file a motion for
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reconsideration of the undersigned’s order denying defendant leave to conduct an IME.

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Defendant asks for an additional 60 days to comply with the undersigned’s July 19, 2013 order.

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For the reasons set forth here, this ex parte application will be denied.

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On July 2, 2012, the Honorable Garland E. Burrell, Jr. issued a pretrial scheduling order

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setting the discovery deadline as July 21, 2013, the deadline for filing dispositive motions as

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September 23, 2013, and the date for the final pretrial conference as November 18, 2013. ECF

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No. 17. Pursuant to the stipulation of the parties, Judge Burrell modified the discovery deadline

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on July 24, 2013 for the limited purpose of completing the depositions of plaintiff’s former

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supervisor, a former employee of defendant, and Dr. Brooker. ECF No. 67. Discovery therefore

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is now closed other than to conduct these three depositions, which must be completed by August

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30, 2013.

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In light of these deadlines, the undersigned finds that defendant’s request for a sixty-day

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extension of time to supplement Dr. Brooker’s report would interfere substantially with Judge

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Burrell’s scheduling order. Were defendant to prevail on its request, Dr. Brooker’s supplemental

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report would be due on or around the date for filing dispositive motions. This, of course, would

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leave hardly any time for plaintiff to review the report before filing his own dispositive motion,

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should he so wish.

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Additionally, the court rejects defendant’s argument that it “is without fault in creating the

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current situation because it has acted diligently.” Convinced of its diligence, defendant argues

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that it was “unexpected that the Court would set a one-week deadline to prepare and serve a

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supplemental expert report.” ECF No. 68 at 6. But it was precisely because of its failure to

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provide a complete expert report in the first instance that plaintiff asked the court to order

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supplementation, and defendant has been on notice since at least April 2013 that the expert’s

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report was deficient. Moreover, the one-week deadline was set because Judge Burrell, in the

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scheduling order, defined “completed” in the context of discovery to mean that “any disputes

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relative to discovery shall have been resolved by appropriate orders, if necessary, and, where

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discovery has been ordered, the order has been complied with or, alternatively, the time allowed

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for such compliance shall have expired.” ECF No. 17 at 2. Here, the parties’ discovery motions
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were set for hearing on July 17, 2013, with less than one week’s time to comply with any

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discovery orders before the discovery deadline. Therefore, the one-week deadline should not

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have been unexpected.

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Accordingly, IT IS HEREBY ORDERED that the court declines to modify its order to the

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extent it asks for a modification of Judge Burrell’s scheduling order. Any such requests shall be

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directed to Judge Burrell directly.

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DATED: July 26, 2013

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___________________________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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/mb;robi0604.jo

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