Jurgens v. Dubendorf, et al

Filing 48

ORDER signed by District Judge Kimberly J. Mueller on 5/19/2017 GRANTING 44 Motion to deem its three expert reports timely; MODIFYING the 23 Status (Pretrial Scheduling) Order; ORDERING that supplemental experts be disclosed by 6/9/2017; ORDERING that expert discovery be completed by 6/30/2017; ORDERING that a joint pretrial statement be filed by 7/21/2017; CONTINUING the Final Pretrial Conference to 8/11/2017 at 10:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY A. JURGENS, JR.,

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Plaintiff,

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No. 2:14-cv-02780-KJM-DB

v.

ORDER

M. DUBENDORF, et al.,

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Defendants.

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After relying on a paper-based calendaring system for over three decades,

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defendants’ counsel missed expert discovery deadlines in this case due to a clerical error.

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Defendants’ counsel immediately took steps to provide plaintiff with his clients’ expert reports,

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but the cut-off for all expert discovery has passed and defendants now move the court to deem

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timely their expert disclosures. Mot., ECF No. 44. Plaintiff opposes and asks for complete

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exclusion of defendants’ experts. Opp’n, ECF No. 45. Because the court finds defendants’ delay

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constitutes excusable neglect, the court GRANTS defendants’ motion and modifies the

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scheduling order to permit the parties’ completion of expert discovery.

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I.

BACKGROUND

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Plaintiff filed this case on November 26, 2014. Compl., ECF No. 1. On

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October 16, 2015, the court issued a pretrial scheduling order, which it modified on September 9,

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2016, based on the parties’ stipulation. Scheduling Order, ECF No. 23; Am. Scheduling Order,

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ECF No. 32. The amended scheduling order sets the following deadlines relevant here: expert

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witness disclosures due by January 3, 2017; supplemental expert disclosures due by January 24,

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2017; and expert discovery cut-off on February 17, 2017. Am. Scheduling Order at 2. The court

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also set dispositive motions to be heard by March 10, 2017, scheduled trial for August 7, 2017,

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and noted that “no further extensions of time will be granted absent extraordinary circumstances.”

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Id.

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On January 3, 2017, plaintiff timely disclosed his three initial expert witnesses and

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filed an expert report for each witness. ECF No. 37; Opp’n at 2. Defendants missed the

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January 3 deadline, a fact defendants’ counsel, James McGarry, realized only upon reviewing his

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receipt of plaintiff’s filing the next morning. McGarry Decl. at 3, ECF No. 44-2. McGarry had

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shared the modified scheduling order with his legal secretary, but she inadvertently did not record

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the discovery deadlines in their master calendar. Id. at 2; Gonzalez Decl. at 2, ECF No. 44-1. As

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a result, McGarry was not reminded of the expert deadlines when they came up. McGarry Decl.

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at 4; Gonzalez Decl. at 3.

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After learning of his mistake, counsel immediately took steps to address the error.

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McGarry spoke with plaintiff’s counsel and provided plaintiffs with the names of defendants’

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three experts. See McGarry Decl. at 4–5. Defendants produced the full reports of the three

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experts over the coming weeks. They produced one on January 24 and the other two on

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February 3. McGarry Decl. at 5. January 24 was the day of the rebuttal expert disclosure

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deadline. February 3 was after all disclosure deadlines but about two weeks before the close of

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expert-related discovery. Plaintiff’s counsel has decided not to depose any of defendants’

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experts.

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The parties repeatedly met and conferred about defendants’ untimely disclosures,
but could not come to an agreement on the admissibility of defendants’ expert evidence.
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Defendants originally noticed this motion for hearing before the magistrate judge assigned to this

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case, ECF No. 41, but the court instructed defendants to re-notice the motion for hearing before

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the undersigned, ECF No. 43, and defendants re-filed the operative motion on March 9, 2017.

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Mot. On April 3, 2017, the court submitted the matter without oral argument. ECF No. 47.

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II.

STANDARD

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As a threshold matter, the parties dispute whether Federal Rule of Civil Procedure

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6 or 37 provides the standard applicable to defendants’ motion. Sanctions for untimely discovery

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disclosures ordinarily fall under Rule 37, which provides “[i]f a party fails to . . . identify a

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witness as required by Rule 26(a) or (e), the party is not allowed to use that information or

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witness . . . unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c).

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Rule 26(a)(2) in turn requires a party disclose the identities and reports of its experts “at the times

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and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).

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However, Rule 6 contains an exception to the timing requirements of the other

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Federal Rules and this court’s scheduling order. Under Rule 6(b), “[w]hen an act may or must be

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done within a specified time, the court may, for good cause, extend the time . . . on motion made

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after the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P.

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6(b)(1). This rule also lists exceptions when a court “must not extend the time to act,” most of

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which involve post-judgment relief and none of which are relevant here. Fed. R. Civ. P. 6(b)(2).

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The rule’s language is broad, covers any “act [that] may or must be done within a specified time,”

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and does not exclude discovery disclosures from its operation. The advisory committee notes

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further emphasize Rule 6(b)’s broad reach: “Rule 6(b) is a rule of general application giving

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wide discretion to the court to enlarge [the Rules’] time limits or revive them after they have

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expired.” Fed. R. Civ. P. 6 (1946 advisory committee notes).

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Though the Ninth Circuit has not directly addressed the applicability of Rule 6(b)

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to expert disclosures under Rule 26, it has recognized how Rule 6(b) can interact with and expand

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other Federal Rules. See, e.g., Zanowick v. Baxter Healthcare Corp., 15-56034, 2017 WL

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929203, at *2 (9th Cir. Mar. 9, 2017) (“[Rule 6(b)] works in conjunction with Rule 25(a)(1) to

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provide the intended flexibility in enlarging the time for substitution”). And other courts have
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specifically applied Rule 6(b) to discovery-related issues before turning to Rules 26 or 37. See,

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e.g., Colony Apartments v. Abacus Project Mgt., Inc., 197 F. App’x 217, 223 (4th Cir. 2006)

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(applying Rule 6(b) standard to plaintiff’s motion, untimely under Rule 26, for leave to file

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supplemental expert disclosures); Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990)

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(holding that a trial court may extend time for response to interrogatories under Rule 6(b) or

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otherwise issue sanctions under Rule 37); Stark-Romero v. Nat’l R.R. Passenger Co. (AMTRAK),

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275 F.R.D. 544, 545 (D.N.M. 2011) (granting plaintiff’s request to modify scheduling order

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because plaintiff showed excusable neglect under Rule 6(b) in failing to meet the expert

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disclosure deadline); Montano v. Solomon, 2:07-CV-0800 KJN P, 2010 WL 4137476, at *3 (E.D.

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Cal. Oct. 19, 2010) (analyzing defendant’s untimely propounding of interrogatories under Rule

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6(b)); see also Los Feliz Ford, Inc. v. Chrysler Grp., LLC, CV1006077GAFMANX, 2012 WL

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12886961, at *1 (C.D. Cal. Apr. 23, 2012) (explaining that scheduling orders may be modified

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after the relevant time period has expired only if party failed to act because of “excusable

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neglect” under Rule 6(b)); but see Gurvey v. Legend Films, Inc., 09-CV-942-AJB BGS, 2011 WL

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3241832, at *1 (S.D. Cal. July 29, 2011) (requiring a party must show both “good cause” and

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“excusable neglect” under Rule 6(b) and that the party’s failure was either “substantially

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justified” or “harmless” under Rule 37(c)).

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In light of Rule 6(b)’s expansive language, and the overwhelming authority that

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applies Rule 6(b) to the discovery deadlines created by the other Federal Rules, this court finds

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that Rule 6(b) provides the applicable standard to analyze defendants’ motion. Accordingly, only

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if defendants do not satisfy Rule 6(b)’s requirements will the court turn to consider sanctions

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under Rule 37. See Geiserman, 893 F.2d 793 (suggesting this order of operations).

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As indicated above, under Rule 6(b) a court may “for good cause, extend the

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time . . . on motion made after the time has expired if the party failed to act because of excusable

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neglect.” Fed. R. Civ. P. 6(b). The Supreme Court addressed the meaning of “excusable

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neglect,” a phrase that appears in many contexts, in Pioneer Investment Services Co. v. Brunswick

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Associates Limited Partnership, 507 U.S. 380 (1993). There, the Court resolved a circuit split

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and held “neglect” embraced a failure to act “caused by inadvertence, mistake, or carelessness”
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and not just “by intervening circumstances beyond the party’s control.” Id. at 388. The Court

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next found that whether an omission was “excusable” was an equitable determination, to be made

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“taking account of all relevant circumstances.” Id. at 395. The Ninth Circuit has recognized the

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following factors as relevant in making this equitable determination: “(1) the danger of prejudice

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to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings,

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(3) the reason for the delay, including whether it was within the reasonable control of the movant,

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and (4) whether the moving party’s conduct was in good faith.” Pincay v. Andrews, 389 F.3d

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853, 855 (9th Cir. 2004) (en banc) (citing Pioneer, 507 U.S. at 395); see also Ahanchian v. Xenon

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Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (holding that a district court abuses its

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discretion by failing to engage in this four-factor test or at least the “equitable analysis” captured

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by the test); Pincay, 389 F.3d at 860 (Berzon, J., concurring) (“Pioneer . . . indicates that a district

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court may find neglect ‘excusable’ if it is caught quickly, hurts no one, and is a real mistake,

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rather than one feigned for some tactical reason—even if no decent lawyer would have made that

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error.”).

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Rule 6 requires a movant not only show “excusable neglect,” but also “good

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cause.” Fed. R. Civ. P. 6; Warkentin v. Federated Life Ins. Co., 594 F. App’x 900, 901 (9th Cir.

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2014) (stating that movant must meet both requirements). “‘Good cause’ is a non-rigorous

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standard that has been construed broadly across procedural and statutory contexts.” Ahanchian,

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624 F.3d at 1259 (9th Cir. 2010); see also Venegas-Hernandez v. Sonolux Records, 370 F.3d 183,

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187 (1st Cir. 2004) (“There is no precise formula for the ‘good cause’ analysis.”); Coon v.

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Grenier, 867 F.2d 73, 76 (1st Cir. 1989) (explaining good cause is a “liberal” standard); Stark-

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Romero, 275 F.R.D. at 547 (“Showing good cause is not . . . particularly demanding . . . .”).

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“This rule, like all the Federal Rules of Civil Procedure, ‘[i]s to be liberally construed to

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effectuate the general purpose of seeing that cases are tried on the merits.’” Ahanchian, 624 F.3d

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at 1258–59 (alteration in original) (quoting Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983)).

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III.

DISCUSSION
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Excusable Neglect
The court addresses each of the four factors identified in Pioneer to determine

whether defendants acted with “excusable neglect.”

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1.

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In this case, neither party addresses the dispositive motion hearing deadline that

Danger of prejudice

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passed on March 10, and neither party claims it was prejudiced with respect to the filing of such

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motions. There is still time for the parties to complete expert discovery in anticipation of the trial

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currently calendared for August 7,1 and additional weeks of delay to complete expert discovery

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do not by themselves create prejudice. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1225 (9th

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Cir. 2000).

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The court recognizes defendants might have gained a slight advantage by having

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seen plaintiff’s expert reports first. See Lefay v. Lefay, 1:13-CV-01362 AWI, 2014 WL 6473725,

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at *6 (E.D. Cal. Nov. 18, 2014) (“Where ones party’s expert has the benefit of reviewing an

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opposing party’s expert report before having to prepare his or her own, there necessarily is

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prejudice.”). But such an advantage can be blunted by giving plaintiff more time to depose

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defendants’ experts, if he chooses, and to produce plaintiff’s rebuttal expert reports. See id. at *7

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(deeming defendants’ expert reports timely so long as the experts were made available to

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plaintiff’s counsel). Granting defendants relief will leave the parties in substantially the same

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position as if defendants had filed the expert reports just three to four weeks sooner. Moreover, to

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the extent that prejudice to the movant is relevant to the instant motion, this factor favors

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defendants; unless the court grants some relief, defendants will be deprived of all three experts in

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litigating their case. On balance, this factor favors defendants.

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2.

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Defendants reached out to plaintiff the day after missing the initial deadline here,

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Length of delay and impact on proceedings

sent initial albeit incomplete disclosures to plaintiff a few days later, and disclosed full reports

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The trial date will be addressed and a firm date confirmed at the final pretrial conference.
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from all experts within a month. McGarry Decl. at 4–5. Although defendants waited a little over

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a month to file this motion with the court, defendants’ counsel met and conferred with plaintiff’s

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counsel during that time. Mot. Exs. 9–10. This delay was relatively short and will not

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significantly impact the proceedings. In light of defendants’ efforts to reach an agreement with

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plaintiff, a month’s time was sufficiently prompt under Rule 6(b). See Bateman, 231 F.3d at 1225

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(finding that filing of a Rule 60(b) motion, which similarly requires “excusable neglect,” one

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month after order in question was “not long enough to justify denying relief”). Thus, this factor

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also favors defendants.

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3.

Reason for the delay

The third Pioneer factor directs the court to weigh the reason for the delay,

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including whether it was within the reasonable control of the movant. This is not a case where a

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movant offers no explanation for the delay. Cf. Medina v. Wells Fargo Bank, N.A.,

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216CV00532ODWMRWX, 2016 WL 2944295, at *2 (C.D. Cal. May 20, 2016) (“Plaintiff’s

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counsel gives no reason for his failure to timely oppose Defendant’s Motion other than that he

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simply did not calendar its due date.”). Instead, defendants explain in detail a typically reliable

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calendaring system, implemented faithfully by attorneys and clerical staff at counsel’s office,

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which failed in this one instance. McGarry Decl. at 2–4; Gonzalez Decl. at 2–3. McGarry shared

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the court’s scheduling order with his assistant, and it was through some inadvertent error that the

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relevant deadlines did not make it into their master calendar. Id. Although the court could

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imagine additional steps counsel could have taken to provide redundancy and ensure compliance

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with the court’s deadlines, counsel exercised sufficiently reasonable control to prevent the delay.

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These facts are at least as sympathetic as those discussed in Pincay, where the

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Ninth Circuit affirmed a district court’s finding of “excusable neglect” based on a paralegal’s

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misreading of a rule governing a filing deadline. 389 F.3d at 855. In Pincay, the Ninth Circuit

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found that the district court did not abuse its discretion in granting relief due to “a lawyer’s failure

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to read an applicable rule,” which “is one of the least compelling excuses that can be offered.” Id.

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at 859. On the one hand, this case does not present the life-threatening emergencies that courts

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have found sufficient to support this factor. See, e.g., Bateman, 231 F.3d at 1222–23 (counsel
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was required to travel to Africa due to a family emergency); Lemoge v. United States, 587 F.3d

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1188, 1197 (9th Cir. 2009) (counsel failed to timely serve a complaint in part because he had

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severe medical complications from a staph infection that required him to undergo “three

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surgeries, skin grafts, extensive therapy, and a full regimen of medications”). But this factor does

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not require such dramatic circumstances. See, e.g., Pioneer, 507 U.S. at 398 (excusable neglect

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where counsel failed to file timely proof of claim because, contrary to usual practice, notice of the

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deadline was placed in an inconspicuous area of the notice sent to creditors); In re Zilog, Inc.,

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450 F.3d 996, 1007 (9th Cir. 2006) (same). This factor favors defendants.

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4.

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Good faith

Defendants assert they have proceeded in good faith, Mot. at 4, plaintiffs

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acknowledge defendants’ lack of bad faith, Opp’n at 8, and the court finds no evidence of bad

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faith. Thus, this final factor also favors granting defendants’ request.

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In sum, after applying Pioneer’s four-factor test, and considering the “equitable

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analysis” it facilitates, the court finds defendants’ neglect was excusable because “it [was] caught

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quickly, hurt[] no one, and [was] a real mistake, rather than one feigned for some tactical reason.”

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Pincay, 389 F.3d at 860. Defendants also establish “good cause” for relief.

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The court GRANTS defendants’ motion under Rule 6(b) and deems timely the
three defense expert reports.
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Scheduling order
As indicated above, the scheduling order can be amended to prevent any prejudice

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to plaintiff, and thus the court next considers what modifications to the scheduling order are

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appropriate to do so. The court sees no need to provide additional time for initial expert

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disclosures, but the court modifies the scheduling order to provide the parties more time to

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disclose rebuttal expert reports and to depose experts. Accordingly, the parties shall have through

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June 9, 2017 to make supplemental expert disclosures and through June 30, 2017 to complete all

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expert-related discovery. The joint pretrial statement shall now be due on July 21, 2017, and the

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final pretrial conference is rescheduled for August 11, 2017, at 10 a.m. At the final pretrial

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conference, the court will confirm a trial date and set a deadline for the parties’ trial briefs. All
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other provisions of the court’s prior scheduling orders remain in effect. See Scheduling Order,

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ECF No. 23; Am. Scheduling Order, ECF No. 32.

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IV.

CONCLUSION

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The court GRANTS defendants’ motion to deem its three expert reports timely.

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The court MODIFIES the scheduling order as follows: Supplemental expert

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disclosures due by June 9, 2017; expert discovery cut-off extended to June 30, 2017; joint pretrial

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statement due by July 21, 2017; and final pretrial conference set for August 11, 2017, at 10 a.m.

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This order resolves ECF No. 44.

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IT IS SO ORDERED.

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DATED: May 19, 2017.

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UNITED STATES DISTRICT JUDGE

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