Newport et al v. Burger King Corporation

Filing 344

ORDER ON COUNTER-DEFENDANT COOK'S MOTION FOR AN EXTENSION OF TIME FOR DISCOVERY by Hon. William Alsup denying 286 Motion for Extension of Time to Complete Discovery.(whalc2, COURT STAFF) (Filed on 11/21/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ROY D. NEWPORT, et al., 11 For the Northern District of California United States District Court 10 12 13 14 No. C 10-04511 WHA Plaintiffs, v. ORDER ON COUNTER-DEFENDANT COOK’S MOTION FOR AN EXTENSION OF TIME FOR DISCOVERY BURGER KING CORPORATION, Defendant. / 15 16 Pursuant to Civil Local Rule 6-3, counter-defendant Willie C. Cook moves for an 17 extension of time to designate expert testimony and disclose full expert reports and an extension 18 of time for all expert discovery (Dkt. No. 286). Defendant Burger King Corporation (“BKC”) 19 opposes the motion (Dkt. No. 292). 20 The case management order set September 30, 2011, as the deadline for designation of 21 expert testimony and disclosure of full expert reports and set November 4, as the cutoff for all 22 expert discovery. In support of the motion for an extension of time of both deadlines, Mr. Cook 23 argues he has been unable to comply with the discovery deadlines because he has “been engaged 24 in five different lawsuits,” related to the Castaneda case, which have resulted in Mr. Cook’s 25 resources “both physical and financial” being stretched thin (Dkt. No. 286 at 2). He further 26 contends that BKC’s one-day delay in answering his complaint (the answer was due on October 27 24 and BKC answered on October 25) and counsel’s “pregnancy-related disability” hindered his 28 ability to comply with the discovery deadlines (Dkt. No. 286 at 2–3). 1 Unfortunately, these reasons do not explain Mr. Cook’s delay in filing a request for an 2 extension of the deadline of September 30, which passed over a month ago, nor do they explain 3 Mr. Cook’s failure to comply with the deadlines. Mr. Cook’s financial hardship is not a basis 4 upon which an extension of time will be granted. Regarding Mr. Cook’s physical constraints, the 5 motion indicates that Mr. Cook was hospitalized during the week of October 31, but this does not 6 explain Mr. Cook’s failure to designate expert testimony and disclose full expert reports by 7 September 30. Neither does BKC’s one-day delay in filing an answer to Mr. Cook’s complaint 8 by October 24, explain this delay. Regarding counsel’s “pregnancy-related disability,” by order 9 dated September 16, 2011, counsel was granted leave to file a motion to withdraw as attorney of record. Counsel has not yet filed a motion to withdraw. The order granting counsel leave to file a 11 For the Northern District of California United States District Court 10 motion to withdraw advised that “she remains counsel of record for Mr. Cook and must continue 12 to fulfill her duty as his counsel until, if ever, she is relieved of her duty as counsel” (Dkt. No. 13 178). 14 Mr. Cook asserts that granting the motion will not unduly prejudice or harm any party 15 (Dkt. No. 286 at 3). BKC responds that it would be prejudiced because it would “need to hire 16 another expert to respond to Cook’s expert” and that BKC would not be able to comply with other 17 case-related deadlines, “especially given that Cook has not even disclosed the topics on which he 18 seeks to have an expert” (Dkt. No. 292 at 4). 19 Mr. Cook has not shown diligence in attempting to meet the deadlines set forth in the case 20 management order or good cause for granting the requested extensions. The motion for extension 21 of time for discovery is DENIED. 22 23 IT IS SO ORDERED. 24 25 Dated: November 21, 2011. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 26 27 28 2

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