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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROY D. NEWPORT, et al.,

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For the Northern District of California

United States District Court

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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.
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Pursuant to Civil Local Rule 6-3, counter-defendant Willie C. Cook moves for an

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extension of time to designate expert testimony and disclose full expert reports and an extension

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of time for all expert discovery (Dkt. No. 286). Defendant Burger King Corporation (“BKC”)

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opposes the motion (Dkt. No. 292).

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The case management order set September 30, 2011, as the deadline for designation of

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expert testimony and disclosure of full expert reports and set November 4, as the cutoff for all

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expert discovery. In support of the motion for an extension of time of both deadlines, Mr. Cook

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argues he has been unable to comply with the discovery deadlines because he has “been engaged

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in five different lawsuits,” related to the Castaneda case, which have resulted in Mr. Cook’s

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resources “both physical and financial” being stretched thin (Dkt. No. 286 at 2). He further

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contends that BKC’s one-day delay in answering his complaint (the answer was due on October

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24 and BKC answered on October 25) and counsel’s “pregnancy-related disability” hindered his

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ability to comply with the discovery deadlines (Dkt. No. 286 at 2–3).

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Unfortunately, these reasons do not explain Mr. Cook’s delay in filing a request for an

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extension of the deadline of September 30, which passed over a month ago, nor do they explain

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Mr. Cook’s failure to comply with the deadlines. Mr. Cook’s financial hardship is not a basis

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upon which an extension of time will be granted. Regarding Mr. Cook’s physical constraints, the

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motion indicates that Mr. Cook was hospitalized during the week of October 31, but this does not

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explain Mr. Cook’s failure to designate expert testimony and disclose full expert reports by

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September 30. Neither does BKC’s one-day delay in filing an answer to Mr. Cook’s complaint

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by October 24, explain this delay. Regarding counsel’s “pregnancy-related disability,” by order

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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

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For the Northern District of California

United States District Court

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motion to withdraw advised that “she remains counsel of record for Mr. Cook and must continue

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to fulfill her duty as his counsel until, if ever, she is relieved of her duty as counsel” (Dkt. No.

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178).

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Mr. Cook asserts that granting the motion will not unduly prejudice or harm any party

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(Dkt. No. 286 at 3). BKC responds that it would be prejudiced because it would “need to hire

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another expert to respond to Cook’s expert” and that BKC would not be able to comply with other

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case-related deadlines, “especially given that Cook has not even disclosed the topics on which he

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seeks to have an expert” (Dkt. No. 292 at 4).

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Mr. Cook has not shown diligence in attempting to meet the deadlines set forth in the case

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management order or good cause for granting the requested extensions. The motion for extension

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of time for discovery is DENIED.

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IT IS SO ORDERED.

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Dated: November 21, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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