Holzhauer v. Rhoades

Filing 206

ORDER DENYING MOTION FOR CONTINUANCE by Judge Jon S. Tigar denying 200 Motion to Continue. (wsn, COURT STAFF) (Filed on 4/8/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARY HOLZHAUER,

Case No. 13-cv-02862-JST

Plaintiff,
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ORDER DENYING MOTION FOR
CONTINUANCE

v.
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United States District Court
Northern District of California

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GOLDEN GATE BRIDGE HIGHWAY &
TRANSPORTATION DISTRICT,

Re: ECF No. 200

Defendant.

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AND RELATED CROSS-CLAIMS.

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On April 5, 2016, Defendant Golden Gate Bridge Highway & Transportation District (“the
District”) filed a motion to continue the trial scheduled for April 11, 2016. ECF No. 200. The
basis of the motion is that Captain Carl Friedrich, whom the District describes as a “liability
expert,” passed away on March 21, 2016. Id. at 2.

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This case has been pending since June 20, 2013. ECF No. 1. The accident giving rise to
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the case occurred on February 16, 2013. It resulted in the death of Harry Holzhauer and
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substantial injury to Defendant and Cross-Claimant David Rhoades.
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The case was originally set for trial on January 5, 2015, but the trial was subsequently
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continued to March 2, 2015, and again to June 22, 2015 for various reasons. See ECF Nos. 20, 28,
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78. The trial was continued yet again in June 2015 when it conflicted with a criminal trial that had
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been scheduled for the same date. ECF Nos. 178, 183. A lengthy continuance to April 11, 2016
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was the only way to fit the matter on all parties’ and the Court’s calendars. See ECF No. 183.

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The Court conducted a final pretrial conference on April 4, 2016. ECF No. 199. The
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District did not tell the Court at that time that one of its experts had died, or request a continuance

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or any other relief. See id. On April 5, 2016, the District filed this motion, which Rhoades and

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Plaintiff Mary Holzhauer both oppose. ECF Nos. 200, 204.

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The first question the Court must resolve is the burden the District must satisfy to prevail

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on its motion. The District describes the standard as one of “good cause,” citing Rule 16(b)(4) of

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the Federal Rules of Civil Procedure. ECF No. 200 at 3. Rhoades and Holzhauer argue that the

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appropriate standard is that “[t]he court may modify the order issued after a final pretrial

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conference only to prevent manifest injustice.” Fed. R. Civ. P. 16(e).

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The Court will apply the “good cause” standard. While there is an argument that this
motion involves modification of a pre-trial order in the abstract, Rhoades and Holzhauer do not

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United States District Court
Northern District of California

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identify the pre-trial order in question, and it seems more likely that the motion is directed to the

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Court’s most recent scheduling order setting the trial date. Tellingly, the only instances of the

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application of the “manifest injustice” standard the Court can find involve amendment to the

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witness list to add an additional witness shortly before trial, Canales v. Principi, 220 F.R.D. 627,

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628 (D. Colo. 2004) (expert witness); Vlasich v. Hoffman, No. 99-cv-6472, 2008 WL 3551104, at

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*2 (E.D. Cal. Aug. 13, 2008) (lay witness); Morris v. Long, No. 08-cv-01422, 2012 WL 1481526,

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at *1 (E.D. Cal. Apr. 27, 2012). Moreover, the case relied on by Rhoades and Holzhauer for the

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“manifest injustice” standard does not involve a motion for trial continuance, and the court in that

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case did not actually apply that standard. Sacramento E.D.M., Inc. v. Hynes Aviation Indus., No.

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13-cv-0288, 2014 WL 4961104, at *2 (E.D. Cal. Oct. 1, 2014) (“Defendants seek to file

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counterclaims and to amend the pretrial scheduling order in this case to allow the action to proceed

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to trial on all issues disputed among the parties.”)

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Turning to the merits, the Court finds that the District has failed to demonstrate good

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cause. Captain Friedrich’s absence will not unduly prejudice the District because Captain

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Friedrich is not the District’s only liability witness. Indeed, the District acknowledges as much in

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its motion: “While Capt. Friedrich is not the District’s sole liability expert, he was the only expert

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who had experience operating ferries and managing ferry operations on the San Francisco Bay.”

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ECF No. 200 at 2. Given that the District has other liability witnesses, depriving the District of
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Captain Friedrich’s “unique perspective” does not constitute significant prejudice. ECF No. 200

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at 2. And, since no other party will be presenting a former ferry captain as a witness, the fact that

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the District will now be unable to do so is not significant. Moreover, Captain Friedrich’s

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deposition has been taken, so at least some of his testimony can be presented by deposition.

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Particularly when added to the cumulative nature of Captain Friedrich’s testimony, the availability

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of deposition testimony is another factor weighing against a continuance. Lane v. Wallace, 579

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F.2d 1200, 1202 (10th Cir. 1978) (denial of continuance due to expert witness’s unavailability not

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abuse of discretion where testimony could be presented by deposition).

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Compared to the lack of prejudice to the District from the denial of a continuance is the
substantial prejudice to Holzhauer and Rhoades from the granting of one. “[A] continuance would

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United States District Court
Northern District of California

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prejudice [Holzhauer and Rhoades, who have] been diligently litigating this case and [are] ready

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to proceed to trial.” Universal Church, Inc. v. Standard Constr. Co. of San Francisco, Inc, No. 14-

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cv-04568-RS, 2016 WL 97452, at *1 (N.D. Cal. Jan. 8, 2016). The case has been pending for

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more than three years. The last continuance consumed nearly a year’s time because of the

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difficulty of fitting a three-week trial into the calendars of all the parties and the Court. A

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continuance at this very late stage will not only further delay what has been Holzhauer and

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Rhoades’ long-in-coming day in court; it will also increase, potentially significantly, the cost to

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them of the litigation, as their respective trial teams are required to stand down yet again and then

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reactivate after what experience suggests might be a significant delay.

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The District’s motion to continue the trial date is denied.

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IT IS SO ORDERED.

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Dated: April 8, 2016
______________________________________
JON S. TIGAR
United States District Judge

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