Emerson et al v. The Prudential Insurance Company of America

Filing 35

ORDER RE 34 JOINT STIPULATED MOTION TO AMEND THE CASE SCHEDULE AND TO CONTINUE THE TRIAL DATE. All pretrial and trial dates except mediation deadline extended by 63 days. Resulting trial date 11/18/2024. Signed by Judge William Alsup. (whalc2, COURT STAFF) (Filed on 6/5/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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FRANK EMERSON and MARIA
EMERSON, by her guardian ad litem,
FRANK EMERSON,

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Plaintiffs,

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v.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,

No. C 23-02158 WHA

ORDER RE JOINT STIPULATED
MOTION TO AMEND THE CASE
SCHEDULE AND TO CONTINUE
THE TRIAL DATE

Defendant.

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Parties jointly stipulate and move to amend the case schedule and to continue the trial

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date from September 16, 2024 to March 17, 2025 (Br. 2). This is parties’ fourth request to

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amend the schedule (Stip. ¶ 14). They promise it is their last (id. ¶ 16). In sum, parties

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propose not changing the mediation date, advancing all pretrial dates by up to 104 days, and

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advancing the trial dates by 182 days (including the final pretrial conference) (see Br. 2–3).

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Good cause is shown to grant parties’ request, but only partway.

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“A schedule may be modified” under Rule 16(b)(4) “only for good cause and with the

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judge’s consent.” “‘[G]ood cause’ means scheduling deadlines cannot be met despite

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[requesting parties’] diligence.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609

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(9th Cir. 1992). “Although . . . prejudice to the party opposing the modification might supply

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additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s

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reasons for seeking modification.” Ibid. Here, both parties move for modification, putting

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prejudice beyond the scope of inquiry. “If [requesting parties were] not diligent, the inquiry

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should end.” Ibid. Parties in sum provide two reasons for amending the case schedule:

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First, parties point to new evidence. When a January 2024 test of Maria Emerson

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showed results that surprised Prudential, parties agreed to two more Rule 35(b)(6) independent

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medical examinations (Stip. ¶ 1, 4). The reports from those exams were received in April and

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May 2024 (id. ¶¶ 5–6) — prompting new discovery and expert preparation impossible within

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the case calendar (id. ¶¶ 7–15). Sounds good so far.

United States District Court
Northern District of California

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Some of the above developments, however, were not all that new: Parties knew or

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should have known about the complications flowing from Mrs. Emerson’s results when they

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previously requested to amend the case schedule. Parties’ third request, for instance, came

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after the surprising test result, after both additional examinations, and after the first exam

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report was received (compare id. ¶¶ 3–6, with id. ¶ 14). Moreover, some of the delays

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purportedly flowing from those developments do not flow from them at all. “Parties and their

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witnesses, percipient and expert,” wish to take “various summer holidays” (id. ¶ 13). Please

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do. But parties already should have planned for those summer holidays to meet the existing

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schedule — which, like a steer through a chute, runs straight through summer.

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Second, parties point to Prudential’s convenience: After accounting for the new discovery

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and other pretrial needs, “Prudential [then] offered the earliest available date for trial which

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does not conflict with existing trial obligations (March 17, 2025)” (Br. 2; see also Stip. ¶ 15).

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In short, after proposing a 105-day extension to pretrial dates, Prudential proposed an extra 77-

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day extension to the trial date. Prudential is a large insurance company. Its outside counsel,

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Dentons, LLP, is a large law firm with over 1,000 lawyers and professionals in the United

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States. That none of its diligent lawyers — not even its junior ones (see Dkt. No. 25 ¶ 8) —

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can be found to present its case any sooner strains credulity. Imprudent to swear otherwise.

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Finally, without pointing to any reason: Parties propose extending various pretrial dates

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various amounts: all by up to 105 days, but some by 105 days, some by 84 days, and some by

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74 days (see Br. 2–3). These varied extensions would result in varying the order of scheduled

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events. Parties provide no cause for doing so.

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For all the above reasons, good cause is shown to keep the mediation date and to advance
all other dates by 63 days, as follows:

United States District Court
Northern District of California

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Event

Prior

Requested

ORDERED

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Deadline to Mediate

July 1

July 1

July 1, 2024

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Expert Reports: Opening

May 31

Sept. 13

August 2, 2024

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Expert Reports: Reply

June 14

Sept. 27

August 16, 2024

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Expert Reports: Rebuttal

June 21

Oct. 4

August 23, 2024

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Fact Cutoff

July 1

Sept. 13

September 2, 2024

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Expert Cutoff

July 5

Oct. 18

September 6, 2024

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Last Day: Dispositive Motions

July 11

Oct. 3

September 12, 2024

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Final Pretrial Conference

Sept. 4

Mar. 5 (2025)

November 6, 2024

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Trial

Sept. 16

Mar. 17 (2025)

November 18, 2024

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If the new dates do not work for counsel, we will stick with the original dates.

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IT IS SO ORDERED.

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Dated: June 5, 2024.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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