Akins v. San Diego Community College District et al

Filing 94

ORDER Denying Plaintiff;s Ex Parte 91 Motion to Extend Time to Supplement and Correct Disclosures without prejudice. Signed by Magistrate Judge William V. Gallo on 11/20/2015. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RODNEY E. AKINS,
Plaintiff,

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v.

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SAN DIEGO COMMUNITY
COLLEGE DISTRICT, et al.,

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Defendants.

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Civil No. 12-CV-0576-BTM (WVG)
ORDER DENYING PLAINTIFF’S
EX PARTE MOTION TO EXTEND
TIME TO SUPPLEMENT AND
CORRECT DISCLOSURES
(Fed. R. Civ. P. 16)
(Local Rule 16.1)
(Fed. R. Civ. P. 26)

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Plaintiff’s Ex Parte Motion to Extend Time to Supplement and Correct

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Disclosures (Doc. No. 91) to extend the fact discovery deadline by ninety days came

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before the Court for resolution. For the reasons set forth below the Motion is DENIED

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without prejudice.

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1.

Background

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The Court convened a Case Management Conference on June 4, 2015 and

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provided the parties with case dates, including the fact discovery cut off date. (See

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Doc. No. 79.) On June 8, 2015, the Court issued the Case Management Conference

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Order Regulating Discovery and Other Pretrial Proceedings, which specifies that the

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fact discovery cut off deadline is December 4, 2015. (Doc. No. 80.) On November 13,

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Plaintiff filed an Ex Parte Motion to Extend Time to Supplement and Correct

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Disclosures to extend the fact discovery deadline from December 4, 2015 by ninety

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days. (Doc. No. 91.) In support, Plaintiff argues, with scant evidence, that he has been

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unable to conduct discovery from July to October due to medical treatment in Arizona.

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Defendant opposes Plaintiff’s Motion stating that Plaintiff was “responsive during his

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absence.” (Doc. No. 93.) The Court accordingly DENIES Plaintiff’s Motion without

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prejudice.

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2.

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Rule 16(b)(4) provides that the Court’s scheduling order “may be modified

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upon a showing of ‘good cause,’ an inquiry that focuses on the reasonable diligence

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of the moving party.” Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 (9th Cir.2007);

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citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). In

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Johnson, the Ninth Circuit explained,

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... Rule 16(b)’s “good cause” standard primarily concerns the diligence
of the party seeking the amendment. The district court may modify the
pretrial schedule “if it cannot reasonably be met despite the diligence of
the party seeking the extension.” Fed .R.Civ.P. 16 advisory committee’s
notes (1983 amendment) ... [T]he focus of the inquiry is upon the moving
party’s reasons for seeking modification.... If that party was not diligent,
the inquiry should end.
Johnson, 975 F.2d at 609.

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Analysis and Ruling

In part, the “good cause” standard requires the parties to demonstrate that “noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding ... diligent efforts
to comply, because of the development of matters which could not have been
reasonably foreseen or anticipated at the time of the Rule 16 Scheduling Conference
...” Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D.Cal.1999).
The facts and supporting evidence provided in the instant Motion do not
constitute good cause. Although Plaintiff contends that he was in Arizona from July
to October undergoing medical treatment, he has provided no supporting evidence of
his unavailability during this time. At best, he points to a Phoenix, Arizona, postmark
dated August 18, 2015 as proof he was unavailable. However, all this demonstrates
is that the particular letter was sent from Arizona on a specific day. Despite Plaintiff’s
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statement that he “can provide additional evidence,” he fails to attach any supporting

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documents to his Motion presently before the Court. Without further documentation

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demonstrating an extended absence for medical reasons, the Court cannot find that

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Plaintiff was in Arizona undergoing medical treatment for the entire period of July to

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October, or even if he was, that Plaintiff’s medical condition and/or treatment he

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received rendered him incapable of carrying out his discovery obligations.

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Plaintiff presents no information as to why his short term absence prevented

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him from participating in discovery. Common discovery practice is often conducted

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by parties located in various states. Mere presence in another state is not sufficient

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justification to suspend a plaintiff’s obligation to diligently pursue his claims. Without

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any evidence or information regarding Plaintiff’s inability to conduct discovery during

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this time, the Court cannot find good cause for an extension of discovery deadlines.

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Lastly, the Court questions Plaintiff’s diligence. While proper procedural

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mechanisms to conduct discovery are articulated in the Federal Rules of Civil

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Procedure, it does not appear Plaintiff has utilized these methods available to him even

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before or after his stay in Arizona. Although the Court convened a Case Management

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Conference on June 4, 2015, Plaintiff appears to have conducted no discovery in the

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month of June before his departure to Arizona in July. Similarly, although Plaintiff

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was only in Arizona until October, Defense counsel states that he has received no

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discovery from Plaintiff during the month of November either. It does not appear that

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Plaintiff has complied with basic discovery procedures or served proper discovery

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requests to date.

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3.

Conclusion

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The Court finds that Plaintiff has not adequately demonstrated his unavailabil-

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ity and inability to conduct discovery during the period of July to October. Accord-

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ingly Plaintiff has not presented good cause to extend the discovery deadline by ninety

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days and Plaintiff’s Motion is DENIED without prejudice.

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IT IS SO ORDERED.

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DATED: November 20, 2015

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Hon. William V. Gallo
U.S. Magistrate Judge

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