Jones v. Fgardish

Filing 43

ORDER Granting in Part and Denying in Part 42 Joint Motion to Amend Pretrial Scheduling Order. Signed by Magistrate Judge Mitchell D. Dembin on 5/18/2017. (ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JESSIE W. JONES,

Case No.: 14cv2477-MMA-MDD
Plaintiff,

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v.

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F. GARDINER,
Defendant.

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ORDER GRANTING IN PART AND
DENYING IN PART JOINT
MOTION TO AMEND PRETRIAL
SCHEDULING ORDER
[ECF No. 42]

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I.

INTRODUCTION

Jessie W. Jones (“Plaintiff”), a state prisoner proceeding through

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counsel, and F. Gardish Gardiner (“Defendant”) jointly filed a motion to

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amend the pretrial scheduling order. (ECF No. 42). Plaintiff requests the

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Court reopen discovery for the limited purpose of Plaintiff taking the

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depositions of Defendant and fact witness, Lt. Coyne. (Id. at 2). Defendant

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opposes Plaintiff’s request and instead moves the Court to mutually reopen

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expert discovery. (Id. at 7).

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II.

PROCEDURAL BACKGROUND

On April 8, 2015, this Court issued a scheduling order regulating
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discovery and other pre-trial proceedings. (ECF No. 8). Pursuant to the

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scheduling order, initial expert disclosures were due on August 7, 2015, and

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rebuttal disclosures were due on September 11, 2015. (Id. at 1). Discovery

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closed on October 9, 2015. (Id. at 2). Neither party disclosed experts, but

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Defendant did take Plaintiff’s deposition. (ECF No. 42 at 4; see ECF No. 10).

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On November 13, 2015, Defendant filed a motion for summary

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judgment. (ECF No. 14). On April 14, 2016 District Judge Anello denied

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Defendant’s motion for summary judgment. (ECF No. 27). Counsel were

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appointed to represent Plaintiff in November of 2016, more than a year after

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discovery closed. (ECF No. 34). On February 21, 2017, District Judge Anello

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issued a pretrial scheduling order, which set May 5, 2017 as the deadline for

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“[a]ny remaining discovery matters, including requests to re-open discovery.”

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(ECF No. 40 at 1).

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III. DISCUSSION
A scheduling order “may be modified only for good cause and with the

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judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard

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“primarily considers the diligence of the party seeking the amendment.”

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

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Courts have permitted the reopening of discovery where a state prisoner

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proceeding pro se moved to reopen discovery following the appointment of

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counsel after the discovery cutoff date. See, e.g., Draper v. Rosario, No. S-10-

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0032 KJM EFB, 2013 WL 6198945, at *2-3 (E.D. Cal. Nov. 27, 2013);

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Woodard v. City of Menlo Park, No. C 09-3331 SBA, 2012 WL 2119278, at *1-

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2 (N.D. Cal. June 11, 2012); Henderson v. Peterson, No. C 07-2838 SBA PR,

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2011 WL 441206, at *1-2 (N.D. Cal. Feb. 3, 2011).

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Plaintiff argues he has good cause to re-open discovery for the limited
purpose of taking two depositions because he “was unable to depose
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Defendant and Lt. Coyne before discovery closed, due to his pro se and

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inmate status.” (ECF No. 42 at 3). Defendant contends that “Plaintiff had

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ample opportunity to conduct depositions by written questions pursuant to

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FRCP 31 . . . . [and] could have propounded interrogatories to Defendant.”

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(Id. at 6). Defendant further opposes Plaintiff’s request on the grounds that

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both Defendant and Lt. Coyne “provided declarations in support of

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Defendant’s motion for summary judgment . . . . [and Plaintiff] had an

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opportunity to request further discovery before he filed his opposition to the

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motion. . . .” (Id.). Defendant asserts that he “will be prejudiced if Plaintiff

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alone is provided additional time to conduct discovery” and argues that the

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Court should permit a “mutual reopening of discovery to allow Defendant to

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identify expert witnesses” to assist the jury on causation and damages issues.

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(Id. at 7). Plaintiff notes that Defendant’s counsel’s deliberate choice not to

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engage in expert discovery does not justify reopening discovery. (Id. at 5).

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The Court finds good cause to permit Plaintiff to conduct depositions of

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Defendant and Lt. Coyne. This additional fact discovery will assist in

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resolving the matter on the merits and will not prejudice Defendant. The

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Court does not find Defendant diligently pursued expert discovery. As

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previously indicated, initial expert disclosures were due August 7, 2015 and

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rebuttals were due September 11, 2015. Neither Plaintiff nor Defendant

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disclosed experts by that deadline. Defendant’s failure to pursue expert

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discovery as a litigation strategy does not constitute good cause to reopen

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expert discovery.
IV.

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CONCLUSION

Accordingly, the Court GRANTS IN PART AND DENIES IN PART
the parties’ joint motion to amend the pretrial scheduling order as follows:
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Plaintiff’s request to reopen discovery for the limited purpose of
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conducting two depositions is GRANTED. IT IS HEREBY ORDERED that

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the discovery deadline is extended to June 19, 2017 for the limited purpose

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of permitting Plaintiff to depose Defendant and Lt. Coyne.

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Defendant’s request to reopen expert discovery is DENIED.

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All other dates, deadlines and requirements set forth in the April 8,

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2015 scheduling order [ECF No. 8] and the February 21, 2017 pretrial

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scheduling order [ECF No. 40] remain as previously set.

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IT IS SO ORDERED.

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Dated: May 18, 2017

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