Fry v. San Diego County et al

Filing 53

ORDER granting in part 52 Joint Motion to extend dates regulating discovery and other pretrial proceedings. Signed by Magistrate Judge Barbara Lynn Major on 11/27/2017. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15cv2796-JM(BLM)

JEFFORY FRY,

ORDER GRANTING IN PART JOINT
MOTION TO EXTEND DATES
REGULATING DISCOVERY AND OTHER
PRETRIAL PROCEEDINGS

Plaintiff,

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v.

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SAN DIEGO COUNTY, et al.

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[ECF No. 52]

Defendants.

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On September 5, 2017, the parties filed a “JOINT MOTION TO EXTEND DATES

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REGULATING DISCOVERY AND OTHER PRETRIAL PROCEEDINGS.” ECF No. 44. The parties

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sought to extend the remaining pretrial deadlines by four months. Id. at 1. In support, the

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parties stated that Plaintiff was recovering from back surgery and was unable to be deposed or

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undergo an independent medical examination at the time. Id. at 2. Additionally, the parties

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noted that there was a pending motion to dismiss in the matter [see ECF No. 43] set to be heard

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on October 2, 2017. ECF No. 44 at 2. After finding good case, the Court granted the parties’

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motion. ECF No. 45.

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On November 21, 2017, the parties filed another “JOINT MOTION TO EXTEND DATES

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REGULATING DISCOVERY AND OTHER PRETRIAL PROCEEDINGS.” ECF No. 52. The parties

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seek to continue the remaining case deadlines by another two to three months. Id. at 2. In

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support, the parties state that they should have asked for a six month continuance in their first
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15cv2796-JM(BLM)

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joint motion to give Plaintiff sufficient time to recover and that “the holidays are now causing

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unavoidable delays.” Id. In further support, the parties state that additional time is needed to

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secure Plaintiff’s deposition, conduct an independent medical examination (“IME”), and to

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conclude discovery. Id. at 3.

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Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only

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“for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also ECF No. 31 at

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7 (stating that dates and times “will not be modified except for good cause shown”). The Rule

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16 good cause standard focuses on the “reasonable diligence” of the moving party. Noyes v.

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Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman v. Quaker Oats Co., 232 F.3d

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1271, 1294-95 (9th Cir. 2000) (stating Rule 16(b) scheduling order may be modified for “good

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cause” based primarily on diligence of moving party). Essentially, “the focus of the inquiry is

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upon the moving party’s reasons for seeking modification.” Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). However, a court also may consider the “existence or

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degree of prejudice to the party opposing the modification . . . .” Id.

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The parties have failed to establish good cause for continuing the remaining deadlines by

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another two to three months. Plaintiff’s counsel states that Plaintiff’s health is “starting to

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rebound” and that the parties “are now faced with the delays associated with the holidays”.

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ECF No. 52-1, Declaration of Andre L. Verdun (“Verdun Decl.”) at 2. Therefore, it appears that

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Plaintiff’s health is no longer the motivating factor for the requested continuance, and while the

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Court is sympathetic to the challenges that come with the busy holiday season, that is not good

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cause to extend case deadlines by another two to three months, especially in a case that has

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been pending since December 11, 2015. See ECF No. 1. Additionally, the parties’ decision to

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not propound any discovery at all because Plaintiff could not sit for a deposition or undergo an

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IME does not demonstrate diligence. Verdun Decl. at 2-3. However, given the current status

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of the case and time of year, the Court finds it appropriate to grant the parties a small

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continuance of the deadlines.

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follows:

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///

Accordingly, the parties’ motion is GRANTED IN PART as

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15cv2796-JM(BLM)

Current Deadline

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New Deadline

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Expert Designation

January 4, 2018

January 26, 2018

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Rebuttal Experts

January 18, 2018

February 16, 2018

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Fact Discovery

January 18, 2018

February 16, 2018

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Expert Reports

February 16, 2018

March 9, 2018

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Rebuttal Expert Reports

March 16, 2018

April 6, 2018

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Expert Discovery

April 13, 2018

May 8, 2018

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Dispositive Motions

June 15, 2018

June 15, 2018

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Mandatory Settlement Conference

September 7, 2018
at 9:30 a.m.

September 7, 2018
at 9:30 a.m.

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Confidential Settlement Statements

August 28, 2018

August 28, 2018

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Memo of Contentions

September 21, 2018

September 21, 2018

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Pre-trial Disclosures

September 21, 2018

September 21, 2018

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Meet and Confer

September 28, 2018

September 28, 2018

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Draft Pretrial Order

October 5, 2018

October 5, 2018

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October 12, 2018

October 12, 2018

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Proposed Final Pretrial Conference Order
& Objections to Pretrial Disclosures

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Pretrial Conference

October 19, 2018
at 8:30 a.m.

Trial

November 26, 2018
at 10:00 a.m.

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October 19, 2018
at 8:30 a.m.
November 26, 2018
at 10:00 a.m.

IT IS SO ORDERED.
Dated: 11/27/2017

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15cv2796-JM(BLM)