Maiorano v. Home Depot USA, Inc. et al

Filing 33

ORDER denying 30 Joint Motion to Amend Scheduling Order. Signed by Magistrate Judge Mitchell D. Dembin on 10/24/17. (Dembin, Mitchell)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 DEBORAH MAIORANO, individually, and as Successor In Interest to ANTHONY MAIORANO, 11 12 13 14 15 Case No.: 16cv2862-BEN-MDD ORDER ON JOINT MOTION TO AMEND THE SCHEDULING ORDER Plaintiff, v. [ECF NO. 30] HOME DEPOT USA, INC., and, RESIN PARTNERS, INC., Defendants. 16 17 Before the Court is the Joint Motion of the parties, filed on October 5, 18 2017, to amend the Scheduling Order. (ECF No. 30). The parties seek a 4 19 month continuance of the discovery cutoff and the consequent pretrial dates. 20 (Id.) As provided herein, the motion is DENIED. 21 LEGAL STANDARD 22 Rule 16(b)(4), Fed. R. Civ. P., provides that a schedule may be modified 23 “only for good cause.” “Rule 16(b)'s ‘good cause’ standard primarily considers 24 the diligence of the party seeking the amendment.” Johnson v. Mammoth 25 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); Sharp v. Covenant Care 26 LLC, 288 F.R.D. 465, 467 (S.D. Cal. 2012). Rule 1, Fed. R. Civ. P., provides 27 that the Federal Rules of Civil Procedure “should be construed, administered, 1 16cv2862-BEN-MDD 1 and employed by the court and the parties to secure the just, speedy, and 2 inexpensive determination of every action and proceeding.” DISCUSSION 3 The Complaint originally was filed in the Superior Court for San Diego 4 5 County on September 29, 2016, and removed to this Court on November 22, 6 2016. (ECF No. 1). The Complaint alleges that Plaintiff’s decedent, Anthony 7 Maiorano, died as a consequence of injuries suffered when a sawhorse 8 purchased from Defendant Home Depot and manufactured by Defendant 9 Resin Partners, collapsed due to defective design of the sawhorse. The parties conducted their required conference, pursuant to Rule 26(f), 10 11 Fed. R. Civ. P., on January 24, 2017, and filed their Joint Discovery Plan on 12 February 8, 2017. (ECF No. 12). The Early Neutral Evaluation and Case 13 Management Conference was held telephonically on February 16, 2017. 14 (ECF No. 17). The operative Scheduling Order was filed on February 17, 15 2017. (ECF No. 18). Discovery has been open, therefore, since January 24, 16 2017, following the completion of the Rule 26(f) conference. Since many 17 parties do not conduct discovery until the Case Management Conference is 18 held, the Court will give the parties the benefit of the doubt and say that 19 discovery opened no later than February 16, 2017. The instant motion presents Plaintiff’s request to extend the case 20 21 management order for 4 months primarily as a consequence of a discovery 22 dispute filed the same date as this motion, October 5, 2017. (ECF No. 29). 23 Defendants join in the request. (ECF No. 30 at 5). The discovery dispute has 24 been resolved by an Order filed this date and does not result in substantial or 25 meaningful additional discovery. (ECF No. 32). The Court finds that the 26 dispute was not so substantial as to justify the instant request for additional 27 time. 2 16cv2862-BEN-MDD 1 Of greater consequence, although Plaintiff did not disclose the date that 2 the discovery requests were served upon Defendants, Defendants initial 3 responses were served on Plaintiff on June 30, 2017. (ECF No. 29 at 2-3). 4 Unless relief was provided by Plaintiff, the requests at issue were served on 5 Defendants on or about May 30, 2017. See Rule 34(b)(2)(A), Fed. R. Civ. P. 6 By that point, discovery had been open for at least 3.5 months. Although 7 stating that “several” percipient witness depositions have been taken and 8 premises inspected, Plaintiff has not demonstrated due diligence sufficient 9 for this request to be granted. CONCLUSION 10 11 The instant Joint Motion to Amend the Scheduling Order is DENIED. 12 IT IS SO ORDERED. 13 Dated: October 24, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 16cv2862-BEN-MDD

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