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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DEBORAH MAIORANO,
individually, and as Successor In
Interest to ANTHONY MAIORANO,

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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.

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Before the Court is the Joint Motion of the parties, filed on October 5,

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2017, to amend the Scheduling Order. (ECF No. 30). The parties seek a 4

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month continuance of the discovery cutoff and the consequent pretrial dates.

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(Id.) As provided herein, the motion is DENIED.

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LEGAL STANDARD

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Rule 16(b)(4), Fed. R. Civ. P., provides that a schedule may be modified

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“only for good cause.” “Rule 16(b)'s ‘good cause’ standard primarily considers

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the diligence of the party seeking the amendment.” Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); Sharp v. Covenant Care

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LLC, 288 F.R.D. 465, 467 (S.D. Cal. 2012). Rule 1, Fed. R. Civ. P., provides

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that the Federal Rules of Civil Procedure “should be construed, administered,
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16cv2862-BEN-MDD

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and employed by the court and the parties to secure the just, speedy, and

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inexpensive determination of every action and proceeding.”
DISCUSSION

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The Complaint originally was filed in the Superior Court for San Diego

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County on September 29, 2016, and removed to this Court on November 22,

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2016. (ECF No. 1). The Complaint alleges that Plaintiff’s decedent, Anthony

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Maiorano, died as a consequence of injuries suffered when a sawhorse

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purchased from Defendant Home Depot and manufactured by Defendant

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Resin Partners, collapsed due to defective design of the sawhorse.
The parties conducted their required conference, pursuant to Rule 26(f),

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Fed. R. Civ. P., on January 24, 2017, and filed their Joint Discovery Plan on

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February 8, 2017. (ECF No. 12). The Early Neutral Evaluation and Case

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Management Conference was held telephonically on February 16, 2017.

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(ECF No. 17). The operative Scheduling Order was filed on February 17,

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2017. (ECF No. 18). Discovery has been open, therefore, since January 24,

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2017, following the completion of the Rule 26(f) conference. Since many

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parties do not conduct discovery until the Case Management Conference is

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held, the Court will give the parties the benefit of the doubt and say that

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discovery opened no later than February 16, 2017.
The instant motion presents Plaintiff’s request to extend the case

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management order for 4 months primarily as a consequence of a discovery

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dispute filed the same date as this motion, October 5, 2017. (ECF No. 29).

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Defendants join in the request. (ECF No. 30 at 5). The discovery dispute has

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been resolved by an Order filed this date and does not result in substantial or

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meaningful additional discovery. (ECF No. 32). The Court finds that the

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dispute was not so substantial as to justify the instant request for additional

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time.
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Of greater consequence, although Plaintiff did not disclose the date that

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the discovery requests were served upon Defendants, Defendants initial

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responses were served on Plaintiff on June 30, 2017. (ECF No. 29 at 2-3).

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Unless relief was provided by Plaintiff, the requests at issue were served on

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Defendants on or about May 30, 2017. See Rule 34(b)(2)(A), Fed. R. Civ. P.

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By that point, discovery had been open for at least 3.5 months. Although

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stating that “several” percipient witness depositions have been taken and

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premises inspected, Plaintiff has not demonstrated due diligence sufficient

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for this request to be granted.
CONCLUSION

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The instant Joint Motion to Amend the Scheduling Order is DENIED.

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IT IS SO ORDERED.

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Dated: October 24, 2017

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16cv2862-BEN-MDD