Yangas v. K2M, Inc. et al

Filing 12

SCHEDULING ORDER Granting in part and Denying in part 11 Motion to Amend Discovery/Scheduling Order. Discovery due by 4/22/2013. Motions due by 5/22/2013. Proposed Joint Pretrial Order due by 6/21/2013. Signed by Magistrate Judge Carl W. Hoffman on 09/13/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GAIL YANGAS,

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Plaintiff,

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vs.

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K2M, INC.,

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Defendant.

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2:12-cv-01311-MMD-CWH
ORDER

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This matter is before the Court on the parties’ Joint Emergency Motion to Amend
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Discovery/Scheduling Order Dates (#11), filed September 11, 2012.
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1. Emergency Motion to Extend
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The Court has reviewed the motion. It is neither an emergency nor an appropriate request
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for an extension. The parties appear to offer two reasons for the “emergency” designation: (1)
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relief may not be obtained prior to the October 23, 2012 deadline to amend the pleadings, and (2)
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the parties will suffer incurable harm if the current discovery deadlines are not extended. Neither
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of these reasons supports the “emergency” designation. Motions to extend are commonplace
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and, generally, reviewed and ruled upon quickly. For example, in this case the initial order on
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the parties’ proposed discovery plan was ruled on in less than 24 hours. More importantly, the
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applicable standard under which a request is reviewed is determined by the timeliness in which
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the request is made, not the time it may take the Court to address the request. See Local Rule
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(“LR”) 26-4.
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The parties assertion that they will suffer incurable harm if the deadlines are not extended

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is equally unconvincing and underscores the Court’s finding that this motion is not an

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appropriate request for an extension. The parties suggest that the anticipation that they will not

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be able to complete discovery within the current discovery deadlines somehow supports a finding

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of good cause for an extension. It does not. As the parties correctly note, the “good cause

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standard primarily considers the diligence of the party seeking the extension.” Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Here, the parties have not

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engaged in any discovery. Thus, if the Court were to make a finding based on diligence, it would

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have no choice but to deny the request because the parties have not yet pursued discovery.

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2. Motion for Reconsideration

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In an attempt to justify their failure to comply with LR 26-1(d) by providing sufficient

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detail supporting the initially requested extended discovery deadlines, the parties failed to

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identify this motion for what it actually is – a motion for reconsideration. While the Federal

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Rules of Civil Procedure do not explicitly recognize a petition for rehearing or motion to

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reconsider, this court has the inherent power to revise, correct, and alter interlocutory orders at

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any time prior to entry of a final judgment. See Sch. Dist. No. 5 v. Lundgren, 259 F.2d 101, 105

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(9th Cir. 1958); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006).

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This authority is governed by the doctrine that a court will generally not reexamine an issue

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previously decided by the same or higher court in the same case. Lucas Auto. Eng'g, Inc. v.

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Bridgestone/Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001); United States v. Cuddy, 147 F.3d

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1111, 1114 (9th Cir. 1998). A court has discretion to depart from the prior order when (1) the

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first decision was clearly erroneous, (2) there has been an intervening change of law, (3) the

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evidence on remand is substantially different, (4) other changed circumstances exist, or (5) a

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manifest injustice would otherwise result. Cuddy, 147 F.3d at 1114.

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None of these conditions exist. In support of the the motion, the parties, for the first time,

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provide a detailed synopsis of the anticipated discovery needs in this case. The parties were fully

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aware of the potential discovery needs of this case when the initial proposed discovery plan (#9)

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was filed and did not provide it, saying only that “this case is a complex products liability case

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involving an out of state defendant.” Nevertheless, given the courts broad discretionary power to
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control discovery, see e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988), the Court

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will extend the deadlines in this case by 90 days.

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that the parties’ Joint Emergency Motion to Amend

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Discovery/Scheduling Order Dates (#11) is granted in part and denied in part.

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IT IS FURTHER ORDERED that the Clerk of Court shall enter the following

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Scheduling Order:

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Discovery cutoff

April 22, 2013

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2.

Motions to amend pleadings and add parties

January 22, 2013

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Expert designations

February 21, 2013

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Rebuttal expert designations

March 25, 2013

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Interim status report

February 21, 2013

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Dispositive motions

May 22, 2013

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IT IS FURTHER ORDERED that any extension of the discovery deadline will not be

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allowed without a showing of good cause as to why all discovery was not completed within the

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time allotted. All motions or stipulations to extend discovery shall be received by the Court at

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least twenty-one (21) days prior to the date fixed for completion of discovery or at least twenty-

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one (21) days prior to the expiration of any extension thereof that may have been approved by

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the Court. The motion or stipulation shall include:

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a.

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A statement specifying the discovery completed by the parties as of the
date of the motion or stipulation;

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b.

A specific description of the discovery which remains to be completed;

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c.

The reasons why such remaining discovery was not completed within the

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time limit of the existing discovery deadline; and,
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A proposed schedule for the completion of all remaining discovery.

IT IS FURTHER ORDERED that if no dispositive motions have been filed within the

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time frame specified in this Order, then the parties shall file a written, joint proposed Pretrial

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Order by June 21, 2013. If dispositive motions are filed, then the parties shall file a written,
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joint proposed Pretrial Order within 30 days of the date the Court enters a ruling on said

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dispositive motions.

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DATED this 13th day of September, 2012.

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C.W. Hoffman, Jr.
United States Magistrate Judge

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