Figueroa v. Kern County ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VICENTE BENAVIDES FIGUEROA, Case No. 1:19-cv-00558-ADA-CDB 12 Plaintiff, ORDER ON JOINT MOTION MODIFYING 13 v. THE SCHEDULING ORDER; VACATING SETTLEMENT CONFERENCE 14 KERN COUNTY, et al. (Doc. 102) 15 Defendants. ORDER DENYING DEFENDANT COUNTY 16 OF KERN’S REQUEST TO EXTEND 17 DEADLINE TO NOTICE REBUTTAL EXPERT WITNESSES 18 (Doc. 100) 19 20 On April 29, 2019, Plaintiff Vicente Benavides Figueroa (“Plaintiff”) initiated this action 21 with the filing of his complaint. (Doc. 1). “Thereafter, the parties embarked on an arduous 22 discovery journey in this complex matter.” (Doc. 92 at 2). 23 On May 12, 2023, the parties filed a stipulation for order extending by three months all 24 discovery deadlines due to difficulties completing interrogatories, depositions, and Defendant 25 County of Kern’s then-recent discovery of aged cassette tapes related to this matter that the 26 parties represented were potentially discoverable and for which they required additional time to 27 review, transcribe, and produce. (Doc. 90 at 2-4). On May 16, 2023, the Court granted in part 28 and denied in part the stipulated request to modify the discovery schedule. (Doc. 91). One 1 month later (on June 15, 2023), the Court granted Defendant County of Kern’s renewed 2 application (later joined by Plaintiff) for additional discovery extensions based on the belatedly 3 discovered cassette tapes. (Doc. 96). Relevant here, the Court granted a 90-day extension of the 4 deadline to make rebuttal expert witness disclosures – from July 12, 2023, to October 12, 2023. 5 Id. at 5. 6 Pending before the Court is (1) the parties’ joint motion to extend case management dates 7 due to the unexpected unavailability of Plaintiff’s expert witness to appear for deposition (Doc. 8 102), (2) the request to vacate the scheduling conference by all parties except Defendant City of 9 Delano (id.), and (3) Defendant County of Kern’s motion to extend the deadline for making 10 rebuttal expert witness disclosures (Doc. 100), to which Plaintiff filed an opposition (Doc. 105). 11 On November 9, 2023, the Court convened the parties for a status conference to address the two 12 requests. (Doc. 106). 13 Based on the Plaintiff’s representations in the joint motion,1 the Court finds good cause to 14 adopt the proposed amendments to the scheduling order (as modified) and shall order the case 15 management dates be amended accordingly. The Court also finds based on Plaintiff’s 16 representations in the motion (Doc. 102 at 8 & n.2) and the parties’ statements during the status 17 conference that the settlement conference should be vacated. However, for the reasons preserved 18 on the record during the status conference and further explained below, the Court shall deny 19 Defendant County of Kern’s request for relief from the expired deadline to make its rebuttal 20 expert witness disclosures. 21 Governing Legal Standard and Analysis 22 District courts enter scheduling orders in actions to “limit the time to join other parties, 23 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3). Once 24 entered, a scheduling order “controls the course of the action unless the court modifies it.” Fed. R 25 Civ. P. 16(d). Scheduling orders are intended to alleviate case management problems. Johnson v. 26 27 1 Plaintiff represented in his motion that the proposed modifications to the scheduling order were made “with the concurrence of all Defendants” (Doc. 102 at 2) and counsel for 28 Defendants affirmed their support for the modifications during the status conference. 1 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). “A scheduling order is not a 2 frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without 3 peril.” Id. (quotation and citation omitted). Under Federal Rule of Civil Procedure 16(b), a 4 scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. 5 Civ. P. 16(b)(4). Accord, Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005) 6 (“Parties must understand that they will pay a price for failure to comply strictly with scheduling 7 and other orders”). 8 “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party 9 seeking the amendment.” Johnson, 975 F.2d at 609. If the moving party is unable to reasonably 10 meet a deadline despite acting diligently, the scheduling order may be modified. Id. If, 11 however, the moving party “‘was not diligent, the inquiry should end’ and the motion to modify 12 should not be granted.” Zivkovic v. So. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) 13 (quoting Johnson, 975 F.2d at 609). 14 Here, Defendant County of Kern argues that a nunc pro tunc extension of the expired 15 deadline for disclosing rebuttal expert witnesses is warranted because (1) counsel has been 16 unable to locate a forensic pathology rebuttal expert, (2) counsel only recently has been able to 17 locate a biomechanical rebuttal expert and that expert’s drafting of his report is ongoing, and (3) 18 counsel has had limited time to timely complete rebuttal expert tasks due to a busy trial schedule. 19 (See Doc. 100, 100-1). 20 The Court acknowledges the challenges presented to timely completing rebuttal expert 21 disclosures due to counsel’s impacted trial schedule and the limited availability of experts 22 qualified in the referenced subject matters. However, counsel was not diligent in presenting the 23 challenge to either opposing counsel or the Court for timely resolution. Thus, despite that 24 disclosure of rebuttal experts was due on October 12, 2023, counsel for Defendant County of 25 Kern first sought an extension of this deadline by email to opposing counsel one week after the 26 date had passed and did not seek relief from Court until more than ten days later. (Doc. 100 at 1- 27 2). Delaying a request for extension until after the case management date has expired is 28 inconsistent with the Court’s Local Rules and contrary to the party’s obligation to exercise due 1 | diligence. See Local Rule 144(d) (“Counsel shall seek to obtain a necessary extension from the 2 | Court or from other counsel or parties in an action as soon as the need for an extension becomes 3 | apparent.”); Zivkovic, 302 F.3d at 1087. 4 Conclusion and Order 5 For the forgoing reasons, it is HEREBY ORDERED that Defendant County of Kern’s 6 | motion for an extension nunc pro tunc of the deadline to disclose rebuttal expert witnesses (Doc. 7 | 100) is DENIED. 8 It is FURTHER ORDERED that the scheduling order is amended as follows: 9 15 16 It is FURTHER ORDERED that the settlement conference scheduled for November 27, 203 17 (Doc. 80) is VACATED. The parties may jointly propose resetting a settlement conference before 18 the undersigned by contacting the Courtroom Deputy Clerk. 19 | IT IS SO ORDERED. *0 | Dated: _ November 13, 2023 | hwrnrD Pr 71 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28