(PC) Freeman v. Clark ( 2023 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LEROY FREEMAN, Case No. 1:21-cv-00611-JLT-CDB 9 Plaintiff, ORDER ON STIPULATION MODIFYING SCHEDULING ORDER 10 v. (Doc. 52) 11 CONALL MCCABE, et al., 12 Defendants. 13 14 On November 6, 2023, the parties filed a Stipulation and Proposed Order for Modifying 15 the Scheduling Order. (Doc. 49). The Court denied the stipulated request as it was not supported 16 by the required attorney declaration(s) (see Doc. 43 at 7), did not establish good cause for the 17 requested extension, and otherwise sought an unworkable modification of the scheduling order. 18 (Doc. 50). On November 9, 2023, the parties filed a renewed Stipulation and Proposed Order for 19 Modifying the Scheduling Order (“Renewed Stipulation”). (Doc. 52). The Renewed Stipulation 20 is supported by declarations from counsel for both Plaintiff and Defendants. (Docs. 52-1, 52-2). 21 In their declarations, counsel for the parties attest that they have encountered unexpected 22 challenges in undertaking discovery. For example, Plaintiff’s counsel avers that taking the 23 deposition of Dr. Khin Aye M.D., who is currently practicing medicine outside the United States, 24 has been difficult given Dr. Khin’s geographic location and use of an unreliable internet 25 connection. (Doc. 52-2 ⁋4). Plaintiff’s counsel further declares that on or around November 3, 26 2023, Plaintiff had been released from custody and transferred to an acute care facility. Id. ⁋6. 27 Plaintiff’s counsel represents that based on his experience with released CDCR inmates, Plaintiff’s transfer to medical care facilities will provide a significant impediment in scheduling 1 his deposition. 2 In addition, the parties declare that while they disagree about the underlying causation of 3 Plaintiff’s injuries, they do agree that the costs of procuring expert reports have unexpectedly 4 risen so much that private mediation of this matter might be a more favorable (and economical) 5 alternative than continuing expert discovery. See (Doc. 52-1 ⁋⁋6-7). 6 Separately, the parties’ amending filings are responsive to the Court’s direction they 7 “demonstrate[e] diligence” (see Doc. 50) in their conduct of discovery to support any request to 8 modify the scheduling order. In addition to multiple rounds of written discovery, the parties have 9 completed at least six nonexpert depositions and an independent medical examination of Plaintiff 10 and have timely identified and are preparing expert witnesses well before the close of expert 11 discovery. (Doc. 52 p. 3). 12 The parties have demonstrated due diligence and their representations concerning 13 discovery challenges and the prospect of conserving their and the Court’s resources through 14 private mediation establish good cause to modify the scheduling order. Johnson v. Mammoth 15 Recreations, Inc., 975 F.2d 604, 609-610 (9th Cir. 1992). 16 The parties’ stipulation identifies proposed dates that are inconsistent with the dates in the 17 proposed order for some of the same events – thus, whereas the stipulation requests the expert 18 discovery deadline be extended from February 1, 2024, to March 1, 2024, the proposed order lists 19 the date of January 15, 2024. Cf. Doc. 52 p. 2 with p. 5. Separately, the proposed sequencing of 20 events does not comport with the assigned district judge’s scheduling protocols (see Doc.4-1): 21 dispositive motions should not be set for filing (as the parties propose) two weeks before the close 22 of expert discovery. The Court’s adopted amendments below reflect the Undersigned’s best 23 efforts to discern the parties’ intent and incorporate it into a workable schedule. 24 Finally, the Court admonishes the parties to appropriately balance their desires to invest in 25 private mediation with a commitment to fulfilling all further discovery and pretrial events within 26 the modified scheduling order below. The Court has selected these dates in part with a view that 27 the parties should be able to complete discovery and motion practice timely without regard to the 1 Accordingly, for the forgoing reasons, IT IS HEREBY ORDERED that the scheduling 2 | order, is modified to the following extent. 3 1. The Non-Expert discovery cutoff is extended from December 15, 2023, to February 15, 4 2024. 5 2. The Expert discovery cutoff is extended from February 1, 2024, to March 15, □□□□□□□ 6 3. The Non-Dispositive Motion filing date is extended from November 15, 2023, to March 7 1, 2024. 8 4. The Non-Dispositive Motion hearing date is extended from December 20, 2023, to April 9 3, 2024. 10 5. The Dispositive Motion filing date is extended from December 15, 2023, April 1, 2024. 11 6. The Dispositive Motion hearing date is extended from February 1, 2024, to May 6, 2024. 12 7. The Pre-Trial Conference is extended from April 8, 2024, to July 8, 2024. 13 8. The Trial is extended from June 11, 2024, to September 10, 2024. 14 9. All other case management dates (Doc. 43) remain unchanged. 15 | IT IS SO ORDERED. '6 Dated: _ November 14, 2023 | Ww VV KD 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 J — SSS 7 ‘As the parties’ stipulated request to extend case management dates was filed after the deadline for disclosing expert witnesses (November 1, 2023, see Doc. 43 at 2), no additional 2g || initial experts may be disclosed; rebuttal experts must be disclosed consistent with Fed. R. Civ. P. 26(a)(2) no later than February 15, 2024.