The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO MODIFY THE SCHEDULING CONFERENCE ORDER
Trial: June 1, 2009, 8:30 a.m.
The Honorable Lawrence J. O'Neill
Pretrial Conference: May 11, 2009, 8:15 a.m.
Plaintiffs Helen and James Wathan ("Plaintiffs") filed the instant motion to continue the trial and pretrial conference on April 16, 2009. The matter was heard on April 24, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. James Hoey appeared on behalf of Plaintiffs. James Arendt appeared on behalf of Defendants Doug Hays, Jon McKnight and Russ Sharrock ("Defendants").
Trial is currently set for May 27, 2009. The pretrial conference was set for April 13, 2009, although the parties submitted a stipulation to continue the conference and were notified that the requested date was not available.
By this motion, Plaintiffs seek to continue the trial and pretrial dates. Defendants opposed the motion on April 22, 2009.
Federal Rule of Civil Procedure 16(b) provides that "[a] schedule shall not be modified except upon a showing of good cause..."
Plaintiffs seek to modify the scheduling order to accommodate their police procedures expert, Ronald Martinelli, Ph.D. Plaintiffs explain that in February 2009, Plaintiff's counsel, James Hoey, spoke with Dr. Martinelli. Dr. Martinelli did not indicate at that time that he was unavailable on that date, though counsel admitted at the hearing that the conversation was focused on ensuring that Dr. Martinelli understood that the action was going forward and availability was not discussed. On April 13, 2009, Dr. Martinelli informed Mr. Hoey that he would be out of the country for the month of May and was scheduled to testify at another trial during the first week of June, and would therefore be unavailable if trial started on May 27. Declaration of James Hoey, ¶ 4.
Plaintiffs believe that good cause exists because Mr. Hoey only recently learned that Dr. Martinelli was unavailable for a May 27, 2009, trial date. They also contend that his testimony is crucial to their action. While this may be true, the Court does not necessarily agree that it constitutes good cause. Although Mr. Hoey talked to Dr. Martinelli prior to the continuance of the trial date, he did not confirm that he was available to start trial on May 27, 2009. ...