IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 22, 2010
IRWIN DOUGLAS, PLAINTIFF,
SACRAMENTO COUNTY, ET AL., DEFENDANTS.
This action is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On January 21, 2010, defendants filed an ex parte application to modify the status (pretrial scheduling) order issued by the undersigned on November 10, 2009. Dckt. Nos. 25, 26. Specifically, defendants seek to continue the initial expert disclosure deadline from February 8, 2010 to March 15, 2010 and the rebuttal expert disclosure deadline from March 8, 2010 to April 19, 2010.*fn1 Id. at 1.
Defendants contend that an extension is necessary because defendants do not have access to plaintiff's sealed arrest records, which are at the heart of plaintiff's unlawful arrest claim, and until those records are unsealed, defendants' expert cannot prepare an accurate and timely report. Id. at 2.
Defendants contend that they "are awaiting the currently scheduled February 4, 2010, hearing in Sacramento Superior Criminal Court regarding Defendants' Petition to Unseal Plaintiff's Douglas' Records," and "[a]ssuming arguendo the Superior Court hears the matter on that day and orders release of the arrest records at the hearing, Defendants 'Rule 26' expert and Plaintiff's expert witness, if any, will need time to analyze the records and prepare an accurate report for the purposes of the initial expert disclosure." Id. Defendants further state that "[t]he nexus of Plaintiff Douglas' Complaint . . . is that he was arrested without a warrant and is now seeking remedy as against the arresting agency and officers. Without access to the underlying criminal record and the warrant upon which he was apparently arrested on the date in question, Defendants' 'Rule 26' expert cannot properly assess this allegation and accurately prepare an expert report." Id. Defendants believe that there will be a warrant within the sealed records, and anticipate that their Rule 26 expert "will offer testimony in regard to the named officers' reliance upon the valid warrant." Id.
A schedule may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification." Id.
Here, although defendants' ex parte application is not in strict compliance with the Local Rules,*fn2 the application is supported by good cause. Defendants have demonstrated that they cannot meet the expert disclosure deadlines despite exercising due diligence. It also appears that there would be little, if any, prejudice to plaintiff as a result of the extensions, since those extensions do not impact the other deadlines set forth in the November 10, 2009 scheduling order. Therefore, in light of the quickly approaching initial expert disclosure deadline, defendants' application will be granted.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' ex parte application to modify the November 10, 2009 scheduling order, Dckt. Nos. 25, 26, is granted.
2. The parties shall make their initial expert disclosures on or before March 15, 2010, and shall make their rebuttal expert disclosures on or before April 19, 2010. These modifications do not impact any of the other deadlines set forth in the November 10, 2009 scheduling order.