UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 16, 2010
SARA MONROE, PLAINTIFF,
ZIMMER US, INC.; ZIMMER, INC.; AND DOES 1 THROUGH 25, DEFENDANTS.
The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
MEMORANDUM AND ORDER
This matter is before the court on plaintiff Sara Monroe's ("plaintiff" or "Monroe") motion to modify the pretrial scheduling order, pursuant to Federal Rule of Civil Procedure 16, to re-open discovery cut-off and expert disclosure dates for at least thirty (30) days.*fn1 Defendants Zimmer US, Inc. and Zimmer, Inc. (collectively "defendants") oppose the motion. For the reasons set forth below,*fn2 plaintiff's motion is GRANTED.
On October 16, 2008, plaintiff filed a complaint in the Superior Court of the State of California for the County of Shasta against defendant, alleging state law claims of general negligence and products liability. Defendant removed the case from state court on December 3, 2008 on the basis of diversity jurisdiction. The parties filed a Joint Status Report on February 2, 2009.
On February 3, 2009, the court issued a Pretrial Scheduling Order, setting a discovery deadline of February 5, 2010. Initial expert disclosures were due on February 19, 2010 and supplemental expert disclosures were due on March 11, 2010. On March 6, the parties stipulated to extend the supplemental expert witness disclosure deadline to April 5, 2010.
Plaintiffs' counsel contends that he was unaware of the discovery deadline until January 21, 2010 because his assistant failed to follow the customary practice of noting dates months ahead of the deadlines to conduct discovery and to retain experts. (Decl. of Bonnie Prather ("Prather Decl."), filed Feb. 18, 2010, ¶ 3; Decl. of Steward C. Altemus ("Altemus Decl."), filed Feb. 18, 2010, ¶ 22.) Counsel also contends that because he practices almost exclusively in state court where discovery is only cut-off in the two months prior to trial, he did not contemplate that discovery deadlines were close or had passed. (Altemus Decl. ¶¶ 16, 19.) Counsel also believed that fact discovery had been extended to March 8, 2010, based on a stipulation that had not been filed with the court.*fn3 (Id. ¶ 34.)
Furthermore, plaintiff's counsel asserts that he did not realize defendants intended to challenge the qualifications of plaintiff's expert until the deposition taken on February 2, 2010. (Id. ¶¶ 25, 28.) At that point he realized he needed to retain the testimony of an expert to opine on the relationship between the medical device used in plaintiff's case and the damages suffered by plaintiff. (Id. ¶ 29.)
On February 18, 2010, plaintiff filed a motion to modify the pretrial scheduling order to reopen discovery. Plaintiff contends that such an extension is necessary to complete discovery, including both factual discovery and expert disclosures. (See id. ¶ 47.)
A pretrial order "may be modified only for good cause." Fed. R. Civ. P. 16(b). The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting Fed. R. Civ. P. 16, advisory committee's notes (1983 amendment)). The "good cause" standard set forth in Rule 16 primarily focuses upon the diligence of the party requesting the amendment. "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.
The moving party may establish good cause by showing "(1) that [he or she] was diligent in assisting the court in creating a workable Rule 16 order; (2) that [his or her] noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding [his or her] diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment of the Rule 16 order, once it became apparent that [he or she] could not comply with the order." Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)(citations omitted).
Plaintiff has demonstrated good cause to modify the Pretrial Scheduling Order to reopen both fact and expert discovery. Plaintiff was diligent in assisting the court in creating a workable scheduling order. Further, the delay in responding to discovery in this case was caused by calendaring errors by plaintiff's counsel's assistant as well as counsel's lack of experience in federal court. Moreover, plaintiff's counsel has been cooperative in signing stipulations to extend discovery for almost a month with respect to defendant's supplemental expert disclosures. Finally, plaintiff filed this motion on February 18, 2010, promptly after it became apparent that she could not comply with the scheduling order. Plaintiff has set forth a detailed list of the anticipated discovery and estimated time to complete it. Because plaintiff has demonstrated good cause, her motion to modify the pretrial scheduling order is GRANTED, and discovery is reopened.
The scheduling order is modified as follows:
(1) All discovery shall be completed by May 21, 2010.
(2) Experts shall be designated by June 4, 2010. Supplemental experts shall be designated by June 25, 2010. All expert discovery shall be completed by July 23, 2010.
(3) All dispositive motions shall be heard no later than October 8, 2010.
(4) The Final Pretrial Conference is set for December 3, 2010 at 1:30 p.m.
(5) The trial is set for March 1, 2011 at 9:00 a.m.
IT IS SO ORDERED.