The opinion of the court was delivered by: The Honorable Michael B. Donley,
MOTION TO MODIFY PRE-TRIAL SCHEDULING ORDER; AND ORDER
Defendant Michael Donley, Secretary of the Air Force ("Secretary"), hereby respectfully moves to modify the Pretrial Scheduling Order.
I. FACTS IN SUPPORT OF THE MOTION
On March 4, 2009, Karen Taylor, proceeding in propria persona, filed a Second Amended Complaint asserting claims against the Secretary under various federal statutes and theories of liability, including Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The Secretary filed an Answer with respect to the Title VII and Rehabilitation Act claims, and filed a motion to dismiss the remaining claims. On March 26, 2010, the Court entered an order granting the Secretary's motion to dismiss and setting the matter for a Status (Pretrial-Scheduling) Conference. Docket Entry ("D.E.") Nos. 43, 44, 45.
On May 7, 2010, the parties appeared before this Court for a Status (Pre-Trial Scheduling) Conference. D.E. 48. On May 11, 2010, the Court issued its pretrial scheduling order setting forth the following schedule:
Deadline for designation of Plaintiff's experts: November 5, 2010 Deadline for designation of Defendant's experts: November 19, 2010 Deadline for designation of rebuttal experts: December 3, 2010 Close of discovery: January 14, 2011 Deadline for pretrial motions to be heard: March 4, 2011 Pretrial conference: June 17, 2011 Trial: August 15, 2011 D.E. 49.
On November 2, 2010, Plaintiff filed a document that listed 18 individuals who she intends to call as expert witnesses. D.E. 50.
On November 17, 2010, the undersigned counsel substituted in as counsel for record in place of Assistant United States Attorney Todd Pickles. From approximately May 2010 to the present, Mr. Pickles has been actively engaged in litigating numerous cases, which have severely limited his availability to actively engage in and complete discovery in the present action. See Declaration of Todd Pickles, ¶¶ 2-3. Mr. Pickles has also been in the process of transitioning to a position in the criminal unit. Id., ¶ 4. Much of this situation was not foreseen by Mr. Pickles at the time he participated in the pretrial conference. Id. at ¶ 5. The undersigned is taking over primary responsibility for this case, and needs time to prepare for the defense of this action.
A pretrial scheduling order may be modified by the court upon a showing of good cause.
Fed. R. Civ. P. 16(b)(4). The good cause standard primarily involves the diligence of the party seeking the modification, including participation in setting the schedule, efforts to abide by the schedule, and seeking modification of the schedule once it appears no longer workable. See, e.g., Johnson v. Mammoth Recreations, Inc, 975 F.2d 604, 609 (9th Cir. 1992).
There is good cause to modify the scheduling order in this case. As noted, there is new counsel of record for the Secretary who needs time to prepare to defend the action, including taking the deposition of Plaintiff and potentially designating and deposing experts. Although the time to complete discovery has not yet concluded, it is most efficient to permit the Secretary to take Plaintiff's deposition before determining whether it needs to retain and/or designate potential experts, all of which may require the expenditure of public resources. Unfortunately, former counsel's schedule severely limited his ability to complete discovery as intended, primarily because of situations unforeseen at the time the schedule was set. Moreover, it could not have been reasonably foreseen that Plaintiff would designate eighteen individuals from whom she indicates she may attempt to elicit expert testimony. Their disclosure might necessitate additional discovery or at least requires additional time to prepare for Plaintiff's deposition. Moreover, the Secretary has ...