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Susan Reese v. Barton Healthcare Systems


May 10, 2011



This matter comes before the court on plaintiff's motion for relief from the scheduling order, filed on March 2, 2011. (ECF 78.) For the following reasons, the court hereby DENIES plaintiff's motion.


Plaintiff filed the complaint in this matter on July 24, 2008, and her first amended complaint on September 24, 2008. (ECF 1 & 11.) Defendant filed an answer to the first amended complaint on December 23, 2008. (ECF 20.) The court issued its pretrial scheduling order on January 14, 2009, setting the deadline for completing discovery as April 15, 2010. (ECF 22.)

Plaintiff filed the present motion for relief from the scheduling order on March 2, 2011. (ECF 78.) Defendant filed its opposition on March 23, 2011. (ECF 82.) Plaintiff filed her reply on March 30, 2011. (ECF 83.)


A. Standard

Federal Rule of Civil Procedure 16(b)(4) states: "A schedule may be modified only for good cause and with the judge's consent." The determination of "good cause" "focuses on the reasonable diligence of the moving party." Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). "The district court may modify the pretrial schedule 'if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Johnson, 975 F.2d at 609 (quoting Fed. R. Civ. P. 16 advisory committee's notes on 1983 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. [] If that party was not diligent, the inquiry should end." Id. (internal citation omitted).

B. Application

Plaintiff has not shown good cause for the granting of her motion. Plaintiff asks the court to issue this order allowing her to take the deposition of Cathy Cocking, contending that she did not seek to take this deposition before now because "she felt the case would settle at mediation, and she was trying to limit the costs in the case, in an effort to promote settlement." (Pl.'s Mot. at 2, ECF 79.) Defendant argues plaintiff does not have good cause because plaintiff knew of Ms. Cocking's identity and role since before the inception of the case, yet plaintiff never noticed her deposition, nor did plaintiff initiate any discussions regarding her deposition until February 2011. (Def.'s Opp'n at 1.) In addition, defendant maintains that the mediation plaintiff claims postponed her attempts to depose Ms. Cocking took place in January 2011, nine months after the discovery cut-off had passed. (Id.) Plaintiff does not dispute defendant's chronology.

While "[d]eadlines must not be enforced mindlessly . . ." (Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005)), "[d]isregard of the order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier." Johnson, 975 F.2d at 610. Here, plaintiff was not diligent, as is clear from the fact that this motion was brought eleven months after discovery closed. See Hamilton v. Willms, 2011 U.S. Dist. LEXIS 41771, *17 (E.D. Cal. Mar. 28, 2011) (internal citations omitted) ("This court has held that motions to extend discovery cut off dates filed even a few days before the discovery cut off date lack diligence. [] Clearly, a discovery motion filed approximately one year after the latest possible date upon which discovery had closed is not diligent."). This lack of diligence is also evidenced by the fact that Ms. Cocking was listed as a potential witness by plaintiff in the joint final pretrial statement filed on November 11, 2010, yet the very same statement indicates the parties did not anticipate any further discovery or motions. (ECF 76 at 16 & 10.) Moreover, mediation in this case took place nine months after the discovery cut-off. It is not plausible that plaintiff looked so far ahead in making a conscious decision to not depose Ms. Cocking earlier in view of possible future settlement.

Because the court has found that plaintiff was not diligent, the court need not consider whether defendant would be prejudiced by the granting of this motion.


For the foregoing reasons, plaintiff's motion is DENIED. IT IS SO ORDERED.


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