The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Presently before the Court is Plaintiffs' Motion to Modify the Court's Pretrial Scheduling Order ("PTSO") so as to permit a motion to compel to be heard before the assigned magistrate judge. Plaintiffs claim to have sustained personal injuries while doing work for Defendant Vezer Industrial Professionals, Inc. ("Vezer") at a gold mine in La Libertad, Nicaragua, owned by Central Sun Mining and its successor-in-interest, Third-Party Defendant B2 Gold.
The deadline for completing non-expert discovery in this matter was December 2, 2011, pursuant to an extension granted by this Court on October 21, 2011. That extension was less than the ninety days requested by Plaintiffs, in part because an April 12, 2012 trial date was then pending. Plaintiffs immediately scheduled needed discovery after that extension was granted, including the deposition of the person most knowledgeable for Defendant Vezer pursuant to Federal Rule of Civil Procedure 30(b)(6). Plaintiffs also, on October 24, 2011, filed a motion to compel discovery responses from Vezer. By order filed November 29, 2011, the magistrate judge found that Vezer had breached its duty to preserve discoverable evidence. Monetary sanctions were imposed and the magistrate judge suggested that additional discovery might be necessary to obviate the spoliation that had occurred. See November 29, 2011 Order, ECF No. 135, 14:12-19.
Given the discovery cutoff that occurred just three days after the magistrate judge issued her order, Plaintiffs obviously could not move to compel additional discovery consistent with that order before December 2, 2011.
According to Plaintiffs, Vezer also refused to answer another pending discovery request on November 23, 2011, also at a time when bringing a motion to compel was logistically not feasible. Moreover, with respect to the deposition of the person most knowledgeable at Vezer, Vezer objected to that deposition just one day before it was scheduled to commence on November 17, 2011, again making it impossible to challenge the propriety of that objection before discovery expired.
Once a district court has filed a PTSO pursuant to Rule 16, as it did in this matter on July 27, 2010, the standards set forth by Rule 16 control. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Prior to the final pretrial conference, a court may modify a status order upon a showing of "good cause." See Fed. R. Civ. P. 16(b).
"Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609. In explaining this standard, the Ninth Circuit has stated that:
[a] district court may modify the pretrial schedule 'if it cannot reasonably be met despite the diligence of the party seeking the extension.' Moreover, carelessness is not compatible with a finding of diligence and offers no reason for granting of relief. 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.
Given the circumstances outlined above, the Court finds that the requisite showing of good cause has been made. Plaintiffs should be permitted to seek specific redress from the magistrate judge with respect to any needed discovery given the spoliation of evidence and, further, should be permitted to challenge the propriety of Vezer's eleventh-hour objections to pending discovery. The Court's finding in this regard is motivated, in part, by the fact that trial of this matter has now been continued to February of 2013, so that the time constraints associated with the abbreviated extension granted on October 21, 2012, no longer apply.
In modifying the Court's Scheduling Order so as to permit the appropriate motion to compel to be brought before the magistrate judge, and in empowering the magistrate judge to authorize such additional discovery as she deems appropriate under the circumstances, the Court must emphasize that this order in no way is intended to reflect on the merits of Plaintiffs' requests. Instead, it simply is intended to afford Plaintiffs the opportunity to seek redress from the magistrate judge as to the alleged discovery abuses and to permit the magistrate judge to authorize additional discovery within the confines of the discovery period as she believes is necessary.
The Motion to Modify Scheduling Order (ECF No. 137) is accordingly GRANTED *fn1 for the limited purpose of pursuing a motion to compel as set forth above. No other modifications of the Scheduling Order are being made.