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Nora Manni v. San Diego

December 4, 2012

NORA MANNI,
PLAINTIFF,
v.
SAN DIEGO, CITY OF; DOES 1-10 INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: David H. Bartick United States Magistrate Judge

ORDER FOLLOWING DISCOVERY CONFERENCE AND ORDER

MODIFYING SCHEDULING ORDER

On November 28, 2012, the Court conducted a telephonic Discovery Conference at the request of counsel for the parties. Appearing before the Court were: Thomas Seabaugh, Esq., counsel for Plaintiff; and Stacy Plotkin-Wolff, Esq., counsel for Defendants City of San Diego and Officer Salvador Hurtado. The parties' discovery dispute relates to whether an independent medical examination ("IME") of Plaintiff scheduled for December 5, 2012 is appropriate and should go forward.

I. BACKGROUND

A. Plaintiff's Complaint

Plaintiff brings this action against Defendants alleging various violations of the United States Constitution and California state law in connection with a June 6, 2010 encounter between Plaintiff and Officer Hurtado. Plaintiff alleges that while on a public street in San Diego, California, Officer Hurtado approached her, forced her hands behind her back without warning, slammed her into the trunk of a police car and violently pulled her arm resulting in a broken arm. Plaintiff further alleges that she requested medical aid and was denied such care despite her obvious injuries.

B. Scheduling Order

On November 1, 2011, following a Rule 16 Case Management Conference, the prior Magistrate Judge assigned to this matter issued a Scheduling Order Regulating Discovery and Other Pretrial Proceedings. (ECF No. 17.) The initial Scheduling Order set certain deadlines for the parties, including a January 23, 2012 deadline to designate experts "who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the Fed. R. Evid." (Id. at ¶ 2.) The deadline for rebuttal expert designations was February 6, 2012. (Id.)

The Scheduling Order further provided that expert witness reports containing information required by Rule 26(a)(2)(A) and (B) were to be provided by May 7, 2012. (Id. at ¶ 3.) "This disclosure requirement applies to all persons retained or specially employed to provide expert testimony, or whose duties as an employee of the party regularly involve the giving of expert testimony." (Id.; see also FED. R. CIV. P. 26(a)(2)(B).) The discovery cut-off was set for June 18, 2012. (ECF No. 17 at ¶ 5.)

The Court's Scheduling Order has been modified multiple times at the joint request of the

parties, including on April 24, 2012 (ECF No. 22) and May 25, 2012 (ECF No. 27). Pursuant to the Court's May 25, 2012 order, the parties' deadline to serve expert reports was extended to July 11, 2012, the deadline to serve supplemental expert reports was extended to July 25, 2012, and the discovery cutoff was extended to August 22, 2012. (Id.)

C. Stay Pending Settlement

On July 6, 2012, the Court held a Mandatory Settlement Conference which resulted in an agreement in principle to settle this matter in its entirety, subject to the required approval of the settlement by the San Diego City Council. (ECF No. 30.) In light of the upcoming expert discovery deadlines, the pending settlement and the parties' plan to seek an order from the district judge to stay the matter pending approval of the settlement, the Court granted the parties' oral request to continue the deadlines to exchange expert reports and supplemental expert reports to allow sufficient time to obtain a ruling on their joint motion to stay. Accordingly, the Court extended the deadlines for expert reports and supplemental expert reports to July 25, 2012 and August 8, 2012, respectively. (Id.)*fn1

On July 19, 2012, Judge Whelan granted the parties' joint motion to stay. (ECF No. 32.) However, the San Diego City Council ultimately did not approve the settlement, and the stay was lifted on October 10, 2012. (ECF Nos. 33-34.)

On October 12, 2012, the Court conducted a telephonic Status Conference. Counsel for the parties both indicated that additional time was needed to complete discovery. Specifically, Defendants' counsel stated that she would be scheduling an IME of Plaintiff. Plaintiff's counsel did not object or indicate that a Rule 35 motion would be required prior to the IME. The parties also indicated that an additional 30 to 40 days would be needed for the exchange of expert reports. The Court encouraged the parties to schedule the IME as soon as possible.

On October 19, 2012, the Court conducted an additional telephonic Status Conference in order to re-set the remaining Scheduling Order dates. At this time, the IME still had not been scheduled. Plaintiff's counsel raised a concern about travel expenses because Plaintiff would have to travel from her home in Arizona to San Diego for purposes of the IME. Again, Plaintiff's counsel did not object to the IME going forward despite the absence of a Rule 35 motion and order from the Court. The Court continued the expert report deadline to November 16, 2012, the supplemental expert report deadline to November 30, 2012, and the discovery cut-off to December 21, 2012. (ECF No. 38 at ΒΆΒΆ 1-3.) However, the Court also noted that the parties ...


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