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MacDonald v. Metropolitan Transit System

United States District Court, Ninth Circuit

April 30, 2013

RICK MacDONALD, Plaintiff,
v.
METROPOLITAN TRANSIT SYSTEM, ET AL., Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO EXTEND TIME

BERNARD G. SKOMAL, Magistrate Judge.

Background

Plaintiff filed a complaint alleging a number of claims stemming from an incident that took place on October 15, 2011 at the Old Town Trolley station. (Pl.'s Compl. at 4; Doc. No. 1.) Plaintiff contends that Defendants subjected him to excessive force, assault and battery, false arrest, and violated provisions of the Americans with Disabilities Act. ( See generally Pl.'s Compl.)

The present dispute concerns Plaintiff's request to amend the scheduling order to extend the time to conduct discovery. (Pl.'s Mot. to Amend; Doc. No. 24.) Defendant opposes the request. (Defs.' Opp'n; Doc. No. 37.) Plaintiff filed a late reply brief. (Doc. No. 44.) The reply brief, however, does not address any of the Defendants' arguments, rather it seeks to reiterate counsel's personal issues that have impacted the progress of this case. ( Id. )

The following facts are relevant to the dispute:

Plaintiff filed the complaint on July 19, 2012. (Compl.; Doc. No. 1.) On August 23, 2012 Defendants file a request to extend time by 30 days to file an answer. (Doc. No. 4.) Plaintiff strongly opposed the request, stating that a 30 day extension of time to respond to the complaint would be "prejudicial to the disabled victim, " and states that he "will be prejudiced by what most likely will be an extensive delay as a result of unnecessary litigation." (Pl.'s Opp'n to Defs.' Mot. for Ext. at 5; Doc. No. 5.) Defendants filed their answer six days later, thereby rendering the ex parte request moot. (Doc. Nos. 6, 8.)

This Court set an Early Neutral Evaluation Conference ("ENE") to take place on October 11, 2012. The conference took place as scheduled and the Court issued dates and deadlines for the parties to complete a Rule 26(f) conference, exchange initial disclosures, and submit a joint discovery plan. (Doc. No. 11.) The Case Management Conference was scheduled to take place on November 28, 2012. ( Id. ) After the ENE, Plaintiff's lead counsel, Mary F. Prevost, filed a Notice of Association of Counsel. (Doc. No. 12.) On October 15, 2012, Ms. Adriane Bracciale was officially associated as co-counsel in the matter. ( Id. )

On November 27, 2012, the day before the scheduled Case Management Conference, Plaintiff's counsel filed an ex parte motion seeking a continuance of the conference or cancellation of the conference because she would be traveling out of the state for a family funeral. (Doc. No. 13.) The Court granted the request and also informed the parties that pursuant to the Federal Rules of Civil Procedure, discovery could commence immediately because the parties had conducted their Rule 26(f) conference. The Case Management Conference took place on December 5, 2012 and the Court promptly issued a scheduling order setting all dates and deadlines in the case. (Doc. No. 17.) The order set the deadline for the completion of all fact discovery for March 28, 2013. ( Id. ) Expert identification was set for April 11, 2013 and the deadline to exchange expert witness' written reports was set for May 28, 2013. ( Id. )

This Court first learned that Plaintiff had not conducted any discovery during a telephonic conference that was set because Defendants were having difficulties receiving responses to discovery requests and needed the Court's intervention in order to conduct the required meet and confer conference with Plaintiff's counsel. That conference call took place on March 26, 2013-two days before the fact discovery period was set to end. (Doc. No. 22.) Plaintiff was instructed to file a formal motion requesting that the schedule be modified. Plaintiff attempted to file the Motion to Continue Discovery and Amend the Scheduling Order on March 27 and 28, however, the motion was stricken for failing to comply with certain policies and procedures. ( See Doc. Nos. 24, 26.) For the purposes of considering the request, the Court deems the request as filed before the discovery deadline passed. Thus, the inquiry is whether there is good cause to amend the schedule.

Relevant Legal Standards

Federal Rule of Civil Procedure 16 governs scheduling and overall case management. Fed.R.Civ.P. 16. The Rule specifically provides that "a schedule may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). "Rule 16(b)'s good cause' standard primarily considers the diligence of the party seeking the amendment. 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) (citing Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment)). The focus of the inquiry is on the moving party's reasons for seeking modification, "if that party was not diligent, the inquiry should end." Id.

Analysis

Plaintiff's lead counsel, Mary F. Prevost, admits that she has not engaged in discovery in this case. (Pl.'s Mot. at 6; Doc. No. 24-1, Prevost Decl. at § 9.) The reason no discovery has been conducted is because Ms. Prevost had to spend at least 23 days in Baltimore to care for her now deceased father and to attend family funerals. ( Id. ) She also states that she has chosen to prioritize other cases rather than conduct discovery in this action. ( Id. ) In addition, Ms. Prevost is medically not well and her ailment has hindered her ability to prosecute this action. ( Id at 7.) To substantiate her medical issues, Plaintiff filed a letter from a treating physician under seal. ( Id. )

In her motion and declaration, Ms. Prevost mentions that she sent out one subpoena for records from the paramedic company that was at the scene of the incident in this matter. (Prevost Decl. at § 9.) Defendants, however, were never served with a copy of the subpoena, thus it is not clear that the subpoena was in fact issued. (Defs.' Opp'n at 5; Doc. No. 37, Sherman Decl. at § 5.) Ms. Prevost also does not specify when the subpoena was prepared and served. The other discovery that Plaintiff's counsel states is "ready" includes subpoenas to the California Division of Occupational Health and Safety Administration, Emergency Medical Services for records not sought in the initial subpoena, San Diego Animal Service Department, National Railroad Passenger Association. (Prevost Decl. at § 9.) Counsel also intends to draft a subpoena to the San Diego Police Department, as well as Requests for Production of Documents and Interrogatories. ( Id. ) In her reply brief and declaration, counsel does not mention whether this discovery has been served or if the Requests for Production and Interrogatories are now drafted. ...


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