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Tri-Dam v. Richard Schediwy and Laura Strauss

April 30, 2013

TRI-DAM,
PLAINTIFF,
v.
RICHARD SCHEDIWY AND LAURA STRAUSS, DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING AS MOOT DEFENDANTS' MOTION FOR RELIEF FROM SCHEDULING ORDER (Doc. 46)

Defendants file this motion for relief for "excusable neglect" under Federal Rule of Civil Procedure 60(b)(1) for disclosing their expert witness five days after the deadline. Plaintiff opposes and asks for exclusion or other sanctions pursuant to Rule 37(c). Because the Court finds that the original scheduling order was untenable, the Court denies Defendants' motion as moot, does not order sanctions, and orders the parties to meet and confer over new dates, as detailed below.

FACTS

Defendants' expert is Neil Anderson, a geotechnical engineer. On February 12, 2013, he inspected Defendants' property. On February 14, he told Kathleen Clack, counsel for Defendants, that he could not finish his report by the next day, the expert disclosure deadline. Ms. Clack took his call but was too sick to call Plaintiff. Five days after the February 15 deadline, Ms. Clack mailed the report to Thomas Marrs, counsel for Plaintiff. Mr. Marrs had not retained an expert witness, and Ms. Clack's February 21 voicemail was his first indication that she intended to do so. He now had fifteen days to retain a rebuttal witness. He told Ms. Clack he would move to strike Mr. Anderson. Thirteen days later, with no motion to strike forthcoming, Ms. Clack filed this motion. 2

Ms. Clack has missed deadlines in this litigation twice before. After the District Court denied 3 her motion to dismiss the First Amended Complaint, she had 14 days from December 21, 2011 to 4 file an answer. On January 27, 2012, Plaintiff reminded her to answer. Ms. Clack responded that the 5 delay was because a law clerk had family medical issues. She then missed the March 30, 2012 6 deadline for initial disclosures. On July 10, 2012, Mr. Marrs warned that he would seek default if she 7 did not file an answer within two days. She did so in three. Mr. Marr also demanded that she file her 8 late initial disclosures. She promised to have these done by July 27, 2012. That day, Mr. Marrs 9 demanded that she file them within four days or he would seek sanctions. Ms. Clack complied.

RELIEF UNDER RULE 60(b)(1)

Ms. Clack attributes her delay to "excusable neglect" under Fed. R. Civ. P. 60(b)(1):*fn1 because she was sick, she could not ask Mr. Marrs to stipulate to extend the deadline. However, Rule 60(b)(1) does not forgive deadlines. It forgives orders, and only where relief is requested within a year of the order. See Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 1989). Here, the scheduling order was issued on February 29, 2012, more than a year prior to Defendants' request.

Moreover, Ms. Clack's illness, excusable or not, is not the reason she missed the deadline. Even if she could have called Mr. Marrs on February 14, he was under no obligation to be as indulgent with deadlines as he had been in the past. This apparently does not go without saying. In her reply, Ms. Clack suggests that because Mr. Marrs never objected to her prior missed deadlines, he must not have been "so concerned," then argues that now that he has finally objected, she should be awarded attorney's fees. The Court reiterates: Deadlines are serious. There must be no more delayed responses or missed deadlines in this case.

SANCTIONS UNDER RULE 37(a)

A party must disclose expert witnesses "at the times and in the sequence that the court orders." Fed. R. Civ. P. 26(a)(2)(D). Failure to do so may lead to sanctions unless the party shows its failure was either substantially justified or harmless. Fed. R. Civ. P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). Although the sanction of exclusion of 2 the evidence has been called "automatic," "self-executing," and "mandatory," as a practical matter a 3 variety of sanctions are available at the Court's discretion. See Charles Alan Wright, Arthur R. 4

Miller, Richard L. Marcus, Federal Practice and Procedure, 8B Fed. Prac. & Proc. Civ. § 2289.1 5

(3d ed.). Courts have "particularly wide latitude" in their discretion to sanction under Rule 37(c)(1). 6

R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1245 ...


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