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Erick Efrain Aleman v. City of Bakersfield


May 9, 2013


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


I. Background

Plaintiff alleges that on December 18, 2009, he was being followed by police officers while he was driving in an area of Bakersfield, California. (Doc. 1 at 4) He claims that when he arrived at his destination-a private residence-he entered and was followed by Defendant-police officers, Ronk and Berchtold, who beat him and arrested him. Id. Upon this factual scenario, he alleges claims of excessive force, unlawful arrest, unlawful racial profiling, malicious prosecution and conspiracy. (Doc. 1 at 8-23)

On April 9, 2012, the Court issued its scheduling order which was modified at the request of the parties on October 9, 2012. (Docs. 12, 17) In the amendment, the Court ordered experts to be disclosed no later than April 12, 2012 and rebuttal experts to be disclosed no later than April 26, 2012.

(Doc. 17 at 3) However, this was about two weeks less than the extension sought by counsel. (Doc. 2 17 at 2, 3) 3

On April 22, 2013, Plaintiff filed the instant motion seeking an extension of time within which 4 to disclose his experts. (Doc. 21) Plaintiff's counsel, Mr. Thompson, explained that, due to his very 5 heavy trial schedule, he was unable to devote much attention to this case from early March to mid-6 April. Id. at 3. Further complicating the situation, Mr. Thompson failed to appreciate the Court's 7 order amending the scheduling order in October 2012, did not afford the parties the full amount of 8 time they sought in their stipulation, to make their expert disclosures. Id. Thus, on April 19, 2013, as 9 soon as he realized his error, Mr. Thompson contacted Defendant's counsel, Mr. Marderosian, and sought an extension of time. Id. at 4. Mr. Marderosian agreed to allow the disclosure to be late but not later than April 23, 2013. Id. Because this was still not enough time for Mr. Thompson to make the disclosure, he filed the instant motion. Id. In the motion, counsel sought an extension of time until June 7, 2013 to make the disclosure. Id. However, in his recently-filed reply, Mr. Thompson reports the expert disclosure was served by overnight mail on May 6, 2013. (Doc. 24 at 2)

Because Plaintiff indicated in his motion the Defendants would not stipulate to the modification, the Court ordered briefing. (Doc. 22) On May 3, 2012, Defendants opposed the motion. (Doc. 23) In their opposition, Defendants note the Court refused to extend the deadlines for expert disclosure to the full amount of time sought in their October 2012 stipulation. Indeed, though granting the extension of time, it reduced the extension from about ten weeks, to about eight. (Doc. 17 at 2, 3) Defendants argue also that Mr. Thompson's failure to obtain an expert during the interval after the Court amended the scheduling order, does not demonstrate the diligence needed to support a request to amend it now. (Doc. 23 at 5)

In addition, Defendants argue the Court should preclude Plaintiff from offering expert testimony at trial but argue, alternatively, if the Court allows the late disclosure, all remaining case schedule dates should be extended. (Doc. 23 at 5) Exactly why this should occur is not explained. Defendants note that their motion for summary judgment is due on March 13, 2013 and assert this late disclosure impacts the motion (Id.), although, again, how the late disclosure impacts the motion is not explained. 2

II. Legal Authority 3

Rule 26(a)(2) provides that a party must disclose the identity of any expert witness he intends 4 to use at trial. Fed. R. Civ. P. 26(a)(2)(A). These disclosures must be made at the times and in the 5 sequence that the court orders. Fed. R. Civ. P. 26(a)(2)(C). In this case, the Court issued a scheduling 6 order which set forth the dates by which certain case activity-including expert disclosure-would 7 occur. (Doc. 8

Scheduling orders "are at the heart of case management," Koplve v. Ford Motor Co., 795 F.2d 15, 18 (3rd Cir. 1986), and are intended to alleviate case management problems. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). As such, a scheduling order "is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded without peril." Id. at 610. Furthermore, the Ninth Circuit states, "Rule 16 . . . recognizes the inherent power of the district court to enforce its pretrial orders through sanctions." Goddard v. United States Dist. Court, 528 F.3d 652, 657 (9th Cir. 2008). Consequently, a party's failure to comply with a scheduling order "exposes [the] party to 'any just orders,' as determined by the district judge, including dismissal, entry of default or contempt of court." Id., citing Fed. R. Civ. P. 16(f), 37(b)(2).

Despite Mr. Thompson's position that the expert disclosure made recently is consistent with the Federal Rules of Civil Procedure-being more than 90 days before trial-he ignores that this time frame applies only if the Court does not set a deadline. Here, the Court's scheduling order required the parties to make their disclosures as set forth therein and the Court admonished the parties that their failure to comply with the scheduling order "may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order." (Doc. 12 at 2)

This admonition was consistent with Fed. R. Civ. P. 37(c)(1) which provides, "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Rule 37(c)(1) "gives teeth" to the disclosure requirements. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

The sanction is "self executing . . . and automatic to provide a strong inducement for disclosure of 2 material . . . ." Id. at 1106 (citations and internal quotation marks omitted). 3

Here, undoubtedly, Plaintiff has failed to comply with the scheduling order. He served his 4 expert disclosure 24 days after the deadline. As explanation, his counsel explains that due to his heavy 5 trial schedule-including three felony trials-he simply was unable to devote the necessary time to 6 discovery efforts. The Court is aware that criminal matters oftentimes do not proceed to trial or do not 7 proceed to trial as originally scheduled. Often, this leads to the multiple trials being scheduled back-8 to-back based upon the usually correct assumption that not all of the trials will go forward. However, 9 on occasion the "perfect storm" hits and cases do not settle or are not continued and counsel is forced to try more cases in a limited time than was ever anticipated. Despite the Court's significant sympathy for this circumstance, the failure to begin seeking an expert until less than 60 days before the disclosure date carries with it the great likelihood that the disclosure cannot occur on time. Notably, Mr. Thompson fails to explain why he had not sought out his expert earlier in the litigation such that his trial schedule would not preclude a timely expert disclosure.*fn1 Thus, the Court does not find Plaintiff's failure to disclose his expert in a timely fashion to be substantially justified.

However, though Defendants claim the late disclosure is "highly prejudicial" (Doc. 23 at 5), they provide no facts upon which the Court can rely to come to this same conclusion. The Court recognizes and appreciates the diligence of Defendants in completing their discovery in a timely fashion. However, absent some reason to believe the disclosure impacts the content of the summary judgment motion, their preparation for trial or otherwise, the Court has no basis upon which to conclude Plaintiff's failure to disclose his expert timely is anything but harmless.*fn2


Based upon the foregoing, the Court finds Plaintiff's failure to disclose his expert in a timely 3 manner was not substantially justified. However, the Court concludes Plaintiff's failure is harmless. 4

Given this, the Court ORDERS: 5

1. The motion to amend the scheduling order to extend time to make expert disclosures is DENIED as MOOT; 7

2. Defendants SHALL make their rebuttal expert disclosure, if any, no later than May 22, 2013. If a rebuttal expert is disclosed and Plaintiff wishes to take this expert's deposition, he may do 9 so no later than 21 days from the date the rebuttal expert disclosure is served;

3. Defendants SHALL complete their expert discovery no later than June 5, 2013. Plaintiff SHALL NOT have any additional time to take the deposition of Defendants' expert, if this has not yet occurred;

4. No other modifications to the scheduling order are authorized.


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