United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
This matter is before the court on defendant's motion for modification of the pretrial scheduling order and to require a second medical examination of plaintiff Jess Anzo. The motion is decided without a hearing and for the following reasons is DENIED.
This court first issued a scheduling order on August 20, 2013. ECF No. 18. That order set a trial date of December 8, 2014 and a pre-trial conference date of October 30, 2014. The order also included deadlines for expert disclosures, completion of discovery, and hearing of dispositive motions. Id. On July 1, 2014, this court granted in part a motion by defendant to modify the scheduling order. ECF No. 37. The July 1, 2014 order set the following deadlines: expert witnesses to be designated by August 4, 2014; any supplemental list of experts disclosed by August 15, 2014; all discovery completed by August 30, 2014; and dispositive motions to be heard by September 12, 2014. Id. Pretrial conference remains set for October 30, 2014 and trial for December 8, 2014.
The present motion was filed on August 28, 2014. Def.'s Mot. ECF No. 45. Plaintiff filed his opposition on September 8, 2014. Opp'n ECF No. 47. Defendant filed a reply on September 19, 2014.
II. MOTION TO MODIFY
Federal Rule of Civil Procedure 16(b)(4) states, "[a] schedule may be modified only for good cause and with the judge's consent." "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) (quoting FED. R. CIV. P. 16 advisory committee's notes (1983 amendment)). "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. [citation omitted] If the party was not diligent, the inquiry should end." Id.
Defendant requests the court modify the scheduling order to allow an additional approximately 30 days for defendant's experts to review transcripts from depositions of plaintiff's experts and use that information as a basis for a rebuttal and/or supplemental report. Def.'s Mot. at 2-3. Defendant also contends plaintiff has unnecessarily delayed discovery by failing to correspond and by posing obstacles to scheduling depositions with plaintiff's medical providers. Def.'s Mot. at 2-3, 6. Plaintiff responds defendant has canceled and rescheduled existing depositions with plaintiff's treating physicians as a pretext for modifying the scheduling order and moving the trial date. Opp'n at 7-8. Plaintiff also alleges in his opposition "all of Mr. Anzo's treating physicians have been deposed" and "the depositions of each of plaintiff's retained expert witnesses are all scheduled." Id.
As noted, a party seeking modification of the scheduling order must demonstrate due diligence in its attempt to meet the deadline. In fact, when a party seeks to modify the court's scheduling order, the court must first examine that party's diligence, and "[i]f the party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609. Despite defendant's assertions plaintiff has obstructed discovery and depositions, the court must look to the movant's diligence in deciding the motion; through diligence defendant would have properly challenged any perceived obstruction through meet and confer and motion practice. Here, defendant has had over a year of discovery time to depose and collect transcripts for their experts to review. With the exception of Dr. Kauder, discussed below, defendants have not even asserted denial of an opportunity to review materials or depose an individual material to their defense. The court has already once modified the scheduling order to allow an additional 60 days for discovery. ECF No. 37. Defendant has subpoenaed all of the remaining parties it wishes to depose, and has offered no evidence plaintiff has obstructed responses to those subpoenas; plaintiff offers uncontradicted evidence that defendant itself has rescheduled or canceled depositions. See Pl.'s Ex. 3-5 ECF No. 47-1.
The court does not find good cause to modify the scheduling order. Defendant has had sufficient time to review transcripts and schedule depositions. Rule 16(b)'s good cause standard has not been met, and defendant's motion for modification will be denied.
III. MOTION TO ORDER MEDICAL ...