United States District Court, E.D. California
BRIAN REED, B.R., a minor, by her guardian ad litem, Roxanne Sayer, Plaintiffs,
CITY OF MODESTO, a municipal corporation, Chief of Police HARDEN, in his individual capacity; Police Officer RON ZIYA, Police Officer CAELI KOEHLER, in their individual and official capacities, Defendants
For Brian Reed, Plaintiff: Steven Robert Yourke, LEAD ATTORNEY, John L. Burris, Law Offices of John L Burris, Oakland, CA.
ORDER DENYING DEFENDANTS' MOTION TO MODIFY THE SCHEDULING ORDER
Gary S. Austin, UNITED STATES MAGISTRATE JUDGE.
On October 16, 2014, Defendants City of Modesto, Chief of Police Michael Harden, and Officers Ron Ziya and Caelli Koehler (collectively, " Defendants") filed a motion to modify the scheduling order. Doc. 65. Plaintiffs Brian Reed and B.R. (collectively, " Plaintiffs") filed an opposition and Defendants filed a reply. Docs. 78, 94. The matter was heard on November 17, 2014. Steven Yourke appeared on behalf of Plaintiffs and Nathan Oyster on behalf of Defendants.
Having considered the pleadings as well as the arguments presented at the hearing, the Court finds that Defendants have not demonstrated good cause to support a modification of the scheduling order. Accordingly, Defendants' motion to modify the scheduling order is DENIED.
A. The Parties' Positions
In the instant motion to modify the scheduling order, Defendants seek to (1) re-open fact discovery to allow Defendants to conduct additional written discovery regarding Plaintiff's ongoing medical treatment, a deposition of Plaintiff Brian Reed (" Plaintiff"), and an Independent Medical Examination of Plaintiff by a neurologist; (2) re-open expert discovery to allow Defendants to designate additional medical experts and Plaintiffs to designate rebuttal experts, and to allow for depositions of the nine experts previously designated by the parties as well as of any new experts the parties are permitted to designate pursuant to the instant motion; (3) extend the dispositive motion filing deadline to allow Defendants to file a comprehensive dispositive motion; and (4) continue the trial date to May 19, 2015. Doc. 65, Defendants' Mtn. to Modify Sched. Order.
Plaintiffs filed an opposition to Defendants' motion in which they strongly oppose any modification of the scheduling order. Plaintiffs argue (1) that Defendants have failed to show that they diligently attempted to comply with the scheduling order; and (2) that Defendants have, in turn, not made the " good cause" showing required to modify a scheduling order. Plaintiffs sum up their position as follows:
This Court modified the Scheduling Order and continued the trial date back on March 15, 2013 in order to permit the parties extra time to evaluate Plaintiff's injuries, to disclose medical experts relevant to those injuries and to conduct expert discovery relevant to his medical condition. But Defendants never did conduct any additional discovery into Plaintiff's medical condition. They never bothered to conduct an IME of Plaintiff. They never disclosed any medical experts to testify at trial or any rebuttal experts to testify against Plaintiffs' disclosed experts. Now, having completely neglected to prepare the damages aspect of the case for trial, Defendants have the unmitigated gall to once again demand that this Court modify the scheduling order and continue the trial date so that they may do the discovery they should have done nearly two years ago.
Doc. 78, Plaintiffs' Opp. Br., at 10.
In their reply brief, Defendants argue that even if " Defendants' original counsel had conducted an independent medical examination and deposed Plaintiff's expert witnesses, good cause would still exist to conduct additional discovery because of the substantial time gap between the fact and expert discovery cutoffs and the current trial date." Doc. 94, Defendants' Reply Br., at 4.
At the hearing on the motion to modify the scheduling order, the parties met and conferred in person, outside the presence of the Court. The parties agreed that, regardless of the disposition of the instant motion, Plaintiffs' counsel would turn over all of Plaintiff Brian Reed's medical records that were in his possession, furnish Defendants' counsel with a medical release signed by Plaintiff Brian Reed that would enable Defendants' counsel to directly obtain records from Plaintiff's medical providers, and produce Plaintiffs' experts for deposition by Defendant. ...