United States District Court, S.D. California
ORDER DENYING DEFENDANT'S EX PARTE APPLICATION TO MODIFY SCHEDULING ORDER (Dkt. No. 12)
NITA L. STORMES, Magistrate Judge.
Before the Court is Defendant Albertson's, LLC's ("Defendant") Ex Parte Application to Modify the Scheduling Order. (Dkt. No. 12.) Defendant seeks to extend the deadline for rebuttal expert designations and the deadline for the close of expert discovery. Plaintiff Scott Friedman ("Plaintiff") opposes the application. (Dkt. No. 13.) For the reasons explained below, the Court DENIES Defendant's request to modify the Scheduling Order.
I. RELEVANT BACKGROUND
On August 8, 2014, the Court entered a Scheduling Order regulating discovery and other pretrial proceedings. (Dkt. No. 10.) In that Order, the Court set deadlines for, inter alia, the time to designate experts (March 13, 2015), the time to exchange rebuttal expert designations (March 27, 2015), and the time to complete expert discovery (June 12, 2015). (Id., ¶¶ 3, 6.) The Court's Scheduling Order directed the parties to review the chambers' rules for the assigned judges to the matter. (Id., ¶ 15.) The Court also instructed that the dates and times set forth in the Order would not be modified except for good cause shown. (Id., ¶ 17.)
a. The Initial and Rebuttal Expert Designation Deadlines
In March of 2015, the parties stipulated to continue the initial designation and rebuttal designation dates. In April of 2015, the parties then stipulated again, via email, to continue those dates. The parties stipulated to extend the initial expert designation date to April 20, 2015 and the rebuttal designation date to May 4, 2015.
The parties made their initial expert designations by their agreed upon continued deadline. Neither party made rebuttal expert designations. At some point after the deadline expired, defense counsel realized that Defendant may need to retain a rebuttal expert. Defense counsel attests he did not properly calendar the rebuttal expert deadline because it was agreed to via email. (Dkt. No. 12-1 at ¶ 6.) More than two weeks after the parties' stipulated rebuttal designation deadline expired, counsel for Defendant made several requests to Plaintiff to stipulate to allow him to designate a rebuttal expert, which Plaintiff declined. (Id., Exh. C.)
b. The Close of Expert Discovery Deadline
On or about June 2, 2015, counsel for Defendant asked Plaintiff's counsel to stipulate to extend the Court-imposed deadline to complete expert discovery due to the parties' agreement to extend the designation and rebuttal deadlines. (Dkt. No. 12-1 at ¶ 7, Exh. D.) Plaintiff declined. The next day, counsel for Defendant noticed the depositions for two of Plaintiff's experts for June 12, 2015, which was the last date to complete expert discovery. (Id. at ¶ 7.) Plaintiff informed Defendant that the notices were not timely and did not provide sufficient notice, such that the experts would not appear for their depositions. The depositions did not go forward.
Nearly a month later, on July 8, 2015 and on July 10, 2015, counsel for Defendant again asked to depose Plaintiff's experts, to which Plaintiff refused. (Dkt. No. 12-1 at ¶ 8; Dkt. No. 13 at 2-3.) Defendant thereafter filed this ex parte application on July 22, 2015.
The Court begins its discussion with an excerpt from the Ninth Circuit's opinion in Wong v. Regents of the University of California, 410 F.3d 1052, 1060, 1062 (9th Cir. 2005), about the policy supporting enforcement of court scheduling orders:
In these days of heavy caseloads, trial courts... routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusion of evidence...
Disruption to the schedule of the court and other parties is not harmless. Courts set such schedules to permit the court and the parties to deal with cases in a thorough and orderly manner, and they must be allowed ...