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Plum Healthcare Group, LLC v. One Beacon Professional Insurance

United States District Court, S.D. California

April 24, 2017

PLUM HEALTHCARE GROUP, LLC, et al., Plaintiffs,
v.
ONE BEACON PROFESSIONAL INSURANCE, et al., Defendants.

          ORDER DENYING DEFENDANTS' APPLICATION TO MODIFY THE CURRENT SCHEDULING ORDER [ECF NO. 39]

          Hon. Mitchell D. Dembin United States Magistrate Judge.

         Before this Court is Defendants' Ex Parte Application to Modify the Current Scheduling Order. (ECF No. 39). The Scheduling Order set August 29, 2016, as the deadline for motions to amend the pleadings, November 28, 2016, as the initial expert disclosure deadline, and February 6, 2017, as the deadline for completion of all discovery. (ECF No. 17). On November 29, 2016, the Court issued an Amended Scheduling Order at the parties' joint request. (ECF Nos. 23 (joint motion), 24 (Amended Scheduling Order)). The Amended Scheduling Order set January 9, 2017, as the deadline for initial expert disclosures and March 7, 2017, as the deadline for completion of all discovery. (ECF No. 24).

         Defendants' motion, filed March 2, 2017, seeks to reopen discovery and motion practice for three months to relieve Defendants of their prior attorneys' “gross negligence” in failing to timely designate an expert and conduct certain fact discovery. Though Defendants' initial filing also sought a three month extension of all pretrial dates, including the June 5, 2017, Final Pretrial Conference before District Judge Whelan, Defendants abandoned the request to move pretrial dates in their reply. Defendants' reply added a new request for permission to file a motion to amend their Answer.

         Plaintiffs filed their opposition on March 17, 2017. (ECF No. 44). Defendants filed their reply on March 24, 2017. (ECF No. 46). As provided herein, Defendants' motion is DENIED.

         DISCUSSION

         A. Parties' Contentions

         Defendants argue that good cause exists to push back the dates in the Amended Scheduling Order because their prior attorneys at Selman Breitman LLP (Selman) were “so grossly negligent in their failure to take the necessary steps in this litigation that Defendants were essentially abandoned and left without representation.” (ECF No. 39-1 at 4:2-4). Defendants specify that Selman:

1) “led Defendants to believe that [Selman] would file a motion to dismiss Plaintiff's claims, but never did;”
2) did not inform Defendants that Plaintiffs filed a motion for summary adjudication;
3) missed the expert disclosure deadlines;
4) misled Defendants that the expert disclosure deadlines had been extended when they had not; and,
5) misled Defendants that the time to take percipient and expert witness depositions had been extended when it had not.

         Defendants contend that they were diligent in filing this motion to modify the Scheduling Order because they did not learn of any of the issues listed above until February 28, 2017-one week before the discovery and pretrial motion cutoff date. Defendants assert that they then promptly hired new attorneys and filed this motion. Defendants assert, without any analysis, that Plaintiff will not be prejudiced by a three month extension. Finally, in their reply, Defendants seek leave to amend their Answer to specify additional policy exclusions in a non-exhaustive list of policy exclusions that is part of an existing affirmative defense, though they claim that this amendment is not necessary to assert these exclusions as defenses.

         Plaintiffs argue that Defendants fail to show good cause for modifying the Scheduling Order because the discovery sought was not diligently pursued. Plaintiffs further argue that Defendants should not be relieved of Selman's lack of diligence because the claimed misconduct does not amount to gross negligence. Plaintiffs contend that they will be severely prejudiced if the Scheduling Order is modified, because any delay causes them to incur further damages flowing from Defendants' refusal to defend them in the underlying lawsuit, and they will be forced to expend additional time ...


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