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Cannon v. Austal USA LLC

United States District Court, S.D. California

April 25, 2017

WILLIAM J. CANNON, Plaintiff,
v.
AUSTAL USA LLC AND UNITED STATES OF AMERICA, Defendants.

          ORDER GRANTING PLAINTIFF'S EX PARTE MOTION TO AMEND SCHEDULING ORDER [ECF No. 62]

          Barbara L. Major United States Magistrate Judge

         Currently before the Court is Plaintiff's April 3, 2017 motion to amend scheduling order [ECF No. 62-1 (“Mot.”)], Third Party Defendant Austal USA, LLC'S April 10, 2017 response [ECF No. 66 (“Response”)], Defendant United States of America's April 11, 2017 opposition to the motion [ECF No. 68 (“Oppo.”)], and Plaintiff's April 18, 2017 Reply [ECF No. 71 (“Reply”)]. For the reasons set forth below, Plaintiff's motion is GRANTED.

         BACKGROUND

         On April 3, 2017, Plaintiff filed an “Ex Parte Motion to Amend Scheduling Order.” ECF No. 62. The Court issued a briefing schedule on April 4, 2017. Id. In accordance with that schedule, the parties timely filed their motion, opposition, response, and reply. See Id.; see also Mot., Oppo., Response, and Reply.

         RELEVANT DISCOVERY BACKGROUND

         On June 20, 2016, Defendant Austal responded to Defendant USA's Interrogatories, Set One which asked Austal to identify all “personnel working with Plaintiff at the time of the alleged incident.” Mot. at 9; see also ECF No. 62-2, Declaration of Thomas M. Discon in Support of Complainant, William J. Cannon's Ex Parte Motion (“Discon Decl.”), at Exh. 5. Defendant Austal responded “[n]one]. According to Plaintiff's complaint he ‘was attempting to pick up and move lifts with three Navy personnel…'” Id.

         On July 29, 2016, Plaintiff propounded Interrogatories on Austal requesting “the names, addresses, telephone numbers, social security numbers, driver's license numbers and position of each and every person known to Defendant, who may have any knowledge of the facts relevant to this lawsuit.” Mot. at 8-9; see also Discon Decl. at Exh. 4. Austal responded on August 31, 2016 with the names of four individuals. Id.

         On August 25, 2016, Plaintiff served Defendant USA with requests for production of documents which sought “[e]very accident report, report of first injury, illness and/or ailment report, and/or root cause analysis report with respect to complainant, which was made by any agent, employee, or representative of any party or insurer or any party designated above or any governmental agency.” Mot. at 15-16; see also Discon Decl. at Exh. 11. Defendant USA objected to the request and stated that it had “no documents responsive to this request.” Id.

         On December 27, 2016, Defendant Austal responded to Defendant USA's Interrogatories, Set Two which asked Austal to identify “all of your personnel who were aboard the U.S.S. CORONADO (LCS-4) at any time on November 25, 2013” and “all of your Safety Officers who were assigned to U.S.S. CORONADO (LCS-4) at any time from August 7, 2013 through and including November 25, 2013.” Mot. at 9; see also Discon Decl. at Exh. 6. Defendant Austal objected to the requests, but listed seventeen names. Id.

         On February 17, 2017, Austal served First Supplemental Initial Disclosures which included twenty-three new fact witnesses. Mot. at 14; see also Discon Decl. at Exh. 9. On February 24, 2017, Austal served Corrected First Supplemental Initial Disclosures that narrowed the twenty-three witnesses down to seven witnesses including Tony Ardito, Susan Brigitha, Dan Goergen, Dave Growden, Thomas “Tommy” Mendiola, Paul Quinn and Steve Williamson. Mot. at 14; see also Discon Decl. at Exh. 10. Fact discovery closed on February 27, 2017. ECF No. 51 at 2.

         After investigating on his own, Plaintiff discovered the identity of Ms. Felicia London, a female safety officer employed by Austal, who took a report of Plaintiff's accident on November 25, 2013.[1] Mot. at 11-12. On March 27, 2017, counsel for Plaintiff contacted Ms. London and got a sworn and notarized statement from her indicating:

(1) that she was aboard the USS Coronado on the date of Complainant, Mr. Cannon's, accident; (2) that she witnessed Mr. Cannon, several Austal employees and Naval personnel surrounding the ramp extension at issue in this case immediately following the accident herein; (3) that Mr. Cannon informed her that he sustained an injury in an accident; (4) that she noted the names of inviduals involved in the accident, including Naval officers; (5) that she informed all witnesses at that time of their obligation to furnish a statement concerning Mr. Cannon's accident; (6) that she attempted to collect said statements from Naval officers in the SUPSHIP Naval building, but did not collect any; (7) that she completed an incident report concerning Mr. Cannon's accident, which she printed and saved on the safety office computer; and (8) that she placed a copy of said incident report in a fellow safety officer, Timothy “Blake” Thomas's, file for review.

Id. at 12; see also Discon Decl. at Exh. 8.

         On March 29, 2017, Plaintiff's counsel met and conferred with counsel for Austal. Mot. at 4; see also Discon Decl. at Exh. 2. Austal did not oppose Plaintiff's request to reopen discovery, but reserved its right to object or oppose further discovery until after Plaintiff served it with formal discovery ...


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