United States District Court, S.D. California
JESSIE W. JONES, Plaintiff,
F. GARDINER, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART JOINT
MOTION TO AMEND PRETRIAL SCHEDULING ORDER [ECF NO.
Mitchell D. Dembin United States Magistrate Judge
W. Jones (“Plaintiff), a state prisoner proceeding
through counsel, and F. Gardish Gardiner
(“Defendant”) jointly filed a motion to amend the
pretrial scheduling order. (ECF No. 42). Plaintiff requests
the Court reopen discovery for the limited purpose of
Plaintiff taking the depositions of Defendant and fact
witness, Lt. Coyne. (Id. at 2). Defendant opposes
Plaintiffs request and instead moves the Court to mutually
reopen expert discovery. (Id. at 7).
April 8, 2015, this Court issued a scheduling order
regulating discovery and other pre-trial proceedings. (ECF
No. 8). Pursuant to the scheduling order, initial expert
disclosures were due on August 7, 2015, and rebuttal
disclosures were due on September 11, 2015. (Id. at
1). Discovery closed on October 9, 2015. (Id. at 2).
Neither party disclosed experts, but Defendant did take
Plaintiffs deposition. (ECF No. 42 at 4; see ECF No.
November 13, 2015, Defendant filed a motion for summary
judgment. (ECF No. 14). On April 14, 2016 District Judge
Anello denied Defendant's motion for summary judgment.
(ECF No. 27). Counsel were appointed to represent Plaintiff
in November of 2016, more than a year after discovery closed.
(ECF No. 34). On February 21, 2017, District Judge Anello
issued a pretrial scheduling order, which set May 5, 2017 as
the deadline for “[a]ny remaining discovery matters,
including requests to re-open discovery.” (ECF No. 40
scheduling order “may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). The “good cause” standard
“primarily considers the diligence of the party seeking
the amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). Courts have
permitted the reopening of discovery where a state prisoner
proceeding pro se moved to reopen discovery
following the appointment of counsel after the discovery
cutoff date. See, e.g., Draper v. Rosario, No.
S-10-0032 KJM EFB, 2013 WL 6198945, at *2-3 (E.D. Cal. Nov.
27, 2013); Woodard v. City of Menlo Park, No. C
09-3331 SBA, 2012 WL 2119278, at *1-2 (N.D. Cal. June 11,
2012); Henderson v. Peterson, No. C 07-2838 SBA PR,
2011 WL 441206, at *1-2 (N.D. Cal. Feb. 3, 2011).
argues he has good cause to re-open discovery for the limited
purpose of taking two depositions because he “was
unable to depose Defendant and Lt. Coyne before discovery
closed, due to his pro se and inmate status.” (ECF No.
42 at 3). Defendant contends that “Plaintiff had ample
opportunity to conduct depositions by written questions
pursuant to FRCP 31 . . . . [and] could have propounded
interrogatories to Defendant.” (Id. at 6).
Defendant further opposes Plaintiffs request on the grounds
that both Defendant and Lt. Coyne “provided
declarations in support of Defendant's motion for summary
judgment . . . . [and Plaintiff] had an opportunity to
request further discovery before he filed his opposition to
the motion. . . .” (Id.). Defendant asserts
that he “will be prejudiced if Plaintiff alone
is provided additional time to conduct discovery” and
argues that the Court should permit a “mutual reopening
of discovery to allow Defendant to identify expert
witnesses” to assist the jury on causation and damages
issues. (Id. at 7). Plaintiff notes that
Defendant's counsel's deliberate choice not to engage
in expert discovery does not justify reopening discovery.
(Id. at 5).
Court finds good cause to permit Plaintiff to conduct
depositions of Defendant and Lt. Coyne. This additional fact
discovery will assist in resolving the matter on the merits
and will not prejudice Defendant. The Court does not find
Defendant diligently pursued expert discovery. As previously
indicated, initial expert disclosures were due August 7, 2015
and rebuttals were due September 11, 2015. Neither Plaintiff
nor Defendant disclosed experts by that deadline.
Defendant's failure to pursue expert discovery as a
litigation strategy does not constitute good cause to reopen
the Court GRANTS IN PART AND DENIES IN PART the parties'
joint motion to amend the pretrial scheduling order as
1. Plaintiffs request to reopen discovery for the limited
purpose of conducting two depositions is GRANTED. IT IS
HEREBY ORDERED that the discovery deadline is extended to
June 19, 2017 for the limited purpose of ...