United States District Court, E.D. California
DUANE BEECHAM, KIMBERLY BEECHAM, S.Y.B., a minor by and through her co-guardians ad litem DUANE BEECHAM and KIMBERLY BEECHAM, OLIVER VERGARA, JENNIFER VERGARA, E.V., a minor by and through his co-guardians ad litem OLIVER VERGARA and JENNIFER VERGARA, Plaintiffs,
ROSEVILLE CITY SCHOOL DISTRICT, THERESA VAN WAGNER, GEORGE ROOKS, JERROLD JORGENSEN, and DOES 1-30, Defendants.
Theresa Van Wagner moves to modify the scheduling order to
permit additional discovery. Mot., ECF No. 76. Plaintiffs
oppose. Opp'n, ECF No. 87. Van Wagner filed a reply.
Reply, ECF No. 89. The court submitted the matter without
oral argument. ECF No. 92. For the reasons discussed below,
the court DENIES Van Wagner's motion.
filed this lawsuit on May 12, 2015, Compl., ECF No. 1, and a
first amended complaint in November 2015, First. Am. Compl.
(“FAC”), ECF No. 30. The court's pretrial
scheduling order set January 23, 2017 as the discovery
deadline. Scheduling Order, ECF No. 27.
December 2016, Van Wagner issued twenty-two pretrial
subpoenas for the employment and medical records of
plaintiffs Jennifer and Oliver Vergara. Young Decl. ¶ 8,
ECF No. 87-1. On January 20, 2017, Van Wagner served
plaintiffs with four sets of written discovery requests.
Id. ¶ 12.
April 2017, the court denied defendants' joint
motion to extend the discovery deadline. Order,
ECF No. 82. On April 10, 2017, Van Wagner filed her current
motion to extend the discovery deadline. Mot.
AMENDING THE SCHEDULING ORDER
pretrial scheduling order is designed to allow the district
court to better manage its calendar and to facilitate the
more efficient disposition of cases by settlement or by
trial. See Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607-08 (9th Cir. 1992). A scheduling order may only
be changed with the court's consent and for “good
cause.” Fed.R.Civ.P. 16(b)(4). A scheduling order is
not “a frivolous piece of paper, idly entered, which
can be cavalierly disregarded by counsel without
peril.” Johnson, 975 F.2d at 610 (quoting
Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138,
141 (D. Me. 1985)). On the other hand, the “good
cause” standard requires less than the “manifest
injustice” test used to modify a final pretrial order.
See Fed. R. Civ. P. 16(e); see also Fed. R.
Civ. P. 16, 1983 Advisory Committee Notes (“Since the
scheduling order is entered early in the litigation, this
standard seems more appropriate than a ‘manifest
injustice' or ‘substantial hardship'
test.”). When litigants request changes to a scheduling
order, the court's inquiry focuses primarily on the
diligence of the moving party, Johnson, 975 F.2d at
609, and that party's reasons for seeking modification,
C.F. ex rel. Farnan v. Capistrano Unified Sch.
Dist., 654 F.3d 975, 984 (9th Cir. 2011). A district
court has “broad discretion” to grant or deny a
continuance. United States v. Flynt, 756 F.2d 1352,
1358 (9th Cir. 1985).
Wagner moves to extend the discovery cut-off to obtain (1)
plaintiffs' response to recent written discovery
requests; (2) Jennifer and Oliver Vergara's therapy
records; and (3) Jennifer Vergara's employment records.
Mot. at 1.
Wagner first requests more time to obtain plaintiffs'
responses to written discovery requests she propounded on
January 20, 2017, three days before the discovery cut-off by
which all discovery motions were to have been heard. Mot. at
3. She asserts the written discovery was based on a
deposition taken on January 14, 2017. Id. In its
prior order denying defendants' joint motion to extend
the discovery cut-off, the court rejected defendants'
arguments that relied on information learned in the January
14, 2017 deposition. Order at 3:19-5:5. As the court
explained, defendants did not explain why they could not have
learned the relevant information much sooner. Id.
Similarly here, Van Wagner has omitted any explanation of why
she had to wait until three days before the discovery cut-off
to propound written discovery requests. See Mot. at
3. Van Wagner has not established good cause to support her
Wagner's remaining requests fare no better. Van Wagner
requests more time to obtain the Vergaras' medical
records and Jennifer Vergara's employment records.
Id. at 4. As Van Wagner explains, she issued
subpoenas on December 16, 2016, and no records were returned
because Van Wagner did not have the correct information for
plaintiffs. Id. Exs. E-G, I; Reply at 2-3. But Van
Wagner provides no explanation for why she could not have
obtained the correct information, including the Vergaras'
therapist's location or Jennifer Vergara's full or
maiden name, much earlier during discovery. As with
defendants' prior motion to extend the discovery period,
Van Wagner does not explain why she did not propound written
discovery requests to gather this information much sooner.
See Order at 3-5 (citing Chopourian v. Catholic
Healthcare W., 2011 WL 3816969, at *4 (E.D. Cal. Aug.
29, 2011), in which this court observed that “counsel
has not suggested he was unable to develop the claim through
interrogatories and requests for admission or production;
that he may have preferred to conduct depositions is not
sufficient”). Van Wagner has not shown she was diligent
in complying with the court's scheduling order. Without
her diligence, “the inquiry should end.”
Johnson, 975 F.2d at 609.
these reasons, Van Wagner has not shown good cause exists to
support her second or third request.
CONCLUSION The court DENIES Van ...