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Thomas v. United States

United States District Court, S.D. California

January 14, 2020

BRANDON LEE THOMAS, individually, and as successor in interest to Decedent Michael Thomas, Plaintiff,


          Honorable Linda Lopez United States Magistrate Judge

         Currently before the Court is Plaintiff's Motion to Continue Scheduling Order [ECF No. 14] and Defendant's Response [ECF No. 15]. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion.


         On June 14, 2019, the Court issued a Scheduling Order which contained, as pertinent here, the following deadlines:


Completion of Fact Discovery

December 13, 2019

Expert Designations

November 15, 2019

Rebuttal Expert Designations

November 29, 2019

Expert Disclosures

December 20, 2019

Rebuttal Expert Disclosures

January 17, 2020

Completion of Expert Discovery

February 21, 2020

ECF No. 11.

         Despite fact discovery having already closed, Plaintiff has not propounded any written discovery and has taken only one deposition. ECF No. 14 at 2. In addition, the record shows Plaintiff did not serve expert witness designations until November 21, 2019 (after being prompted to do so by Defendant). ECF No 15-2 at 2, 4. Further, Plaintiff did not (and has not yet) served expert disclosures. See ECF No. 15-2 at 7.

         In explanation, Plaintiff's lead counsel, Mr. Marcel Stewart asserts he was unaware that fact discovery had closed or that Plaintiff had not timely served its expert disclosures until he received Defendant's expert disclosures-after which he reviewed the Court's Scheduling Order. ECF No. 14 at 3. Mr. Stewart attributes this error to a calendaring mistake made by an associate attorney who Mr. Stewart claims did not enter the Court's Scheduling Order into the office calendar. Id. at 2. Mr. Stewart asserts this error was further compounded because this associate left the firm on November 27, 2019. Id. at 3.

         Plaintiff now belatedly seeks a sixty-day continuance of “the scheduling order deadlines[.]” Id.


         Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only “for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4); see also ECF No. 11 at 7 (“The dates and times set forth herein will not be modified except for good cause shown.”). The Rule 16 good cause standard primarily focuses on the diligence of the moving party. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Essentially, “the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id.

         Mr. Stewart argues that “it is common that attorneys rely on their staff to assist with matters” and that “it is cognizable that a clerical mishap such as this could occur.” ECF No. 14 at 4. As the Ninth Circuit has instructed however, “[c]arelessness is not compatible with a finding of diligence[.]” Johnson, 975 F.2d at 609.

         Plaintiff's counsel's failure to properly calendar dates does not set forth good cause or excusable neglect to modify the Court's Scheduling Order. See Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (counsel's inadvertent failure to calendar deadline does not constitute “good cause”); Andreoli v. Youngevity Int'l, Inc., No. 16-cv-02922-BTM-JLB, 2018 U.S. Dist. LEXIS 179465, at *7 (S.D. Cal. Oct. 17, 2018) (“The Court is unpersuaded by Plaintiff's argument that a change in Plaintiff's principal counsel of record and a resulting switch in the support staff tasked with calendaring deadlines amounts to excusable neglect.”); O'Bryan v. Pier 1 Imps., (U.S.), Inc., No. 17cv1027-WQH-MDD, 2018 U.S. Dist. LEXIS 35751, at *3-4 (S.D. Cal. Mar. 5, 2018) (internal calendaring error not good cause to grant request to amend scheduling order and reopen discovery); Friedman v. Albertson's, LLC, No. 14-CV-828 WQH (NLS), 2015 U.S. Dist. LEXIS 99844, at *7 (S.D. Cal. July 30, 2015) (“[D]efense counsel's mis-calendaring of the parties' rebuttal designation deadline militates against a finding of good cause.”).

         Even taking this supposed “clerical” error aside, Mr. Stewart's actions also militate against a finding of good cause or excusable neglect. Specifically, Mr. Stewart, as Plaintiff's lead counsel, provides no explanation for why he did not bother to review the Court's Scheduling Order until after Defendant had served its expert disclosures. As Defendant notes, Defendant's November 20, 2019 e-mail informing Plaintiff's counsel that Plaintiff had not met the deadline for exchanging expert designations was sent to a “Work” listserv that presumably included Mr. Stewart. See ECF No. 15 at 2, fn. 1. Further, the email was addressed directly to Mr. Stewart. ECF No. 15-2 at 2. This e-mail should have prompted Mr. Stewart to review the ...

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