United States District Court, S.D. California
BRANDON LEE THOMAS, individually, and as successor in interest to Decedent Michael Thomas, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO MODIFY SCHEDULING ORDER [ECF NO.
Honorable Linda Lopez United States Magistrate Judge
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.
14, 2019, the Court issued a Scheduling Order which
contained, as pertinent here, the following deadlines:
Completion of Fact Discovery
December 13, 2019
November 15, 2019
Rebuttal Expert Designations
November 29, 2019
December 20, 2019
Rebuttal Expert Disclosures
January 17, 2020
Completion of Expert Discovery
February 21, 2020
ECF No. 11.
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.
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.
now belatedly seeks a sixty-day continuance of “the
scheduling order deadlines[.]” Id.
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
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.
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.”).
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 ...