United States District Court, D. Arizona
ORDER
Honorable Diane J. Humetewa, United States District Judge
Before
the Court is Defendants' Amended Motion to Amend
Scheduling Order (Doc. 32). Although Plaintiffs have not
filed a Response and the time to do so has not expired, the
Court finds a Response to be unnecessary. Pursuant to the
parties' Stipulation to Amended Scheduling Order (Doc.
21), Defendants' deadline to disclose expert witnesses as
required by Federal Rule of Civil Procedure
(“Rule”) 26(a)(2) was February 22, 2019. (Doc. 22
at 1). Defendants represent that “[t]hrough a series of
events, defense counsel missed the expert witness
disclosure[.]” (Doc. 32 at 2).
Rule
16(b)(4) expressly states that “[a] schedule may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). “The district
court is given broad discretion in supervising the pretrial
phase of litigation, and its decisions regarding the
preclusive effect of a pretrial order . . . will not be
disturbed unless they evidence a clear abuse of
discretion.” C.F. ex rel. Farnan v. Capistrano
Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011),
cert. denied sub nom. C.F. v. Corbett, 565 U.S. 1200
(2012) (citations and internal quotation marks omitted)
(omission in original); see also Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1295 (9th Cir. 2000)
(finding plaintiffs' failure to show diligence should end
the inquiry). In the context of a request to modify a
scheduling order, “good cause” means the
scheduling order's deadlines cannot be met despite the
party's diligence. Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citation
omitted). “Although the existence or degree of
prejudice to the party opposing the modification might supply
additional reasons to deny a motion, the focus of the inquiry
is upon the moving party's reasons for seeking
modification.” Id. “If the party seeking
the modification was not diligent, the inquiry should end and
the motion to modify should not be granted.”
Zivkovic v. S. California Edison Co., 302 F.3d 1080,
1087 (9th Cir. 2002) (citation and internal quotation marks
omitted).
Federal
courts in Arizona and within the Ninth Circuit “have
articulated and undertaken [a] three-step inquiry in
resolving the question of diligence in the context of
determining good cause under Rule 16[.]” Morgal v.
Maricopa County Bd. of Sup'rs, 284 F.R.D. 452, 460
(D. Ariz. June 6, 2012) (quoting Grant v. United
States, 2011 WL 5554878, at *4 (E.D. Cal. Nov. 15,
2011), adopted by, 2012 WL 218959, at * 1 (E.D. Cal.
Jan. 23, 2012)). Under this three-step inquiry:
[T]o demonstrate diligence under Rule 16's “good
cause” standard, the movant may be required to show the
following: (1) that []he was diligent in assisting the
[c]ourt in creating a workable Rule 16 order; (2) that h[is]
noncompliance with a Rule 16 deadline occurred or will occur,
notwithstanding h[is] diligent efforts to comply, because of
the development of matters which could not have been
reasonably foreseen or anticipated at the time of the Rule 16
scheduling conference; and (3) that []he was diligent in
seeking amendment of the Rule 16 order, once it became
apparent that []he could not comply with the order.
Morgal, 284 F.R.D. at 460 (quoting Jackson v.
Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)
(alternations in original and other citations omitted)).
In
seeking leave to modify the Scheduling Order, Defendants have
the burden of establishing good cause within the meaning of
that Rule. As to the first good cause factor, the Court finds
that the record reflects that the Defendants assisted the
Court in creating a workable Rule 16 Order. As to the second
good cause factor, Defendants have provided a series of
unpersuasive explanations for their failure to meet the
expert discourse deadline, including the way in which
Plaintiffs titled their expert disclosure, [1] staffing changes
within Defendants' counsel's firm, and a trial in
another matter that was set to begin on March 18, 2019.
(Id. at 3). None of these proffered explanations
demonstrate that Defendants were diligent in complying with
the Scheduling Order. In fact, Defendants failed to make any
arguments[2] concerning their diligence in complying
with the Scheduling Order. As to the third good cause factor,
Defendants have not met their burden of showing that they
were diligent in seeking an amendment to the Scheduling Order
once it became apparent that they could not comply with the
deadlines. Defendants' expert disclosure deadline was
February 22, 2019, and Defendants did not seek an extension
until April 2, 2019, which is nearly six weeks after the
expert disclosure deadline. Defendants have failed to provide
any explanation for the delay in seeking for the amendment.
Defendants
have not shown that they were unable to meet their expert
disclosure deadline despite their diligence. Thus, the Court
finds Defendants have not established good cause to extend
the deadline. Accordingly, IT IS ORDERED
that Defendants' Amended Motion to Amend Scheduling Order
(Doc. 32) is DENIED.
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Notes:
[1] Defendants provide that
Plaintiffs' expert disclosure “was presented as
“Plaintiff's First Supplement to Disclosure
Statement, ” a characterization that is not technically
accurate since the adoption of the MIDP procedure [General
Order 17-08]. The effect was that, in keeping with the
firm's electronic filing practices and templates, the
document was placed in the case file's Disclosure folder,
rather than the Discovery folder for responses to
interrogatories.” (Doc. 32 at 2-3). Plaintiff's
expert disclosures were due on January 11, 2019, which was
approximately six weeks before Defendants' expert
disclosure deadline. The Court fails to understand the
importance of the way in which Plaintiffs titled their expert
disclosures. Defendants' expert disclosure deadline was
not in any way dependent on Plaintiff's expert
disclosures.
[2] Defendants provide that “the
omission was neither willful nor the result of bad
faith” and that the “[d]eadlines may be
reasonably adjusted so that there is no significant delay in
getting the case set for trial, and no prejudice to
Plaintiffs.” (Doc. 32 at 3). However, as discussed
above, Defendants' Motion is analyzed the Rule
16(b)'s good cause standard, which primarily considers
the diligence of the party seeking the amendment. See
also Johnson, 975 F.2d at 609 (“Unlike Rule
15(a)'s liberal amendment policy which focuses on the bad
faith of the party seeking to interpose an amendment and the
prejudice to the opposing party, Rule 16(b)'s ‘good
cause' standard ...