United States District Court, D. Arizona
Honorable Eileen S. Willett, United States Magistrate Judge.
before the Court is Defendants' “Motion to Extend
Case Deadlines” (Doc. 39). This is Defendants'
third request for deadline extensions. (Docs. 19, 26).
January 9, 2019, the Court issued a Case Management Order
setting (i) April 19, 2019 as the deadline for
Plaintiff's expert disclosures; (ii) May 17, 2019 as the
deadline for Defendants' expert disclosures; (iii) June
14, 2019 as the deadline for rebuttal expert disclosures;
(iv) August 2, 2019 as the discovery deadline; and (v) August
16, 2019 as the dispositive motion deadline. (Doc. 18 at
3-4). The Case Management Order advises the parties that
“the Court intends to enforce the deadlines and
guidelines set forth in this Order, and they should plan
their litigation activities accordingly.” (Id.
at 6) (emphasis omitted). The Court granted Defendants'
two prior Motions to Extend Case Deadlines (Docs. 19, 26). As
set forth in the Court's June 26, 2019 Order (Doc. 29),
the deadline for disclosing Defendants' experts was July
31, 2019 and the deadline for disclosing rebuttal experts was
August 30, 2019.
30, 2019, Defendants filed a “Motion to Disqualify
Plaintiff's Expert, John O'Steen, M.D.” (Doc.
24). The Court denied the Motion on August 8, 2019. (Doc.
36). Approximately two months later, on October 4, 2019,
Defendants filed a third “Motion to Extend Case
Deadlines” (Doc. 39). Defendants request that the Court
extend (i) the defense expert disclosure deadline to October
31, 2019; (ii) the rebuttal expert deadline to November 29,
2019; (iii) the settlement discussion deadline to December
31, 2019; (iv) the discovery/expert deposition deadline to
December 31, 2019; and (v) the dispositive motion deadline to
January 15, 2020.
16 scheduling order may be “modified only for good
cause and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). “Rule 16(b)'s ‘good cause'
standard primarily considers the diligence of the party
seeking the amendment. The district court may modify the
pretrial schedule ‘if it cannot reasonably be met
despite the diligence of the party seeking the
extension.'” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting FED. R.
CIV. P. 16 advisory committee's notes (1983 amendment))
(citations omitted). “[C]arelessness is not compatible
with a finding of diligence and offers no reason for a grant
of relief.” Id. (citations 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. (citation omitted).
“If that party was not diligent, the inquiry should
end.” Id. “The party seeking to continue
or extend the deadlines bears the burden of proving good
cause.” See Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1087 (9th Cir. 2002).
an extension of a deadline sought after its expiration
requires a showing of “excusable neglect, ” not
merely “good cause.” See Fed. R. Civ. P.
6(b)(1)(B). There are at least four factors in determining
whether neglect is excusable: (i) the danger of prejudice to
the opposing party; (ii) the length of the delay and its
potential impact on the proceedings; (iii) the reason for the
delay; and (iv) whether the movant acted in good faith.
See Bateman v. U.S. Postal Serv., 231 F.3d 1220,
1223-24 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co.
v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395
(1993)). The determination of whether neglect is excusable is
ultimately an equitable one, taking into account of all
relevant circumstances surrounding the party's omission.
See Pioneer, 507 U.S. at 395. This equitable
determination is left to the discretion of the district
court. See Pincay v. Andrews, 389 F.3d 853, 860 (9th
Defendants acknowledge that the deadlines for disclosing
defense and rebuttal experts have passed. (Doc. 39 at 3).
Defendants do not address excusable neglect as to their
requested extension of these deadlines, but contend that the
Court should grant their Motion (Doc. 39) for good cause
shown. Defendants explain: (i) that their May 30, 2019 Motion
to Disqualify Plaintiff's Expert (Doc. 24) was not
resolved until August 8, 2019; (ii) that they received over
42, 000 pages of medical records from Banner Health
pertaining to the decedent on July 2, 2019; (iii) that they
approached Plaintiff's counsel regarding deadline
extensions on September 19, 2019 and September 27, 2019; and
(iv) that defense counsel was in trial from September 23,
2019 until October 1, 2019 and in an out-of-state trial from
October 7-11, 2019. (Doc. 41 at 2).
considering the equitable factors set forth in
Pioneer, the Court finds that Defendants have not
met their burden of showing that excusable neglect justifies
a reopening of the defense expert witness and rebuttal
witness deadlines. First, Plaintiff explains that she has
prepared her case based on the unrebutted opinion of her
expert. (Doc. 40 at 4). The Court finds a danger of prejudice
to Plaintiff. Second, Defendants' two-month delay in
requesting a deadline extension is significant. Third,
Defendants have not satisfactorily explained why they waited
over two months after the defense expert disclosure deadline
expired to seek a further extension of case deadlines.
Finally, there is not sufficient evidence from which the
Court may conclude whether Defendants have acted in good
faith. Defendants' Reply indicates that they made a
strategic decision not to disclose their experts while their
Motion to Disqualify Plaintiffs Expert (Doc. 24) was pending.
(Doc. 41 at 2) (“While a motion on experts was pending,
Defendants did not disclose additional experts.”). The
Court did not stay discovery while the Motion to Disqualify
Plaintiff's Expert (Doc. 24) was pending. Moreover, after
Defendants filed the Motion to Disqualify, Defendants moved
to extend the expert defense disclosure deadline to July 31,
2019. (Doc. 26). This suggested to the Court
that Defendants were proceeding with their expert witness
disclosures while the Motion to Disqualify was pending.
also have failed to show good cause to modify the case
deadlines. To the extent that Defendants' receipt of the
Banner Health medical records on July 2, 2019 necessitated
deadline extensions, the long delay in seeking a third
modification of the Scheduling Order indicates a lack of
diligence. See Burgos-Martinez v. City of Worcester,
345 F.Supp.3d 105, 107 (D. Mass. 2018) (that “counsel
was busy is not a satisfactory justification for the untimely
motion”); Blue v. Grannis, No. Civ. S-05-1256,
2007 WL 125408, at *1 (E.D. Cal. Jan. 18, 2007) (finding no
good cause where counsel's excuse for missing a
scheduling order deadline was a busy caseload); Jackson
v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)
(stating that the movant must show that she was
“diligent in seeking amendment of the Rule 16 order,
once it became apparent that she could not comply with the
on the foregoing, IT IS ORDERED denying
Defendants' “Motion to Extend Case Deadlines”
 It is noted that all three of
Defendants “Motions to Extend Case Deadlines”
(Docs. 19, 26, 39) fail to comply with Local Rule of Civil
Procedure 7.3. Local Rule 7.3 provides that “A
statement indicating whether the motion or stipulation is the
first, second, third, etc. requested extension must be
included, which requires a statement below the title of a
motion or stipulation for extension of time that indicates
whether the motion or stipulation is seeking a first, second,