The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 FRANCISCO ROMERO, Case No.: 19-CV-2138-JAH(WVG)
12 Plaintiff,
ORDER DENYING IN PART AND
13 v. GRANTING IN PART JOINT
MOTION TO CONTINUE EXPERT
14 UNITED STATES DEPARTMENT OF
DISCOVERY DEADLINE
JUSTICE et al.,
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Defendants.
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18 Pending before the Court is the parties’ Joint Motion Requesting Continuance of
19 Expert Discovery Cut Off Date By Eight Days filed on September 19, 2022 (“Joint
20 Motion”). (ECF No. 45.) The Joint Motion requested the Court extend the expert discovery
21 deadline so the parties may complete all expert discovery by October 7, 2022. Id. For the
22 reasons set forth below, the Joint Motion is DENIED in part and GRANTED in part.
23 Rule 16(b)(4) of the Federal Rules of Civil Procedure (“Rule 16(b)(4)”) governs
24 when a Court may modify a scheduling order. In determining whether to modify a
25 scheduling order, the Court considers the “good cause” standard set out by Rule 16(b)(4).
26 Rule 16(b)(4)’s “good cause” standard primarily considers the diligence of the parties
27 seeking the amendment. The district court may modify the pretrial schedule “if it cannot
28 reasonably be met despite the diligence of the party seeking the extension.” Johnson v.
1 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citing to Fed.R.Civ.P. 16
2 advisory committee’s notes (1983 amendment); Harrison Beverage Co. v. Dribeck
3 Importers, Inc., 133 F.R.D. 463, 469 (D.N.J.1990); Amcast Indus. Corp. v. Detrex Corp.,
4 132 F.R.D. 213, 217 (N.D.Ind.1990); Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C.
5 1987); 6A Wright, Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d
6 ed. 1990) (“good cause” means scheduling deadlines cannot be met despite party’s
7 diligence). Moreover, Civil Local Rule 16.1(b) requires all counsel “take all steps
8 necessary to bring an action to readiness for trial.” Civ. L.R. 16.1(b).
9 The Court finds good cause does not exist to extend the entire expert discovery
10 deadline from September 29, 2022 to October 7, 2022. As filed, the Joint Motion does not
11 convey whether the parties have made a diligent effort to conduct discovery within the
12 Scheduling Order’s deadlines. No information is provided as to what, if any, expert
13 discovery has been completed thus far. Instead, the Joint Motion provides “due to schedules
14 of both counsel and certain witnesses” two expert depositions have been tentatively
15 scheduled for the week of October 3, 2022. (ECF No. 45 at 2:5-6.) Plaintiff “has tentatively
16 noticed the deposition of Dr. Daniel Farcas for October 6, 2022 and Defendant has
17 tentatively noticed the deposition of Dr. Eric Brown for October 7, 2022.” Id. at 2:7-9.
18 Further, the Joint Motion fails to provide any further detail as to why the depositions for
19 two of the four expert depositions are tentatively scheduled seven and eight days after the
20 expert discovery cut off.
21 The Court also notes that once again the parties appear to be flirting with discovery
22 deadlines. On June 21, 2022, the Court issued an order granting an extension of the fact
23 discovery deadline for the sole purpose of allowing the deposition of Louis Williams. (ECF
24 No. 43.) In considering whether to grant that extension, the Court observed the fact
25 discovery cut off was June 17, 2022 and Plaintiff issued a subpoena for the deposition of
26 Louis Williams on June 3, 2022, setting the deposition for June 16, 2022. Id. Nevertheless,
27 based upon Plaintiff’s Ex Parte Motion requesting the extension, the Court found the
28 parties had substantially completed fact discovery and granted an extension limited in
| || scope for the sole purpose of conducting one final fact witness deposition. (ECF No. 43.)
2 In this instance, the cut off for expert discovery is September 29, 2022 and both
3 || parties appear to have languished and waited until the eleventh hour to notice and schedule
4 || expert depositions. The Joint Motion is entirely silent as to the timeline of noticing these
5 depositions and instead provides Plaintiff “has tentatively noticed the deposition of Dr.
6 || Daniel Farcas for October 6, 2022 and Defendant has tentatively noticed the deposition of
7 || Dr. Eric Brown for October 7, 2022.” (ECF No. 45 at 2:7-9.) There is also no explanation
8 to why all expert discovery should be extended for eight days. Both parties were made
9 || aware of the expert discovery deadline on October 20, 2021 when the Court reviewed dates
10 || at the Case Management Conference and issued the Scheduling Order that same day. (ECF
11 ||No. 35.) Both sides have been aware of the expert discovery deadline for the last eleven
12 ||}months.
13 Accordingly, the Court DENIES the parties’ request to extend the entire expert
14 || discovery deadline from September 29, 2022 to October 7, 2022.
15 I. Depositions of Dr. Daniel Farcas and Dr. Eric Brown
16 Despite the deficiencies which exist in the Joint Motion, the Court is aware the
17 || depositions of Dr. Daniel Farcas and Dr. Eric Brown may be essential to each party’s case.
18 || Similarly, the Court is cognizant of the constraints of experts’ availability. Thus, the Court
19 GRANTS the parties’ request to continue the expert discovery deadline for the sole
20 || purposes of deposing Dr. Daniel Farcas and Dr. Eric Brown.
21 The parties are to depose Dr. Daniel Farcas no later than October 6, 2022 and depose
22 ||Dr. Eric Brown no later than October _7, 2022. All other expert discovery shall be
23 ||completed by September 29, 2022. No changes beyond those made in this order shall
24 || affect any other deadlines in the Court’s Scheduling Order.
25 IT IS SO ORDERED.
26 || Dated: September 20, 2022
UA Ss
28 Hon. William V. Gallo
United States Magistrate Judge