McCoy v. Spidle et al
Filing
227
ORDER GRANTING Plaintiff's 204 Motion to Extend Expert Witness Discovery Cut-Off; ORDER that the Original Expert Discovery Deadline set in the Court's Pretrial Order is VACATED; ORDER that the last Day for Expert Discovery is Friday, July 22, 2011 signed by Senior Judge Stephen M. McNamee on 6/3/2011. (Sant Agata, S)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Davon E. McCoy,
Plaintiff,
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vs.
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R. Spidle, et al.,
Defendants.
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No. CV-07-198-SMM
ORDER
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Before the Court is Plaintiff’s Motion to Extend Expert Witness Discovery Cut-Off
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(Doc. 204). Defendants have filed their Opposition (Doc. 225) and Plaintiff did not file a
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reply.1 After considering the arguments advanced by the parties, the Court makes the
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following rulings.2
BACKGROUND
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On February 6, 2007, Plaintiff, who is currently confined at Salinas Valley State
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Prison, brought this 42 U.S.C. § 1983 action against Defendants employed by the California
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Department of Corrections and Rehabilitation (the “CDCR”). (Doc. 1.) As Defendants
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prevailed in part on a Motion for Summary Judgment (Doc. 123 at 16), three claims remain:
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Plaintiff’s retaliation claim (Claim II) against Defendant M. Dangler (“Dangler”) and
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Plaintiff filed this Motion (Doc. 204) on March 8, 2011. However, the Court extended the
briefing schedule to May 27, 2011 while the parties litigated other pretrial motions.
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Neither Plaintiff nor Defendants requested oral argument. The Court therefore finds the
action suitable for decision without oral argument. See L.R.Civ. 230(g).
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Plaintiff’s deliberate indifference claims (Claims IV and V) against numerous Defendants.
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(Doc. 1 at 11-12, 14-19.) A jury trial is set for January 31, 2012. (Doc. 226.)
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On December 21, 2010, the Court issued its Pretrial Order, ordering that expert
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discovery be completed by February 28, 2011. (Doc. 198 at 1.) Prior to the issuing of the
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Pretrial Order (Doc. 198) both parties stated that they were willing to stipulate to a March
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31, 2011 expert discovery deadline. (Doc. 196 at 1.) On January 14, 2011, Defendants served
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their expert disclosures, with Plaintiff purportedly receiving Defendants’ disclosures on
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January 19, 2011. (Doc. 204-1 at 2, Doc. 225 at 3.) Among the disclosed experts were
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Defendant C. Reyes and David G. Smith, M.D. (“Dr. Smith”). (Doc. 204, Ex. A.) The parties
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began discussing deposition schedules on February 2, 2011, with Plaintiff first proposing
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dates for Plaintiff’s depositions on February 10, 2011. (Doc. 204-1 at 2, Doc. 225 at 3.) On
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February 10, 2011, the parties tentatively agreed to the deposition of Defendant Reyes on
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February 21, 22, 25, or 28 and of Dr. Smith on February 24. (Doc. 204-1 at 3, 225 at 3.) On
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February 11, 2011, Defendants agreed to locate and contact the designated expert witnesses.
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(Doc. 204-1 at 3, Doc. 225 at 3.)
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On February 16, 2011, Defendants informed Plaintiff that they were still attempting
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to determine their witness’ availability, and told Plaintiff that Defendants were unwilling to
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waive the 14-day notice provision for depositions. (Doc. 204-1 at 3, Doc. 225 at 3); Rule
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32(a)(5)(A) (excluding a deposition taken on less than 14 days’ notice if the opposing party
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has a pending motion for protective order requesting that it not be taken). Plaintiff asked
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Defendants on February 16, 2011 to reconsider this position, stating that had Defendants
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notified Plaintiff of their refusal to waive the notice provision, Plaintiff would have
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unilaterally noticed the depositions at an earlier date. (Doc. 204-1 at 3, Doc. 225 at 4.)
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Defendants responded that Plaintiff had no reason to assume that the notice provision was
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waived and asserted that Plaintiff had been dilatory in scheduling depositions, a position that
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Plaintiff disputes. (Doc. 225 at 4.) On March 4, 2011, after discovery had closed, Plaintiff
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contacted Defendants stating that he only wished to depose Defendant Reyes and Dr. Smith,
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and requesting a stipulation for an extension of time to do so. (Doc. 225 at 4.) Defendants
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rejected Plaintiff’s request. (Doc. 225 at 4.)
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DISCUSSION
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A scheduling order may be modified “upon a showing of good cause.” Fed. R. Civ.
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P. 16(b). In determining whether a party has shown “good cause,” the Court primarily
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considers the diligence of the party seeking the amendment. Johnson v. Mammoth
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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The pretrial schedule may be modified
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“if it cannot reasonably be met despite the diligence of the party seeking the extension.” Id.
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at 609. However, if the party seeking the modification “was not diligent, the inquiry should
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end” and the motion to modify should not be granted. Id.
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Here, counsel for both parties appeared to have worked collaboratively to schedule
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depositions from February 2, 2011 until February 16, 2011, when Defendants expressed their
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unwillingness to waive the 14-day notice provision. (Doc. 204-1 at 1-3, Doc. 225 at 1-3.) As
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to Defendant Reyes, it appears that the parties had agreed that his deposition was to occur
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on one of four dates prior to the deadline. (Doc. 204-1 at 4.) And Plaintiff appears to have
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been justified in understanding that the parties were cooperating to schedule Dr. Smith’s
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requested deposition as well. (Doc. 204-1 at 3, Doc. 225 at 3.) Therefore, the Court finds that
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Plaintiff’s efforts in attempting to schedule depositions supports a finding of good cause to
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grant Plaintiff’s request for a modification. See Johnson, 975 F.2d at 609. Given that trial is
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not scheduled to occur until January 31, 2012 and that the parties had initially stipulated
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(Doc. 196 at 1) to extending the expert discovery deadline one month beyond the February
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28, 2011 deadline that the Court set (Doc. 198), it is difficult to see how Defendants would
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be prejudiced by Plaintiff receiving additional time to depose Defendant Reyes and Dr.
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Smith.
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CONCLUSION
IT IS HEREBY ORDERED GRANTING Plaintiff’s Motion to Extend Expert
Witness Discovery Cut-Off (Doc. 204).
IT IS FURTHER ORDERED that the original expert discovery deadline set in the
Court’s Pretrial Order (Doc. 198) is vacated.
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IT IS FURTHER ORDERED that the last day for expert discovery is Friday, July
22, 2011.
DATED this 3rd day of June, 2011.
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