McAllister v. United States of America, No. 3:2019cv01490 - Document 90 (S.D. Cal. 2021)
Court Description: Order Granting Joint Motion to Amend Scheduling Order (ECF No. 89 ). Mandatory Settlement Conference set for 5/20/2022 at 09:30 AM before Magistrate Judge Allison H. Goddard. Signed by Magistrate Judge Allison H. Goddard on 8/18/21. (jmo)
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McAllister v. United States of America Doc. 90 Case 3:19-cv-01490-MMA-AHG Document 90 Filed 08/18/21 PageID.571 Page 1 of 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY McALLISTER, Case No.: 3:19-cv-01490-MMA-AHG Plaintiff, 12 13 v. 14 UNITED STATES OF AMERICA, PASHA HAWAII HOLDINGS, LLC, and DOES 1-10, inclusive, in personam; and M/V MARJORIE C, her engines, apparel, electronics, tackle, boats, appurtenances, etc. in rem, 15 16 17 18 19 20 Third-Party Plaintiff, v. 23 M/V MARJORIE C, her engines, apparel, electronics, tackle, boats, appurtenances, etc., in rem, 26 27 [ECF No. 89] UNITED STATES OF AMERICA, 22 25 ORDER GRANTING JOINT MOTION TO AMEND SCHEDULING ORDER Defendants. 21 24 In Admiralty Third-Party Defendant. AND RELATED ACTIONS 28 1 3:19-cv-01490-MMA-AHG Dockets.Justia.com Case 3:19-cv-01490-MMA-AHG Document 90 Filed 08/18/21 PageID.572 Page 2 of 6 1 2 This matter comes before the Court on the parties’ fourth Joint Motion for Amended Scheduling Order. ECF No. 89. 3 Under Fed. R. Civ. P 16(b)(4), “[a] schedule may be modified only for good cause 4 and with the judge’s consent.” “Good cause” is a non-rigorous standard that has been 5 construed broadly across procedural and statutory contexts. Ahanchian v. Xenon Pictures, 6 Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The good cause standard focuses on the diligence 7 of the party seeking to amend the scheduling order and the reasons for seeking 8 modification. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 9 “[T]he court may modify the schedule on a showing of good cause if it cannot reasonably 10 be met despite the diligence of the party seeking the extension.” Fed. R. Civ. P. 16, advisory 11 committee’s notes to 1983 amendment. Therefore, “a party demonstrates good cause by 12 acting diligently to meet the original deadlines set forth by the court.” Merck v. Swift 13 Transportation Co., No. CV-16-01103-PHX-ROS, 2018 WL 4492362, at *2 (D. Ariz. 14 Sept. 19, 2018). 15 The Court previously extended the case schedule in this matter to give the parties 16 sufficient time to conduct additional depositions if the case did not settle through the 17 private mediation in April, and to schedule a Rule 34 vessel inspection of the MARJORIE 18 C when it is safer to do so (assuming that most people will have received the COVID 19 vaccine by June or July 2021). See ECF No. 87 at 2. In addition, the Court found the parties 20 had established good cause for their requested extensions by identifying various other 21 barriers to meeting the discovery deadlines despite their diligence, such as difficulty 22 locating witnesses, and other key witnesses being unable to appear for depositions because 23 they contracted COVID-19 or had to quarantine due to suspected exposure to the virus. Id. 24 Now, the parties again seek an extension of the case schedule. To establish good 25 cause, the parties explain that the case did not settle at the private mediation on 26 April 16, 2021, but they are still conducting discovery to prepare for second mediation and 27 are in the process of scheduling depositions and updated medical and vocational 28 rehabilitation exams. ECF No. 89 at 3. Significantly, the vessel inspections have still not 2 3:19-cv-01490-MMA-AHG Case 3:19-cv-01490-MMA-AHG Document 90 Filed 08/18/21 PageID.573 Page 3 of 6 1 been scheduled, and the parties report they will not be able to conduct the inspections until 2 October 2021 at the earliest. Id. Specifically, the inspections have been delayed for reasons 3 primarily outside of the parties’ control, including counsel’s scheduling conflicts, 4 operational schedules of the ships, the mandatory two-week quarantine of one vessel due 5 to a crewmember testing positive for COVID-19, and the unavailability of the other vessel 6 (a warship) due to deployment. Id. at 3-4. 7 Although the Court is concerned that the parties are not clear in their motion how 8 many depositions have yet been conducted, 1 indicating that they may not have been 9 diligently pursuing discovery since the unsuccessful April mediation, the Court 10 nonetheless finds the parties have sufficiently established that circumstances outside their 11 control make compliance with the current case schedule infeasible despite their diligence. 12 Thus, the Court finds good cause to GRANT the Joint Motion. However, the parties are 13 cautioned that further continuances will likely not be granted absent a stronger showing of 14 diligence, particularly given that this case commenced more than two years ago. 15 The case schedule is hereby AMENDED as follows: 16 1. All fact discovery shall be completed by all parties by December 10, 2021. 17 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 18 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of 19 time in advance of the cut-off date, so that it may be completed by the cut-off date, taking 20 into account the times for service, notice and response as set forth in the Federal Rules of 21 Civil Procedure. Counsel shall promptly and in good faith meet and confer with 22 regard to all discovery disputes in compliance with Local Rule 26.1(a). A failure to 23 comply in this regard will result in a waiver of a party’s discovery issue. Absent an 24 order of the court, no stipulation continuing or altering this requirement will be 25 26 27 28 1 In the motion, the parties identify at least five depositions that either will be or may be taken, including “the second part of [P]laintiff’s deposition,” but they do not identify any depositions that have been completed. See ECF No. 89 at 3. 3 3:19-cv-01490-MMA-AHG Case 3:19-cv-01490-MMA-AHG Document 90 Filed 08/18/21 PageID.574 Page 4 of 6 1 recognized by the court. The Court expects counsel to make every effort to resolve all 2 disputes without court intervention through the meet and confer process. If the parties 3 reach an impasse on any discovery issue, the movant must e-mail chambers at 4 efile_goddard@casd.uscourts.gov no later than 45 days after the date of service of the 5 written discovery response that is in dispute, seeking a telephonic conference with the 6 Court to discuss the discovery dispute. The email must include: (1) at least three proposed 7 times mutually agreed upon by the parties for the telephonic conference; (2) a neutral 8 statement of the dispute; and (3) one sentence describing (not arguing) each parties’ 9 position. The movant must copy opposing counsel on the email. No discovery motion may 10 be filed until the Court has conducted its pre-motion telephonic conference, unless the 11 movant has obtained leave of Court. All parties are ordered to read and to fully comply 12 with the Chambers Rules of Magistrate Judge Allison H. Goddard. 13 2. By January 14, 2022, each party must comply with the disclosure provisions 14 in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This disclosure 15 requirement applies to all persons retained or specially employed to provide expert 16 testimony, or whose duties as an employee of the party regularly involve the giving of 17 expert testimony. Except as provided in the paragraph below, any party that fails to 18 make these disclosures will not, absent substantial justification, be permitted to use 19 evidence or testimony not disclosed at any hearing or at the time of trial. In addition, 20 the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 21 22 23 3. Any party must supplement its disclosure regarding contradictory or rebuttal evidence under Fed. R. Civ. P. 26(a)(2)(D) by February 4, 2022. 4. All expert discovery must be completed by all parties by March 4, 2022. The 24 parties must comply with the same procedures set forth in the paragraph governing fact 25 discovery. 26 5. Failure to comply with this section or any other discovery order of the court 27 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 28 the introduction of experts or other designated matters in evidence. 4 3:19-cv-01490-MMA-AHG Case 3:19-cv-01490-MMA-AHG Document 90 Filed 08/18/21 PageID.575 Page 5 of 6 1 6. All dispositive pretrial motions, including motions for summary judgment and 2 motions addressing Daubert issues, must be filed by March 25, 2022. 2 Counsel for the 3 moving party must obtain a motion hearing date from Judge Anello’s law clerk. The period 4 of time between the date you request a motion date and the hearing date may vary from 5 one district judge to another. Please plan accordingly. Failure to make a timely request 6 for a motion date may result in the motion not being heard. 7 7. If appropriate, following the filing of an order ruling on a motion for summary 8 judgment or other dispositive pretrial motion, or in the event no such motion is filed, after 9 the expiration of the deadline set forth in paragraph 8, supra, Judge Anello will issue a 10 pretrial scheduling order setting a pretrial conference, trial date, and all related pretrial 11 deadlines. The parties must review and be familiar with Judge Anello’s Civil Chambers 12 Rules, which provide additional information regarding pretrial scheduling. 13 8. A Mandatory Settlement Conference shall be conducted on 14 May 20, 2022 at 9:30 AM in the chambers of Magistrate Judge Allison H. Goddard. 15 Plaintiff must serve on Defendant a written settlement proposal, which must include a 16 specific demand amount, no later than April 29, 2022. The defendant must respond to the 17 plaintiff in writing with a specific offer amount prior to the meet and confer session. The 18 parties should not file or otherwise copy the Court on these exchanges. Rather, the parties 19 must include their written settlement proposals in their respective Settlement Conference 20 Statements to the Court. Counsel for the parties must meet and confer in person or by 21 phone no later than May 6, 2022. Each party must prepare a Settlement Conference 22 Statement, which will be served on opposing counsel and lodged with the Court no later 23 than May 10, 2022. The Statement must be lodged in .pdf format via email to 24 efile_goddard@casd.uscourts.gov (not filed). The substance of the Settlement Conference 25 Statement must comply fully with Judge Goddard’s Mandatory Settlement 26 27 2 28 This deadline is not applicable to pretrial motions in limine. For further information regarding motions in limine, please refer to Judge Anello’s Civil Chambers Rules. 5 3:19-cv-01490-MMA-AHG Case 3:19-cv-01490-MMA-AHG Document 90 Filed 08/18/21 PageID.576 Page 6 of 6 1 Conference Rules (located at https://www.casd.uscourts.gov/Judges/goddard/docs/Godda 2 rd%20Mandatory%20Settlement%20Conference%20Rules.pdf). 3 prepare an optional Confidential Settlement Letter for the Court’s review only, to be 4 lodged with the Court no later than May 10, 2022. The Letter must be lodged in .pdf format 5 via email to efile_goddard@casd.uscourts.gov (not filed). Should a party choose to prepare 6 a Letter, the substance of the Settlement Conference Letter must comply fully with Judge 7 Goddard’s Mandatory Settlement Conference Rules. All parties are ordered to read and 8 to fully comply with the Chambers Rules and Mandatory Settlement Conference 9 Rules of Magistrate Judge Allison H. Goddard. 10 9. Each party may also The dates and times set forth herein will not be modified except for good cause 11 shown. As noted above, the Court is unlikely to grant further extensions of the case 12 schedule without a stronger showing of diligence to complete discovery in compliance with 13 the existing deadlines. 14 10. Briefs or memoranda in support of or in opposition to any pending motion 15 must not exceed twenty-five (25) pages in length without leave of a district court judge. 16 No reply memorandum will exceed ten (10) pages without leave of a district court judge. 17 Briefs and memoranda exceeding ten (10) pages in length must have a table of contents 18 and a table of authorities cited. 19 IT IS SO ORDERED. 20 21 Dated: August 18, 2021 22 23 24 25 26 27 28 6 3:19-cv-01490-MMA-AHG
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