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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

9 10 ANITA VALLADORES, et al., Case No. 1:20-cv-01155-KES-SAB 11 Plaintiffs, ORDER DENYING DEFENDANT’S MOTION 12 TO MODIFY THE SCHEDULING ORDER v. 13 ORDER VACATING HEARING SET FOR

ASHTREE APARTMENTS, LLC, OCTOBER 2, 2024

14 (ECF Nos. 48, 49) Defendant. 15 16

17 I. 18 INTRODUCTION 19 On August 5, 2024, Defendant filed a motion to amend the scheduling order to allow 20 Defendant to submit its expert report for Randall S. Stout.1 (ECF No. 48.) Pursuant to Local 21 Rule 230(c), Plaintiffs’ opposition was due on August 19, 2024; however, one was not filed until 22 September 4, 2024. The Local Rules provide that a party who fails to file a timely opposition is 23 not entitled to be heard in opposition to the motion at oral argument. L.R. 230(c). Accordingly, 24 the hearing set for October 2, 2024 will be vacated. The Court finds a reply brief would not aid 25 the Court in deciding the instant motion. For the reasons set forth herein, the Court shall deny 26 Defendant’s motion to amend the scheduling order.

27 1 Defendant refers to its expert as “Randall Stout” and “Randall Stuart” in its memorandum of points and authorities. (See, e.g., ECF No. 48 at 3.) Because Defendant’s notice of motion refers to the expert as “Randall S. Stout,” the 28 Court refers to the expert as “Mr. Stout” herein. 1 II. 2 BACKGROUND 3 On November 10, 2020, a scheduling order issued setting, in pertinent part, the expert 4 disclosure deadline on August 12, 2021 and expert discovery deadline on October 11, 2021. 5 (ECF No. 15.) On December 6, 2021, Plaintiffs filed a motion for partial summary judgment, or, 6 in the alternative, summary adjudication. (ECF No. 29.) The motion is currently pending before 7 the District Judge. No trial date is set in this matter. 8 In the instant motion to amend the scheduling order, Defendant avers it timely filed its 9 disclosure of expert witnesses on August 12, 2021, which named Randall S. Stout of Construction 10 Services & Investigations, Inc. (ECF No. 48 at 3.) Defendant proffers that due to oversight, it 11 failed to provide Mr. Stout’s expert report pursuant to the Federal Rules of Civil Procedure 12 because a “preliminary report of this nature” is not required under California law.2 (Id.) Upon 13 realizing the oversight, Defendant requested that Plaintiffs stipulate to a motion to amend the 14 scheduling order “to allow for an expert report to be provided concerning the nature of Mr. 15 Stout’s expert testimony.” (Id.) Plaintiffs declined to stipulate. (Id.) Defendant requests that the 16 Court amend the scheduling order “to allow Defendants to submit their expert report for expert 17 Randall S. Stout and allow him to present testimony at trial.” (Id. at 5.) 18 Plaintiffs filed an untimely opposition on September 4, 2024. (ECF No. 50.) Plaintiffs 19 proffer they requested that Defendant produce the written report on August 16, 2021, days after 20 the expert disclosure deadline had expired; however, Defendant represented Mr. Stout had not yet 21 generated a report. (Id. at 4 (see also ECF No. 50-4 at 1 (counsel for Defendant informing 22 counsel for Plaintiffs that “I am not aware of any case law that say [sic] my expert has to have a 23 report done before disclosures. If such exists feel free to share it.”)). Further, Plaintiffs note 24 Defendant requested a stipulation to the instant motion on April 9, 2024, but failed to file the 25

2 Under Rule 26(a)(2)(B), disclosure of an expert witness must be accompanied by a written report if the witness is 26 retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. Here, expert reports were due on the date of expert disclosure on August 27 12, 2021. (See ECF No. 15.) It is unclear to the Court what Defendant refers to when referencing a “preliminary expert report” under the Federal Rules of Civil Procedure but finds any explanation would not aid the Court in 28 determining the narrow issue of whether to amend the scheduling order. 1 motion until August 9, 2024. (Id. at 3.) Plaintiffs argue Defendant’s failure to timely disclose the 2 expert’s report is neither justified nor harmless. (Id. at 3-4 (citing Fed. R. Civ. P. 37(c)(1)).) 3 III. 4 DISCUSSION 5 Defendant brings the instant motion to amend the scheduling order pursuant to Rules 6 26(a)(2) and 37 of the Federal Rules of Civil Procedure. However, Rule 16 governs amendment 7 of a scheduling order. See Fed. R. Civ. P. 16(b)(4) (a scheduling order “may be modified only for 8 good cause and with the judge’s consent.”). The “good cause” standard “primarily considers the 9 diligence of the party seeking the amendment,” and the Court “may modify the pretrial schedule 10 if it cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson 11 v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citation and quotations 12 omitted). The prejudice to other parties, if any, may be considered, but the focus is on the 13 moving party’s reason for seeking the modification. Id. If the party seeking to amend the 14 scheduling order fails to show due diligence, the inquiry should end, and the court should not 15 grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 16 (9th Cir. 2002) (citing Johnson, 975 F.2d at 609). “Relevant inquiries [into diligence] include: 17 whether the movant was diligent in helping the court to create a workable Rule 16 order; whether 18 matters that were not, and could not have been, foreseeable at the time of the scheduling 19 conference caused the need for amendment; and whether the movant was diligent in seeking 20 amendment once the need to amend became apparent.” United States ex rel. Terry v. Wasatch 21 Advantage Grp., LLC, 327 F.R.D. 395, 404 (E.D. Cal. 2018) (quotations and citation omitted). 22 Defendant fails to address whether good cause exists to modify the scheduling order 23 nearly three years after the deadlines expired. The Court does not independently find good cause 24 exists. Plaintiffs proffer they informed Defendant the expert report was overdue on August 16, 25 2021. (ECF No. 50-4 at 2.) In response, Defendant disagreed and stated it would share the report 26 “prior to expert depositions.” (Id.) Expert discovery closed on October 11, 2021. No motion to 27 amend the scheduling order was filed prior to the expiration of any deadline. See W. Coast 28 Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir. 1990) (noting that it is 1 “significant” when a party is seeking a “retroactive reopening” of a discovery deadline because “a 2 request for an extension acknowledges the importance of a deadline, [while] a retroactive request 3 suggests that the party paid no attention at all to the deadline.”). Nothing in the record suggests 4 Defendant could not meet the deadlines set forth in the scheduling order. 5 In its motion, Defendant focuses on Plaintiffs’ purported lack of prejudice. (ECF No. 48 6 at 3-4 (arguing Plaintiffs are not prejudiced by Defendant’s oversight in failing to produce Mr. 7 Stout’s report because (1) Plaintiffs have been fully aware of Defendant’s intention to use Mr. 8 Stout as an expert because Defendant timely and fully disclosed such intent on August 12, 2021 9 in its expert disclosures, and (2) this case is not set for trial and Defendant is open to providing 10 Plaintiffs with the opportunity to depose Mr. Stout as an expert as needed).) However, Defendant 11 fails to address its due diligence. The Ninth Circuit has emphasized that diligence is the primary 12 factor in considering a motion for modification of the scheduling order, and that a lack of 13 diligence is determinative as to whether good cause supports the motion. See Johnson, 975 F.2d 14 at 609 (“Although the existence or degree of prejudice to the party opposing the modification 15 might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving 16 party’s reasons for seeking modification. If that party was not diligent, the inquiry should end.”). 17 Here, Defendant had knowledge of the outstanding expert report no later than August 16, 18 2021. (ECF No. 50-3 at 1.) Further, as Plaintiffs point out, Defendant fails to provide a date 19 when it realized its oversight in producing the expert report. Plaintiffs provide an email dated 20 April 9, 2024 from Defendant which asks whether Plaintiffs would be “willing to stipulate to our 21 Motion to amend the discovery order to allow for our expert report.” (ECF No. 50-5.) Plaintiffs 22 responded the same day that they would not stipulate. Five months later, Defendant filed the 23 instant motion. The Court finds Defendant has not been diligent in seeking amendment once the 24 need to amend became apparent. 25 The Court recognizes Defendant’s—and Plaintiffs’—failure to address diligence is due to 26 improper reliance on Rules 27 and 37 as governing standards for the instant motion to amend the 27 scheduling order. For this reason, the Court finds a reply brief by Defendant would be futile. 28 Plaintiffs have not moved to strike the expert disclosure for failure to produce a report pursuant to ee enn ee ES III IOI II IEE IID IID I OE EE

1 | Rule 26. Thus, whether the failure to disclose the report was substantially justified or is harmless 2 || 1s not properly before the Court. See Fed. R. Civ. P. 37(c). If Plaintiffs contend that the expert 3 | disclosure failed to comply with Rule 26, Plaintiffs are not precluded from filing a proper motion 4 || requesting relief. ° 5 IV. 6 CONCLUSION AND ORDER 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The hearing set for October 2, 2024, is VACATED and the parties will not be 9 required to appear at that time; and 10 2. Defendant’s motion to amend the scheduling order (ECF No. 48) is DENIED. 11 IT IS SO ORDERED. DAM Le 13 | Dated: _September 9, 2024 _ ef 4 UNITED STATES MAGISTRATE JUDGE

15 16 17 18 19 20 21 22 23 24 25 26 3 Tt is unclear whether Mr. Stout’s report has been produced to Plaintiffs. The timing of such production would be a 27 | factor in determining the merits of a potential future motion requesting proper relief for the failure to disclose on August 12, 2021, or any appropriate sanctions related to conducting further discovery as a result of the late 28 | disclosure.