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7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JENNIFER ROUSH, Case No. 1:21-cv-00556-JLT-BAM

12 Plaintiff, ORDER VACATING HEARING

13 v. ORDER GRANTING PLAINTIFF

JENNIFER ROUSH’S MOTION TO

14 SAN JOAQUIN VALLEY COLLEGE, KEN AMEND SCHEDULING ORDER TO GUERRERO and DOES 1 through 30, EXTEND TIME FOR EXPERT 15 inclusive, DISCOVERY

16 Defendants. (Doc. 30) 17

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Currently before the Court is Plaintiff Jennifer Roush’s (“Plaintiff”) Motion to Amend 19 Scheduling Order to Extend Time for Expert Discovery. (Doc. 30.) Defendants San Joaquin 20 Valley College, Inc. dba San Joaquin Valley College and Ken Guerrero (“Defendants”) filed an 21 opposition to the motion. (Doc. 31.) Plaintiff filed a reply on December 28, 2022. (Doc. 32.) 22 The Court finds the motion suitable for decision without the need for oral argument. 23 Accordingly, the hearing on the motion currently set for January 13, 2023, is HEREBY 24 VACATED, and the matter is submitted on the record. E.D. Cal. L.R. 230(g). 25 Having considered the motion, opposition and reply briefing, as well as the entire record 26 in this case, Plaintiff’s Motion to Amend Scheduling Order to Extend Time for Expert 27 Discovery will be granted pursuant to Federal Rules of Civil Procedure 16(b)(4). 1 I. Background 2 This is a gender discrimination, pregnancy discrimination, and wrongful termination of 3 employment action pursuant to the California Fair Employment and Housing Act, Civil Rights 4 Act of 1964, and California Family Rights Act. The matter was removed from Tulare County 5 Superior Court on April 1, 2021. (Doc. 1.) On May 11, 2021, Plaintiff filed the operative 6 Second Amended Complaint. (Doc. 9.) Defendants filed their Answer on May 25, 2021. 7 (Doc. 11.) 8 On July 1, 2021, the Court held a Scheduling Conference with the parties. (Doc. 14.) On 9 July 2, 2021, the Court issued a Scheduling Conference Order, which set the following pretrial 10 deadlines: Non-Expert Discovery Deadline: July 22, 2022 11 Expert Discovery Deadline: December 9, 2022 Pretrial Motion Filing Deadline: January 16, 2023 12 (Doc. 15.) The Court also set a Pretrial Conference on July 14, 2023. (Id.) The Court did not 13 set a trial date in light of the ongoing judicial emergency in the Eastern District of California. 14 (See Doc. 2-2.) 15 In the Scheduling Order, the Court advised the parties that if they determined at any time 16 that the schedule could not be met, they must notify the Court immediately so that adjustments 17 could be made, either by stipulation or by subsequent status conference. (Doc. 15 at 5.) The 18 Court also provided the following warning: 19

The dates set in this Order are considered to be firm and will not be modified 20 absent a showing of good cause even if the request to modify is made by stipulation. Stipulations extending the deadlines contained herein will not be 21 considered unless they are accompanied by affidavits or declarations, and where appropriate, attached exhibits, which establish good cause for granting the relief 22 requested. 23 (Id. at 6.) The Court has not otherwise modified the Scheduling Order. 24 On January 7, 2022, the matter was reassigned from “Unassigned DJ” to District Judge 25 Jennifer L. Thurston. (Doc. 17.) Plaintiff filed an ex parte application to amend the 26 scheduling order to extend time for expert discovery on December 5, 2022. (Doc. 28.) The 27 Court denied that ex parte application on December 6, 2022. (Doc. 29.) Plaintiff then filed the 1 instant motion on December 7, 2022. (Doc. 30.) Defendants filed their opposition to the 2 motion on December 21, 2022. (Doc. 31.) Plaintiff filed a reply on December 28, 2022. (Doc. 3 32.) 4 II. Motion to Amend the Court’s Scheduling Order 5 A. Legal Standard 6 District courts enter scheduling orders in actions to “limit the time to join other parties, 7 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3). Once 8 entered, a scheduling order “controls the course of the action unless the court modifies it.” Fed. 9 R. Civ. P. 16(d). Scheduling orders are intended to alleviate case management problems, 10 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992), and are “the heart 11 of case management,” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3rd Cir. 1986). 12 Indeed, a scheduling order is “not a frivolous piece of paper, idly entered, which can be 13 cavalierly disregarded by counsel without peril.” Johnson, 975 F.2d at 610. Accordingly, 14 pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified only 15 for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Green Aire for 16 Air Conditioning W.L.L. v. Salem, No. 1:18-cv-00873-LJO-SKO, 2020 WL 58279, at *3 (E.D. 17 Cal. Jan. 6, 2020.) (“Requests to modify a scheduling order are governed by Rule 16(b)(4) of 18 the Federal Rules of Civil Procedure, which provides that a court may modify a scheduling 19 order ‘only for good cause.’”). As the Ninth Circuit has explained,

20 In these days of heavy caseloads, trial courts in both the federal and state system routinely set schedules and establish deadlines to foster the efficient treatment and 21 resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the 22 deadlines. Parties must understand that they will pay a price for failure to comply strictly with the scheduling and other orders, and that failure to do so may properly 23 support severe sanctions and exclusions of evidence. 24 Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). 25 Good cause requires a showing of due diligence. Johnson, 975 F.2d at 609; Sprague v. 26 Fin. Credit Network, Inc., NO. 1:18-cv-00035-SAB, 2018 WL 4616688, at *4 (E.D. Cal. Sept. 27 25, 2018) (“[Good cause] requires the party to show that despite due diligence the scheduled 1 burden of demonstrating good cause. Handel v. Rhoe, No. 14-cv-1930-BAS(JMA), 2015 WL 2 6127271, at *2 (S.D. Cal. Oct. 16, 2015) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 3 1087 (9th Cir. 2002) and Johnson, 974 F.2d at 608-609.). The Court may modify the 4 scheduling order “if it cannot reasonably be met despite the diligence of the party seeking the 5 extension.” Johnson, 974 F.2d at 609. If the party was not diligent, then the inquiry should 6 end. Id. 7 B. Discussion 8 Plaintiff moves to modify the Scheduling Order for the limited purpose of extending 9 expert discovery. (Doc. 30.) In her moving papers, Plaintiff claims that she acted diligently in 10 noticing defense experts’ depositions and in seeking modification of the Scheduling Order 11 once it became clear that the deadline could not be met despite her diligence. (Doc. 30-1 at 3- 12 7; Doc. 32 at 3-4.) On November 18, 2022, Plaintiff’s counsel notified defense counsel that 13 she was noticing depositions of experts Erik Volk and Chris Meyers and proposed potential 14 dates for depositions. (Doc. 30-2 ¶ 8.) On November 21, 2022, Plaintiff’s counsel sent a 15 follow-up email to defense counsel requesting a response and stating that she planned to serve 16 deposition notices prior to the Thanksgiving holiday. (Id. ¶ 9.) Later that day, Plaintiff’s 17 counsel spoke with defense counsel Alden Parker and agreed on December 6, 2022 for Erik 18 Volk’s deposition and December 8 for Chris Meyer’s deposition. (Id. ¶ 11.) On November 19 22, 2022, Plaintiff’s counsel discussed service of the experts with defense counsel Alden 20 Parker and Christopher Truxler. (Id. ¶¶ 12-17.) The same day, Plaintiff’s counsel served Mr. 21 Truxler’s office with subpoenas and notices of depositions for Defendants’ experts. (Id. ¶ 17.) 22 On November 30, 2022, Plaintiff’s counsel emailed defense counsel to confirm that the expert 23 depositions would go forward. (Id. ¶ 18.) Mr. Truxler responded that the experts had 24 scheduling conflicts and would be unable to appear for the depositions. (Id. ¶ 19.) On 25 December 1, 2022, Plaintiff’s counsel received an email from Mr. Truxler in which Mr. 26 Truxler stated that he could not reach Defendants’ experts to confirm their availability. (Id. ¶ 27 22., Ex. J to Declaration of Marguerite Meade.) After determining that the expert depositions 1 application to extend the time for expert discovery on December 5, 2022. (Doc. 28.) 2 Following this Court’s denial of that ex parte application, Plaintiff filed the instant motion on 3 December 7, 2022, prior to the December 9, 2022 expert discovery deadline. (Doc. 30, Doc. 4 32 at 3.) 5 The dispositive inquiry is whether Plaintiff was diligent in seeking a modification. 6 Johnson, 974 F.2d at 609. The Court finds that Plaintiff has demonstrated good cause for 7 modification of the Scheduling Order. Plaintiff filed both her initial ex parte application and 8 the instant motion prior to the December 9, 2022 expert discovery deadline. (Docs. 28, 30.) In 9 addition, when it became apparent on December 1, 2022, that Defendants’ experts would not 10 appear for the scheduled depositions, Plaintiff did not delay in seeking an extension of the 11 discovery deadline. The initial ex parte application was filed on Monday, December 5, 2022, 12 two court days following Plaintiff’s counsel’s communications with Mr. Truxler on Thursday, 13 December 1, 2022. (Doc. 28, Doc. 30-2 ¶ 22., Ex. J to Declaration of Marguerite Meade.) 14 Plaintiff’s counsel’s declaration and the record indicate that Plaintiff undertook efforts to 15 modify the expert discovery deadline prior to the December 9, 2022 deadline. Therefore, the 16 Court finds that Plaintiff acted diligently in seeking modification of the Scheduling Order. 17 Defendants argue that Plaintiff’s actions did not comport with Local Rule 144(d), which 18 requires that “[c]ounsel shall seek to obtain a necessary extension from the Court or from other 19 counsel or parties in an action as soon as the need for an extension becomes apparent” and 20 states that “[r]equests for Court-approved extensions brought on the required filing date for the 21 pleading or other document are looked upon with disfavor.” E.D. Cal. L.R. 144(d). 22 Nevertheless, Plaintiff filed both her ex parte application to extend the expert discovery 23 deadline and the instant motion requesting extension of the expert discovery deadline prior to 24 the December 9, 2022 deadline. (Docs. 28, 30.) Moreover, Plaintiff appears to have sought 25 the extension soon after it became apparent on December 1, 2022, that Defendants would not 26 be able to reschedule prior to the December 9, 2022 deadline. (Doc. 28, Doc. 30-2 ¶ 22., Ex. J 27 to Declaration of Marguerite Meade.) Plaintiff learned mere days before the expert cut-off date 1 originally agreed. The Court will not penalize Plaintiff when Defendants were unable to 2 comply with the original agreement to produce experts. 3 Defendants further contend that extension of the deadline will disrupt the Court’s docket 4 and calendar. However, the cases cited by Defendants in support of this argument are 5 inapposite, as they involve parties who failed to meet a filing deadline rather than those who 6 requested extensions prior to the deadline. See Wong v. Regents of Univ. of California, 410 7 F.3d 1052, 1056 (9th Cir. 2005) (Plaintiff attempted to identify witnesses “after a deadline set 8 by the district court”); Singh v. Arrow Truck Sales, Inc., No. 2:05-CV-2564-GEB-KJM, 2006 9 WL 1867540 (E.D. Cal. July 5, 2006) (imposing sanctions where plaintiffs’ counsel failed to 10 file a timely joint status report). In this case, Plaintiff attempted to meet the expert discovery 11 deadline, then requested an extension prior to the expiration of that deadline. While the Court 12 takes seriously its Scheduling Order and attempts to avoid disruption, here Plaintiff has 13 demonstrated diligence sufficient for modification. 14 Finally, Defendants argue that Plaintiff’s motion should be denied as amendment will 15 substantially prejudice Defendant. In support, Defendants argue that the Ninth Circuit has 16 “repeatedly held” that “[p]ermitting amendment to discovery [sic] new facts for a new legal 17 theory will require Defendants to incur substantial fees and costs to develop a new defense” is 18 “prejudicial as a matter of law.” (Doc. 31 at 7.) Defendants cite Coleman v. Quaker Oats Co., 19 in which the Ninth Circuit noted that “[t]his prejudice to [defendant], although not required 20 under Rule 16(b), supplies an additional reason for denying the motion.” 232 F.3d 1271, 1295 21 (9th Cir. 2000) (emphasis added). Similarly, in examining Rule 16(b)’s good cause standard in 22 Johnson v. Mammoth Recreations, Inc. the Ninth Circuit explained, “[a]lthough the existence 23 or degree of prejudice to the party opposing the modification might supply additional reasons 24 to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking 25 modification.” 975 F.2d 604, 609 (9th Cir. 1992). These cases demonstrate that while a 26 consideration of prejudice may support a court’s conclusion, it is not required in assessing 27 whether a party has met the requirements of Rule 16(b). 1 prejudice. (Doc. 31 at 7.) However, these cases dealt with motions for summary judgment, 2 motions to amend complaints, or motions to strike new claims, rather than directly with the 3 immediate issue - extension of an expert discovery deadline under Rule 16(b). See Coleman, 4 232 F.3d (affirming that the district court’s denial of a motion to amend pleadings to add new 5 claims); Polar Bear Prods., Inc. v. Timex Corp., 244 F. App'x 150, 150 (9th Cir. 2007) 6 (affirming district court’s striking of new claims from proposed pretrial order); Eagle v. Am. 7 Tel. & Tel. Co., 769 F.2d 541 (9th Cir. 1985) (preventing shareholders from raising a new 8 theory at summary judgment); Jones v. Cmty. Redevelopment Agency of City of Los Angeles, 9 733 F.2d 646 (9th Cir. 1984) (affirming district court’s motion to dismiss and denial of leave to 10 file a second amended complaint). Defendants’ argument accordingly fails, as Plaintiff has 11 carried her burden under Rule 16(b). 12 III. Conclusion and Order 13 For the reasons stated, Plaintiff’s Motion to Amend Scheduling Order to Extend Time for 14 Expert Discovery (Doc. 30) is GRANTED. The Expert Discovery cutoff is extended from 15 December 9, 2022 to February 10, 2023.1 The Pretrial Motion Filing Deadline is extended 16 from January 16, 2023 to February 24, 2023. 17

IT IS SO ORDERED.

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19 Dated: January 9, 2023 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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21 22 23 24 25 26 27 1 Should Plaintiff have similar difficultly scheduling experts within this time frame, Plaintiff may advise the