1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRENDA LAVERY-MADRUGA and Case No.: 3:22-cv-00995-JLS-AHG

JAMES MADRUGA,

12

ORDER GRANTING IN PART AND

Plaintiffs, 13 DENYING IN PART JOINT MOTION v. TO CONTINUE CERTAIN 14

SCHEDULING ORDER DEADLINES

CVS PHARMACY, INC. and LONGS 15

DRUG STORES CALIFORNIA, LLC,

[ECF No. 19] 16 Defendants. 17 Before the Court is the parties’ joint motion to continue certain case management 18 deadlines. ECF No. 19. The parties seek an order from the Court extending the fact 19 discovery cutoff, expert disclosure and reports deadline, rebuttal expert disclosure and 20 reports deadline, expert discovery cutoff, and pre-trial motion filing deadline by 21 approximately four months. Id. 22 Parties seeking to continue deadlines in the scheduling order must demonstrate good 23 24 cause. FED. R. CIV. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent”); ECF No. 13 at 5 (scheduling order, stating “[t]he dates set forth 25 herein will not be modified except for good cause shown”); see also AHG.Chmb.R. at 2 26 (stating that any request for modification of the scheduling order “requires the approval of 27 the Court, which will only be granted on a showing of good cause”). 28 1 “Good cause” is a non-rigorous standard that has been construed broadly across 2 procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 3 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to 4 amend the scheduling order and the reasons for seeking modification. Johnson v. Mammoth 5 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“[T]he focus of the inquiry is upon 6 the moving party’s reasons for seeking modification. . . . If that party was not diligent, the 7 inquiry should end.”) (internal citation omitted). Therefore, “a party demonstrates good 8 cause by acting diligently to meet the original deadlines set forth by the court.” Merck v. 9 Swift Transp. Co., No. CV-16-01103-PHX-ROS, 2018 WL 4492362, at *2 (D. Ariz. 10 Sept. 19, 2018). 11 Here, the fact discovery cutoff is January 6, 2023. ECF No. 13. In the instant motion, 12 the parties have represented to the Court that, since Mr. Madruga had been hospitalized on 13 or about December 2, 2022, and Mrs. Lavery-Madruga has been preoccupied with the care 14 of her husband, neither plaintiff is available to timely respond to Defendants’ written 15 discovery requests or attend depositions. ECF No. 19 at 1–2. The parties also represent that 16 the deposition of Hyundai Forklift of Southern California was cancelled due to the 17 difficulty in confirming the serial number of the forklift at issue, and that it is unlikely that 18 the deposition would be completed before the January 6, 2023, discovery cutoff. Id. at 2. 19 Though they represent that “[a]ll reasonable steps have been taken to comply with existing 20 deadlines,” the parties concede that Plaintiff has not yet served written discovery on 21 Defendants and the parties have not yet taken the depositions of six CVS employees who 22 were present at the time of the incident at the center of this case. Id. at 2, 4. Hence, the 23 parties seek an order from the Court extending certain scheduling order deadlines by 24 approximately four months. Id. at 2–3. Specifically, the parties seek to extend the fact 25 discovery cutoff from January 6 to May 6, extend the expert disclosure and reports deadline 26 from February 6 to June 6, extend the rebuttal expert disclosure and reports deadline from 27 March 6 to July 6, extend the expert discovery cutoff from April 6 to August 7, and extend 28 the pre-trial motion filing deadline from June 2 to September 1. Id. 1 The parties have not shown the diligence necessary for the Court to find good cause 2 to extend the deadlines by four months. The Court held the Case Management Conference 3 (“CMC”) on August 25, 2022, and specifically told counsel that they needed to swiftly get 4 started on discovery. ECF No. 12 at 0:51–1:01. However, the parties did not diligently start 5 pursuing discovery—almost four months after the CMC, Plaintiff has not yet served written 6 discovery and the parties have not yet deposed witnesses. ECF No. 19 at 2. Mr. Madruga’s 7 December hospitalization is not enough to excuse a lack of diligence from August to 8 November, and the parties did not meet their burden to persuade the Court that they were 9 diligent between August and November. See AHG.Chmb.R. at 2 (requiring that motions to 10 continue contain “[a] declaration from the counsel seeking the continuance that describes 11 the steps taken to comply with the existing deadlines, and the specific reasons why the 12 deadlines cannot be met”) (emphasis added). In light of Mr. Madruga’s hospitalization and 13 the necessary rescheduling of his depositions, and the IMEs and deposition of Mrs. Lavery- 14 Madrgua, the Court does find good cause to grant a slight extension. Therefore, the Court 15 GRANTS IN PART AND DENIES IN PART the motion as follows: 16 1. All fact discovery shall be completed by all parties by March 3, 2023. 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 regard to 22 all discovery disputes in compliance with Local Rule 26.1(a). A failure to comply in this 23 regard will result in a waiver of a party’s discovery issue. Absent an order of the court, no 24 stipulation continuing or altering this requirement will be recognized by the court. The 25 Court expects counsel to make every effort to resolve all disputes without court 26 intervention through the meet and confer process. If the parties reach an impasse on any 27 discovery issue, the movant must e-mail chambers at efile_goddard@casd.uscourts.gov no 28 later than 45 days after the date of service of the written discovery response that is in 1 dispute, seeking a telephonic conference with the Court to discuss the discovery dispute. 2 The email must include: (1) at least three proposed times mutually agreed upon by the 3 parties for the telephonic conference; (2) a neutral statement of the dispute; and (3) one 4 sentence describing (not arguing) each parties’ position. The movant must copy opposing 5 counsel on the email. No discovery motion may be filed until the Court has conducted its 6 pre-motion telephonic conference, unless the movant has obtained leave of Court. All 7 parties are ordered to read and to fully comply with the Chambers Rules of 8 Magistrate Judge Allison H. Goddard. 9 2. The parties shall designate their respective experts in writing by April 3, 2023. 10 The parties must identify any person who may be used at trial to present evidence pursuant 11 to Rules 702, 703 or 705 of the Fed. R. Evid. This requirement is not limited to retained 12 experts. The date for exchange of rebuttal experts shall be by May 3, 2023. The written 13 designations shall include the name, address and telephone number of the expert and a 14 reasonable summary of the testimony the expert is expected to provide. The list shall also 15 include the normal rates the expert charges for deposition and trial testimony. 16 3. By April 3, 2023, each party shall comply with the disclosure provisions in 17 Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This disclosure 18 requirement applies to all persons retained or specially employed to provide expert 19 testimony, or whose duties as an employee of the party regularly involve the giving of 20 expert testimony. Except as provided in the paragraph below, any party that fails to make 21 these disclosures shall not, absent substantial justification, be permitted to use evidence or 22 testimony not disclosed at any hearing or at the time of trial. In addition, the Court may 23 impose sanctions as permitted by Fed. R. Civ. P. 37(c). 24 4. Any party shall supplement its disclosure regarding contradictory or rebuttal 25 evidence under Fed. R. Civ. P. 26(a)(2)(D) by May 3, 2023. 26 5. All expert discovery shall be completed by all parties by June 2, 2023. The 27 parties shall comply with the same procedures set forth in the paragraph governing fact 28 discovery. Failure to comply with this section or any other discovery order of the court 1 result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 2 || the introduction of experts or other designated matters in evidence. 3 6. All other pretrial motions must be filed by July 3, 2023. Counsel for the 4 moving party must obtain a motion hearing date from the law clerk of the judge who will 5 ||hear the motion. The period of time between the date you request a motion date and the 6 || hearing date may vary from one district judge to another. Please plan accordingly. Failure 7 make a timely request for a motion date may result in the motion not being heard. 8 || Motions in limine are to be filed as directed in the Local Rules, or as otherwise set by the 9 || district judge. 10 7. All other dates, deadlines, and procedures set forth in the Court’s Scheduling 11 || Order (ECF No. 13) remain in place, except as explicitly modified by this Order. 12 13 IT IS SO ORDERED. 14 Dated: December 15, 2022 _ArwiornH. Kuler Honorable Allison H. Goddard 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28