Deveroux v. County of Kern

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALAIN DEVEROUX AND JENNIFER Case No. 1:23-cv-00239-CDB VALLE, individually, and as successors in 12 interest of JULIEN DEVEROUX, ORDER GRANTING PARTIES’ 13 Plaintiffs, STIPULATED REQUEST TO AMEND CASE MANAGEMENT DATES AS 14 v. MODIFIED

15 COUNTY OF KERN, et al., ORDER GRANTING LEAVE FOR PLAINTIFF TO FILE AMENDED 16 Defendants. COMPLAINT 17 (Doc. 120) 18 7-DAY DEADLINE 19

20 21 Background 22 Pending before the Court is the parties’ fourth1 joint stipulated request to amend the 23 scheduling order and for leave for Plaintiffs to file a second amended complaint. (Doc. 120). 24 In support of the request, the parties recount the procedural posture of the case and represent 25 that Plaintiff suffered delays regarding his request for bodily fluid samples from the Kern County 26 coroner, due to both the Borel fire and the fact that a vitreous humor sample of the decedent received 27 by Plaintiffs on August 14, 2024 from the coroner was “too small for the anticipated testing.” 28 1 Plaintiffs “intended to obtain the results from the testing of the vitreous humor sample before 2 retaining an expert pathologist;” however, Plaintiffs represent that, after learning the sample was 3 too small, they then sought to retain a pathologist. Plaintiffs successfully retained an expert 4 pathologist in early-October 2024. On November 1, 2024, Plaintiffs represent that they learned 5 from the expert that the cause of death was sepsis rather than hypertensive heart disease, as was 6 listed in the autopsy report. (Doc. 120 at 2). 7 In early-November, the parties noticed and took depositions of Plaintiffs and Defendants 8 Parker, McRoberts, and Huckabee. Plaintiffs also state that they received relevant video recordings 9 on both June 12, 2024 and August 19, 2024. Plaintiffs provide that discovering the actual cause of 10 death of decedent “alters the trajectory of the case.” Based on these factors, the parties seek 11 modification of the operative scheduling order. Id. at 3. 12 Separately, in their joint stipulated request, the parties provide that a proposed “second 13 amended complaint will simplify the case” and that they “stipulate that Plaintiffs may file an 14 amended complaint no later than November 22, 2024.” Id. 15 Discussion 16 District courts enter scheduling orders in actions to “limit the time to join other parties, 17 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3). Once entered, 18 a scheduling order “controls the course of the action unless the court modifies it.” Fed. R Civ. P. 19 16(d). Scheduling orders are intended to alleviate case management problems. Johnson v. 20 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). 21 “A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly 22 disregarded by counsel without peril.” Id. (quotation and citation omitted). Under Federal Rule of 23 Civil Procedure 16(b), a scheduling order “may be modified only for good cause and with the 24 judge’s consent.” Fed. R. Civ. P. 16(b)(4). As the Court of Appeals has observed:

25 In these days of heavy caseloads, trial courts in both the federal and state systems routinely set schedules and establish deadlines to foster efficient treatment and resolution 26 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 deadlines. Parties must 27 understand that they will pay a price for failure to comply strictly with scheduling and other orders... 28 1 Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). “Rule 16(b)’s ‘good cause’ 2 standard primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d 3 at 609. If the moving party is unable to reasonably meet a deadline despite acting diligently, the 4 scheduling order may be modified. Id. If, however, the moving party “‘was not diligent, the inquiry 5 should end’ and the motion to modify should not be granted.” Zivkovic v. So. Cal. Edison Co., 302 6 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 609). 7 The parties propose the following extended deadlines (Doc. 120 at 3-4): 8 Event Current Date New Date 9 Nonexpert Discovery Deadline (and Discovery 01/06/2025 04/07/2025 10 Motion Hearing Deadline) 11 Expert Disclosure Deadline 12/23/2024 02/24/2025 12 Rebuttal Expert Disclosure Deadline 12/13/2024 03/10/2025 13 Expert Discovery Deadline 01/21/2024 04/14/2025 14 Non-Dispositive Motion Filing Deadline 11/19/2024 02/18/2025 15 Non-Dispositive Motion Hearing 12/17/2024 03/18/2025 16 Dispositive Motion Filing Deadline 01/07/2025 04/14/2025 17 Dispositive Motion Hearing 02/11/2025 05/19/2025 18 Pre-Trial Conference 04/14/2024 07/14/2025 19 Trial 06/09/2025 09/09/2025 20 In their filing, the parties proposed a new non-dispositive motion hearing deadline for 21 “03/18/2024.” The Court presumes the parties intended for the deadline to fall on March 18, 2025. 22 For good cause shown, the parties’ stipulated request to amend the scheduling order and for 23 leave for Plaintiffs to file a second amended complaint (Doc. 120) will be granted. 24 Plaintiffs did not submit a proposed amended complaint as required by the Court’s Local 25 Rules. See Local Rule 137(c) (“If filing a document requires leave of court, such as an amended 26 complaint after the time to amend as a matter of course has expired, counsel shall attach the 27 document proposed to be filed as an exhibit to moving papers seeking such leave…If the Court 28 grants the motion, counsel shall file and serve the document in accordance with these Rules…”). 1 Accordingly, Plaintiffs are directed to file a second amended complaint within seven (7) days of 2 service of this order. Defendants shall have 14 days after the filing of Plaintiff’s second amended 3 complaint to respond. 4 Conclusion and Order 5 In light of the parties’ representations and good cause appearing, IT IS HEREBY 6 ORDERED that the scheduling order (Docs. 48, 54, 66, 93) be amended as follows: 7 1. Nonexpert Discovery deadline extended from January 6, 2025 to April 7, 2025. 8 2. Expert Disclosures extended from December 23, 2024 to February 24, 2025. 9 3. Rebuttal Expert Disclosures extended from December 13, 2024 to March 10, 2025. 10 4. Expert Discovery deadline extended from January 21, 2025 to April 14, 2025. 11 5. Non-Dispositive Motion filing deadline extended from November 19, 2024 to 12 February 18, 2025. 13 6. Non-Dispositive Motion hearing deadline extended from December 17, 2024 to 14 March 18, 2025. 15 7. Dispositive Motion filing deadline extended from January 7, 2025 to April 14, 2025. 16 8. Dispositive Motion hearing deadline extended from February 11, 2025 to May 19, 17 2025. 18 9. The Pre-Trial Conference is continued from April 14, 2025 to July 14, 2025. 19 10. Trial is continued from June 9, 2025 to September 9, 2025. 20 IT IS FURTHER ORDERED: 21 1. No later than seven (7) days after service of this order, Plaintiff SHALL FILE as a 22 stand-alone docket entry the second amended complaint proposed in the parties’ 23 stipulated request (Doc. 120); and 24 /// 25 ///

26 27 28 1 2. Defendants shall respond to the second amended complaint within 14 days 2 of its filing (see Fed. R. Civ. P. 15(a)(3)). 3 | IT IS SO ORDERED. * | Dated: _ November 19, 2024 | nnd Rr 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28