1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Yesseni a Garcia, ) No. CV-21-00914-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) City of Scottsdale, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Plaintiff’s Motion to Re-Open Discovery (Doc. 100), which 16 has been fully briefed. For the reasons that follow, the Motion will be denied.1 17 Plaintiff’s Motion seeks to reopen discovery for 30–45 days for the limited 18 purpose of designating experts. The Scheduling Order in this case, issued December 8, 19 2021, set the following expert deadlines: Plaintiff’s expert disclosures due July 22, 2022; 20 Defendants’ expert disclosures due August 26, 2022; rebuttal expert disclosures due 21 September 9, 2022; and expert depositions due September 30, 2022, which was also the 22 fact discovery deadline. (Doc. 28). On February 11, 2022, however, Defendants filed a 23 Motion to Stay Discovery pending resolution of their concurrently filed Motion for 24 Summary Judgment, which included qualified immunity arguments that would immunize 25 Defendants from discovery. (Doc. 39). Plaintiff opposed the Motion to Stay (Doc. 50), 26
27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 but on May 5, 2022, before any expert disclosures were made, Magistrate Judge Boyle 2 granted the Motion to Stay pending resolution of the Motion for Summary Judgment 3 (Doc. 67). 4 On August 15, 2022, after the deadline for Plaintiff’s expert disclosures had 5 passed, the Court granted in part and denied in part Defendant’s Motion for Summary 6 Judgment and referred the case to Magistrate Judge Willett for a settlement conference on 7 the remaining claim. (Doc. 69). The settlement conference was held, unsuccessfully, on 8 December 9, 2022. (Doc. 76). On January 5, 2023, the reference to Judge Boyle was 9 withdrawn and the Court set the case for Final Pretrial Conference. (Doc. 78). 10 On February 13, 2023—after Defendants had filed a motion in limine seeking to 11 preclude undisclosed experts—Plaintiff filed the instant Motion to Re-Open Discovery 12 for the limited purpose of designating experts, arguing that the discovery stay was never 13 lifted so she never had the opportunity to designate experts. Defendants oppose the 14 Motion on several grounds, but primarily argue that Plaintiff has failed to show good 15 cause or the requisite diligence to modify the Scheduling Order. Defendants further argue 16 that discovery would need to be reopened for several months to allow Defendants to 17 address Plaintiff’s experts and take depositions, and that the discovery would be futile 18 because the experts’ testimony would be inadmissible. 19 Under Federal Rule of Civil Procedure (“FRCP”) 16(b)(4), a scheduling order 20 “may be modified only for good cause and with the judge’s consent.” The Ninth Circuit 21 has stated that “[t]he central inquiry under FRCP 16(b)(4) is whether the requesting party 22 was diligent in seeking the amendment.” DRK Photo v. McGraw-Hill Glob. Educ. 23 Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017). If the party requesting a modification 24 “was not diligent, the inquiry should end.” Johnson v. Mammoth Recreations, Inc., 975 25 F.2d 604, 609 (9th Cir. 1992). District courts must consider six factors when ruling on a 26 motion to amend a scheduling order to reopen discovery: “1) whether trial is imminent, 27 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 28 4) whether the moving party was diligent in obtaining discovery within the guidelines 1 established by the court, 5) the foreseeability of the need for additional discovery in light 2 of the time allowed for discovery by the district court, and 6) the likelihood that the 3 discovery will lead to relevant evidence.” City of Pomona v. SQM N. Am. Corp., 866 F.3d 4 1060, 1066 (9th Cir. 2017). 5 Beginning with diligence, even if Plaintiff could not have designated experts while 6 discovery was stayed, she failed to diligently pursue the discovery she now seeks after 7 the Motion for Summary Judgment was denied on August 15, 2022. At that time, it was 8 less than a month since her expert disclosure deadline had passed and there was still more 9 than a month until discovery closed; she could easily have filed a motion to lift the 10 discovery stay, modify Plaintiff’s expert disclosure deadline, and if necessary, extend the 11 time for discovery in general. Instead, she waited six months—after the case was set for 12 Final Pretrial Conference and after the parties filed their pretrial motions and joint 13 proposed pretrial documents—to file the instant motion. 14 Plaintiff asserts that she did not seek to reopen discovery prior to the settlement 15 conference because she “believed the parties had the best chance of settling the case if 16 they did the settlement conference without having conducted additional discovery prior to 17 the settlement conference and simply conducting discovery after the settlement 18 conference in the event the case did not settle.” (Doc. 119 at 2). This explanation rings 19 hollow. First, her Motion to Reopen Discovery was not filed until more than two months 20 after the unsuccessful settlement conference and more than a month after the cases was 21 set for Final Pretrial Conference. Plaintiff offers no explanation, much less good cause, 22 for this delay. Second, Plaintiff knew that the discovery deadline would pass before the 23 settlement conference was conducted; on September 14, 2022 (before the September 30 24 discovery deadline), Judge Willett set the settlement conference for December 2, 2022.2 25 Plaintiff offers no explanation for why she did not seek an extension of the discovery 26 27 2 On December 2, 2022, the settlement conference was continued due to defense counsel’s family emergency and subsequently reset and conducted on December 9, 2022. 28 (Docs. 73, 75, 76). 1 deadline at that time so that she would be able to complete discovery if the settlement 2 conference were unsuccessful. These circumstances show carelessness for the purported 3 need for additional discovery and the Court’s schedule, and “carelessness is not 4 compatible with a finding of diligence and offers no reason for a grant of relief.”3 5 Johnson, 975 F.2d at 609. 6 The finding that Plaintiff was not diligent forecloses the possibility of relief under 7 FRCP 16(b)(4), but other enumerated factors further support the denial of Plaintiff’s 8 Motion. First, although trial has not yet been scheduled, the Court’s Order Setting Final 9 Pretrial Conference, issued January 5, 2023, suggested its intent to schedule trial 10 imminently as the parties were required to “propose at least two blocks of trial dates 11 within 120 days of the date of the Final Pretrial Conference” in their Joint Proposed Final 12 Pretrial Order. (Doc. 78-1 at 7). In fact, in the Joint Proposed Final Pretrial Order, filed 13 on February 7, 2023 prior to the filing of the instant Motion, Plaintiff proposed trial dates 14 as soon as March 6–10, 2023.4 (Doc. 82 at 46). At the March 8, 2023 Final Pretrial 15 Conference, the Court intends to schedule trial within the coming weeks.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Yesseni a Garcia, ) No. CV-21-00914-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) City of Scottsdale, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Plaintiff’s Motion to Re-Open Discovery (Doc. 100), which 16 has been fully briefed. For the reasons that follow, the Motion will be denied.1 17 Plaintiff’s Motion seeks to reopen discovery for 30–45 days for the limited 18 purpose of designating experts. The Scheduling Order in this case, issued December 8, 19 2021, set the following expert deadlines: Plaintiff’s expert disclosures due July 22, 2022; 20 Defendants’ expert disclosures due August 26, 2022; rebuttal expert disclosures due 21 September 9, 2022; and expert depositions due September 30, 2022, which was also the 22 fact discovery deadline. (Doc. 28). On February 11, 2022, however, Defendants filed a 23 Motion to Stay Discovery pending resolution of their concurrently filed Motion for 24 Summary Judgment, which included qualified immunity arguments that would immunize 25 Defendants from discovery. (Doc. 39). Plaintiff opposed the Motion to Stay (Doc. 50), 26
27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 but on May 5, 2022, before any expert disclosures were made, Magistrate Judge Boyle 2 granted the Motion to Stay pending resolution of the Motion for Summary Judgment 3 (Doc. 67). 4 On August 15, 2022, after the deadline for Plaintiff’s expert disclosures had 5 passed, the Court granted in part and denied in part Defendant’s Motion for Summary 6 Judgment and referred the case to Magistrate Judge Willett for a settlement conference on 7 the remaining claim. (Doc. 69). The settlement conference was held, unsuccessfully, on 8 December 9, 2022. (Doc. 76). On January 5, 2023, the reference to Judge Boyle was 9 withdrawn and the Court set the case for Final Pretrial Conference. (Doc. 78). 10 On February 13, 2023—after Defendants had filed a motion in limine seeking to 11 preclude undisclosed experts—Plaintiff filed the instant Motion to Re-Open Discovery 12 for the limited purpose of designating experts, arguing that the discovery stay was never 13 lifted so she never had the opportunity to designate experts. Defendants oppose the 14 Motion on several grounds, but primarily argue that Plaintiff has failed to show good 15 cause or the requisite diligence to modify the Scheduling Order. Defendants further argue 16 that discovery would need to be reopened for several months to allow Defendants to 17 address Plaintiff’s experts and take depositions, and that the discovery would be futile 18 because the experts’ testimony would be inadmissible. 19 Under Federal Rule of Civil Procedure (“FRCP”) 16(b)(4), a scheduling order 20 “may be modified only for good cause and with the judge’s consent.” The Ninth Circuit 21 has stated that “[t]he central inquiry under FRCP 16(b)(4) is whether the requesting party 22 was diligent in seeking the amendment.” DRK Photo v. McGraw-Hill Glob. Educ. 23 Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017). If the party requesting a modification 24 “was not diligent, the inquiry should end.” Johnson v. Mammoth Recreations, Inc., 975 25 F.2d 604, 609 (9th Cir. 1992). District courts must consider six factors when ruling on a 26 motion to amend a scheduling order to reopen discovery: “1) whether trial is imminent, 27 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 28 4) whether the moving party was diligent in obtaining discovery within the guidelines 1 established by the court, 5) the foreseeability of the need for additional discovery in light 2 of the time allowed for discovery by the district court, and 6) the likelihood that the 3 discovery will lead to relevant evidence.” City of Pomona v. SQM N. Am. Corp., 866 F.3d 4 1060, 1066 (9th Cir. 2017). 5 Beginning with diligence, even if Plaintiff could not have designated experts while 6 discovery was stayed, she failed to diligently pursue the discovery she now seeks after 7 the Motion for Summary Judgment was denied on August 15, 2022. At that time, it was 8 less than a month since her expert disclosure deadline had passed and there was still more 9 than a month until discovery closed; she could easily have filed a motion to lift the 10 discovery stay, modify Plaintiff’s expert disclosure deadline, and if necessary, extend the 11 time for discovery in general. Instead, she waited six months—after the case was set for 12 Final Pretrial Conference and after the parties filed their pretrial motions and joint 13 proposed pretrial documents—to file the instant motion. 14 Plaintiff asserts that she did not seek to reopen discovery prior to the settlement 15 conference because she “believed the parties had the best chance of settling the case if 16 they did the settlement conference without having conducted additional discovery prior to 17 the settlement conference and simply conducting discovery after the settlement 18 conference in the event the case did not settle.” (Doc. 119 at 2). This explanation rings 19 hollow. First, her Motion to Reopen Discovery was not filed until more than two months 20 after the unsuccessful settlement conference and more than a month after the cases was 21 set for Final Pretrial Conference. Plaintiff offers no explanation, much less good cause, 22 for this delay. Second, Plaintiff knew that the discovery deadline would pass before the 23 settlement conference was conducted; on September 14, 2022 (before the September 30 24 discovery deadline), Judge Willett set the settlement conference for December 2, 2022.2 25 Plaintiff offers no explanation for why she did not seek an extension of the discovery 26 27 2 On December 2, 2022, the settlement conference was continued due to defense counsel’s family emergency and subsequently reset and conducted on December 9, 2022. 28 (Docs. 73, 75, 76). 1 deadline at that time so that she would be able to complete discovery if the settlement 2 conference were unsuccessful. These circumstances show carelessness for the purported 3 need for additional discovery and the Court’s schedule, and “carelessness is not 4 compatible with a finding of diligence and offers no reason for a grant of relief.”3 5 Johnson, 975 F.2d at 609. 6 The finding that Plaintiff was not diligent forecloses the possibility of relief under 7 FRCP 16(b)(4), but other enumerated factors further support the denial of Plaintiff’s 8 Motion. First, although trial has not yet been scheduled, the Court’s Order Setting Final 9 Pretrial Conference, issued January 5, 2023, suggested its intent to schedule trial 10 imminently as the parties were required to “propose at least two blocks of trial dates 11 within 120 days of the date of the Final Pretrial Conference” in their Joint Proposed Final 12 Pretrial Order. (Doc. 78-1 at 7). In fact, in the Joint Proposed Final Pretrial Order, filed 13 on February 7, 2023 prior to the filing of the instant Motion, Plaintiff proposed trial dates 14 as soon as March 6–10, 2023.4 (Doc. 82 at 46). At the March 8, 2023 Final Pretrial 15 Conference, the Court intends to schedule trial within the coming weeks. Second, 16 Plaintiff’s request to reopen discovery is opposed. Third, Defendants may be prejudiced 17 by the reopening of discovery in the form of additional litigation costs, as they may need 18 to hire and designate their own experts and conduct depositions. Defendants already 19 prepared and filed their proposed pretrial documents based on the understanding that 20 Plaintiff had no expert witnesses. Finally, although Plaintiff may not have been able to
21 3 To be clear, the fact that discovery was stayed when Plaintiff’s expert disclosure 22 deadline passed would certainly have constituted good cause for an extension of the deadline had such a request been made with any degree of diligence. Instead, Plaintiff 23 waited more than six months after the reason for the stay was obviated to make her request despite knowing of the purported need for additional discovery at that time and of 24 the pendency of the discovery deadline. See Lexington Ins. Co. v. Scott Homes Multifamily, Inc., No. CV-12-02119-PHX-JAT, 2015 WL 751204, at *5–6 (D. Ariz. Feb. 25 23, 2015) (denying a plaintiff’s motion to reopen discovery for lack of diligence when the plaintiff did not learn of the documents it sought until after the discovery deadline had 26 passed yet waited more than four months after learning of the documents to file the motion to reopen discovery). 27 4 The Final Pretrial Conference was initially scheduled for February 28, 2023 and 28 was continued to March 8, 2023 on the Court’s own motion. (Doc. 99). 1 | designate her experts before her deadline to do so due to the stay on discovery, she 2| asserts that she chose not to pursue additional discovery after the denial in part of the 3 | Motion for Summary Judgment due to the settlement conference—despite knowing that 4 the discovery deadline would expire in the meantime. Plaintiff’s need for the discovery sought was foreseeable six months before she filed the instant Motion. 6 In sum, Plaintiff was not diligent in seeking to reopen discovery. She knew of the 7 | need for the discovery sought before the expiration of the discovery deadline. She could 8 | have sought an extension for discovery when the Motion for Summary Judgment was denied in part on August 15, 2022. She could have asked to reopen discovery following 10 | the unsuccessful settlement conference on December 9, 2022. And she could have asked 11 | to reopen discovery after this Court set a Final Pretrial Conference on January 5, 2023. 12 | Instead, she waited until February 13, 2023, after the parties had filed their joint proposed pretrial documents, after she herself had proposed a March trial date, and after 14| Defendants had filed their motion in limine to preclude undisclosed experts. This is not 15 | diligence, and Plaintiff is therefore not entitled to relief. Accordingly, 16 IT IS ORDERED that Plaintiff's Motion to Reopen Discovery (Doc. 100) is denied. 18 Dated this 2nd day of March, 2023. 19
United States District Judge 22 23 24 25 26 27 28