4 THE HONORABLE JUDGE MARSHA J. PECHMAN 5
7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION 9
10 MICHAEL J McKENNA and DARLA M. McKENNA, husband and wife, 11 CAUSE NO. 3:21-CV-05038-MJP Plaintiffs, 12 STIPULATED MOTION TO CONTINUE v. TRIAL DATE AND AMEND THE CASE 13 SCHEDULE HOME DEPOT U.S.A.,INC., a foreign profit 14 corporation, NOTING ON MOTION CALENDAR: SEPTEMBER 23, 2021 15 Defendants.
16 [CLERKS’ ACTION REQUIRED] 17 I. STIPULATED MOTION 18 Pursuant to LR 7(d)(2), Plaintiffs Michael J. McKenna and Darla M. McKenna 19 20 (hereinafter “Plaintiffs”) and Defendant Home Depot U.S.A., Inc. (hereinafter “Defendant”), by 21 and through their respective counsel of record, hereby move this Court to continue the trial date 22 in the above-captioned matter for approximately three months, and to amend the order setting 23 pretrial deadlines in accordance with the continued trial date. There remains outstanding 24 discovery to conduct in this matter, which cannot be completed by the November 26, 2021 25 discovery completion deadline. This is primarily due to the unexpected circumstances 26 STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 1 1 surrounding COVID-19 and the associated delay with obtaining medical records. Therefore, a 2 continuance is required to allow for the completion of necessary discovery and to engage in 3 meaningful alternative dispute resolution. 4 II. FACTS AND PROCEDURAL HISTORY 5 Plaintiffs brought this action for damages arising out of a personal injury at a Home Depot 6 store. The Order Setting Trial Date & Related Dates was signed on March 30, 2021, setting the 7 8 trial date for April 25, 2022 and the discovery cutoff for November 26, 2021.1 There have been 9 no previous motions for continuance of the trial of this matter. 10 The parties encountered a circumstance in discovery that thwarted their efforts to 11 complete discovery by the November 26, 2021 deadline. Since the Court issued the Order 12 Setting Trial Date & Related Dates on March 30, 2021, Mr. McKenna underwent a second 13 surgery to remove hardware that had been left in his shoulder following the first surgery. This 14 surgery took place on April 14, 2021. Thus, the medical records for such procedure were only 15 16 recently obtained by the parties. Further, on September 9, 2021, the parties received an invoice 17 from U.S. Legal for collection of X-ray films from Capital Medical Center that the parties are 18 still expecting. Generally once an invoice is received the records can be expected within the 19 next 30 days. These records were requested on June 10, 2021. 20 Likewise, even though Mr. McKenna executed stipulations in February 2021 to obtain 21 his employment records, the parties are still waiting to obtain the vast majority of these records. 22 23 Per the case schedule, the parties are required to disclose their expert opinions by 24 September 27, 2021. This is not feasable considering that not all of the medical and employment 25
26 1 Dkt. at 10. STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 2 1 records have been received. In order for both parties’ experts to render opinions regarding Mr. 2 McKenna’s condition, they need to be able to review all of the medical records, including X- 3 rays, which we have yet to receive. Once the parties’ experts have provided medical opinions, 4 a vocational rehabilation specialist and/or economist will rely upon such opinions to formulate 5 their own opinions regarding any kind of potential economoc loss. Given the information that 6 is outstanding, the parties request a short continuance to ensure all necessary records are obtained 7 8 prior to depositions, expert discovery and alternative dispute resolution. 9 Furthermore, the parties have agreed to participate in mediation once the outstanding 10 records are received. Each party will likely retain several experts and the parties are making a 11 good faith effort to resolve the claims at mediation without incurring significant expenses of 12 conducting Fed. R. Civ. P. 35 examinations and expenses for the experts’ time for numerous 13 depositions. Regardless of mediation, the parties will be unable to comply with the Court’s order 14 regarding expert dislcosures, which cannot be completed prior to the September 27, 2021 15 16 deadline. It follows that the parties will also be unable to complete discovery associated with 17 the experts opinions or conduct party depositions, Fed. R. Civ. P. 35 examinations and expert 18 depositions, in compliance with the current case schedule’s discovery deadline of November 26, 19 2021. 20 III. EVIDENCE RELIED UPON 21 This motion relies upon the pleadings and other filings of record. 22 23 // 24 // 25 // 26 STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 3 1 IV. POINTS AND AUTHORITY 2 The decision to grant or deny a requested continuance lies with the broad discretion of 3 the district court, and will not be disturbed on appeal absent a clear abuse of discretion.2 The 4 relevant factors for appellate review of an order denying a motion for continuance are: (1) 5 diligent efforts by party(ies) requesting continuance; (2) usefulness of the continuance requested; 6 (3) inconvenience of continuance to other party(ies); and (4) prejudice to requesting party caused 7 8 by denial of the requested continuance.3 Here, all the relevant factors weigh in favor of granting 9 the requested continuance. 10 First, both Plaintiffs and Defendant have been diligent in their efforts to complete 11 discovery in this matter. Stipulations authorizing collection of medical and employment records 12 were exectuted on February 17, 2021 and were processed shortly thereafter. At this time, the 13 parties are waiting on the record retrival company as well as the individual facilities, who are 14 extremely backlogged, to obtain the necessary employment and medical records. Second, the 15 16 short continuance requested is necesasry as the deadline to provide expert opinions is September 17 27 and the parties have yet to receive all meaningful records that would allow an expert to render 18 a complete opinion. The parties simply need more time to allow their experts to exchange 19 information prior to engaging in additional discovery, which cannot occur unless there is a short 20 continuance. A resolution of this case is dependent upon the receipt of complete medical and 21 employment records and the parties require additional time to obtain the records prior to 22 23 engaging in depositions, mediation and a potential Fed. R. Civ. P. 35 examination should 24 25 2 United States v. Flynt, 756 F.2d 1352, 1358, amended, 764 F.2d 675 (9th Cir. 1985). 26 3 Flynt, 756 F.2d 1359-62. STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 4 1 mediation be unsuccessful. Third, there is no inconvenience to the parties as they have stipulated 2 to such continuance. Finally, the parties would be severely prejudiced if they were not able to 3 provide their respective experts all the essential information to formulate their opinions and 4 conduct a potential Fed. R. Civ. P.
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4 THE HONORABLE JUDGE MARSHA J. PECHMAN 5
7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION 9
10 MICHAEL J McKENNA and DARLA M. McKENNA, husband and wife, 11 CAUSE NO. 3:21-CV-05038-MJP Plaintiffs, 12 STIPULATED MOTION TO CONTINUE v. TRIAL DATE AND AMEND THE CASE 13 SCHEDULE HOME DEPOT U.S.A.,INC., a foreign profit 14 corporation, NOTING ON MOTION CALENDAR: SEPTEMBER 23, 2021 15 Defendants.
16 [CLERKS’ ACTION REQUIRED] 17 I. STIPULATED MOTION 18 Pursuant to LR 7(d)(2), Plaintiffs Michael J. McKenna and Darla M. McKenna 19 20 (hereinafter “Plaintiffs”) and Defendant Home Depot U.S.A., Inc. (hereinafter “Defendant”), by 21 and through their respective counsel of record, hereby move this Court to continue the trial date 22 in the above-captioned matter for approximately three months, and to amend the order setting 23 pretrial deadlines in accordance with the continued trial date. There remains outstanding 24 discovery to conduct in this matter, which cannot be completed by the November 26, 2021 25 discovery completion deadline. This is primarily due to the unexpected circumstances 26 STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 1 1 surrounding COVID-19 and the associated delay with obtaining medical records. Therefore, a 2 continuance is required to allow for the completion of necessary discovery and to engage in 3 meaningful alternative dispute resolution. 4 II. FACTS AND PROCEDURAL HISTORY 5 Plaintiffs brought this action for damages arising out of a personal injury at a Home Depot 6 store. The Order Setting Trial Date & Related Dates was signed on March 30, 2021, setting the 7 8 trial date for April 25, 2022 and the discovery cutoff for November 26, 2021.1 There have been 9 no previous motions for continuance of the trial of this matter. 10 The parties encountered a circumstance in discovery that thwarted their efforts to 11 complete discovery by the November 26, 2021 deadline. Since the Court issued the Order 12 Setting Trial Date & Related Dates on March 30, 2021, Mr. McKenna underwent a second 13 surgery to remove hardware that had been left in his shoulder following the first surgery. This 14 surgery took place on April 14, 2021. Thus, the medical records for such procedure were only 15 16 recently obtained by the parties. Further, on September 9, 2021, the parties received an invoice 17 from U.S. Legal for collection of X-ray films from Capital Medical Center that the parties are 18 still expecting. Generally once an invoice is received the records can be expected within the 19 next 30 days. These records were requested on June 10, 2021. 20 Likewise, even though Mr. McKenna executed stipulations in February 2021 to obtain 21 his employment records, the parties are still waiting to obtain the vast majority of these records. 22 23 Per the case schedule, the parties are required to disclose their expert opinions by 24 September 27, 2021. This is not feasable considering that not all of the medical and employment 25
26 1 Dkt. at 10. STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 2 1 records have been received. In order for both parties’ experts to render opinions regarding Mr. 2 McKenna’s condition, they need to be able to review all of the medical records, including X- 3 rays, which we have yet to receive. Once the parties’ experts have provided medical opinions, 4 a vocational rehabilation specialist and/or economist will rely upon such opinions to formulate 5 their own opinions regarding any kind of potential economoc loss. Given the information that 6 is outstanding, the parties request a short continuance to ensure all necessary records are obtained 7 8 prior to depositions, expert discovery and alternative dispute resolution. 9 Furthermore, the parties have agreed to participate in mediation once the outstanding 10 records are received. Each party will likely retain several experts and the parties are making a 11 good faith effort to resolve the claims at mediation without incurring significant expenses of 12 conducting Fed. R. Civ. P. 35 examinations and expenses for the experts’ time for numerous 13 depositions. Regardless of mediation, the parties will be unable to comply with the Court’s order 14 regarding expert dislcosures, which cannot be completed prior to the September 27, 2021 15 16 deadline. It follows that the parties will also be unable to complete discovery associated with 17 the experts opinions or conduct party depositions, Fed. R. Civ. P. 35 examinations and expert 18 depositions, in compliance with the current case schedule’s discovery deadline of November 26, 19 2021. 20 III. EVIDENCE RELIED UPON 21 This motion relies upon the pleadings and other filings of record. 22 23 // 24 // 25 // 26 STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 3 1 IV. POINTS AND AUTHORITY 2 The decision to grant or deny a requested continuance lies with the broad discretion of 3 the district court, and will not be disturbed on appeal absent a clear abuse of discretion.2 The 4 relevant factors for appellate review of an order denying a motion for continuance are: (1) 5 diligent efforts by party(ies) requesting continuance; (2) usefulness of the continuance requested; 6 (3) inconvenience of continuance to other party(ies); and (4) prejudice to requesting party caused 7 8 by denial of the requested continuance.3 Here, all the relevant factors weigh in favor of granting 9 the requested continuance. 10 First, both Plaintiffs and Defendant have been diligent in their efforts to complete 11 discovery in this matter. Stipulations authorizing collection of medical and employment records 12 were exectuted on February 17, 2021 and were processed shortly thereafter. At this time, the 13 parties are waiting on the record retrival company as well as the individual facilities, who are 14 extremely backlogged, to obtain the necessary employment and medical records. Second, the 15 16 short continuance requested is necesasry as the deadline to provide expert opinions is September 17 27 and the parties have yet to receive all meaningful records that would allow an expert to render 18 a complete opinion. The parties simply need more time to allow their experts to exchange 19 information prior to engaging in additional discovery, which cannot occur unless there is a short 20 continuance. A resolution of this case is dependent upon the receipt of complete medical and 21 employment records and the parties require additional time to obtain the records prior to 22 23 engaging in depositions, mediation and a potential Fed. R. Civ. P. 35 examination should 24 25 2 United States v. Flynt, 756 F.2d 1352, 1358, amended, 764 F.2d 675 (9th Cir. 1985). 26 3 Flynt, 756 F.2d 1359-62. STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 4 1 mediation be unsuccessful. Third, there is no inconvenience to the parties as they have stipulated 2 to such continuance. Finally, the parties would be severely prejudiced if they were not able to 3 provide their respective experts all the essential information to formulate their opinions and 4 conduct a potential Fed. R. Civ. P. 35 examination. 5 This is the first request for a continuance in this case. The parties present this request 6 jointly after conferring in good faith to find a date and specified continuance length. In order to 7 8 alleviate these problems, the parties have stipulated to a continuance of the trial date in this 9 matter. The parties have conferred in good faith to find a reasonable amount of time in which to 10 complete necessary discovery and to prepare their respective cases for trial while being mindful 11 of seeking resolution. The parties respectfully request that trial begin on or about August 1, 12 2022, pending the Court’s availability, and that the dates and deadlines conform to that requested 13 date. Counsel for the parties certify that the parties that they represent have been advised of this 14 motion to continue the trial date and associated dates and deadlines, and the bases for this motion. 15 16 The clients of undersigned counsels agree with this motion and its bases. 17 Therefore, the parties stipulate to a continue the trial date and corresponding case 18 schedule deadlines for approximately three months. The new proposed deadlines are set forth 19 below: 20 JURY TRIAL AUGUST 1, 2022 21 Length of Trial 8-10 days 22 23 Expert Witness Disclosure/Reports December 27, 2021 Under FRCP 26(a)(2) Due 24 All motions related to discovery must be filed and January 27, 2021 25 noted on the motion calendar on the third Friday before discovery closes pursuant to CR 7(d) 26 STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 5 1 Deadline to Complete Discovery February 28, 2022 2 All dispositive motions and motions challenging March 25, 2022 expert witness testimony must be filed by 3
4 All motions in limine must be filed by June 21, 2022
5 Agreed Pretrial Order due July 18, 2022
6 Pretrial Conference Set by the Court
7 Trial Briefs, proposed jury instructions, proposed July 18, 2022 8 voir dire, agreed neutral statement of the case, deposition designations, and trial exhibits due 9 V. CONCLUSION 10 The parties agree that additional discovery must be conduted and the discovery 11 12 completion date on the current case schedule cannot accommodate such discovery. In attempt 13 to allievate any delay, the parties have agreed to participate in mediation once all records are 14 received. No previous continuances have been granted and the parties willl be prejudiced if the 15 current case is not continued. Good cause exists to continue the trial by approxmiately three 16 months as indicated above. Therefore, the parties respectfully request that their motion for a trial 17 continuance be granted and that the Clerk be directed to enter an Amended Minute Order Settting 18 19 Pretrial Deadlines in accordance with the continued trial date, as determined by this Court. 20 DATED this 23rd day of September, 2021 in Seattle, Washington. 21 HOLT WOODS & SCISCIANI LLP RODGERS KEE CARD & STROPHY, P.S. 22
23 By s/Kelsey L. Shewbert By s/C. Scott Kee______________ By s/Kaytlin L. Carlson C. Scott Kee, WSBA No. 28173 24 Kelsey L. Shewbert, WSBA No. 51214 Attorney for Plaintiffs Kaytlin L. Carlson, WSBA No. 52606
25 Attorney for Defendant 26 STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 6 1 ORDER 2 Based upon the foregoing stipulated motion, the Court finds good cause to extend the 3 trial date and case deadlines given the Parties’ discovery efforts and the delays they have 4 identified notwithstanding their diligence. But the Court rejects the Parties’ desire to mediate as 5 a valid basis to extend any of the case deadlines. The Parties are free to mediate, but this non- 6 mandatory decision will not serve as a basis to impact the Court’s case deadlines. 7 IT IS HEREBY ORDERED that the trial date and corresponding deadlines are reset as 8 follows: 9 • Deadline for Fed. R. Civ. P. 26(a)(2) Disclosures: December 27, 2021 10 • All motions related to discovery must be filed and noted on the motion calendar 11 on the third Friday before discovery: January 27, 2022 12 • Discovery Completed By: February 28, 2022 13 • Deadline for filing dispositive motions and motions challenging expert witness 14 testimony: March 25, 2022 15 • All motions in limine must be filed by: June 21, 2022 16 • Agreed Pretrial Orders due: July 18, 2022 17 • Pretrial Conference: July 21, 2022 at 1:30 PM 18 • Trial briefs, proposed jury instructions, proposed voir dire, agreed neutral 19 statement of the case, deposition designations and trial exhibits due: July 18, 20 2022 21 • Trial shall commence on August 1, 2022 at 9:00 AM. 22 DATED this 24th day of September, 2021. 23 A 24
25 Marsha J. Pechman 26 United States Senior District Judge STIPULATED MOTION TO CONTINUE TRIAL DATE AND HOLT WOODS & SCISCIANI LLP AMEND THE CASE SCHEDULE 701 PIKE STREET, SUITE 2200 (CAUSE NO. 3:21-CV-05038-MJP)- Page 7