1 The Honorable Jamal N. Whitehead
7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 MARGARET MILLER-HOTCHKISS, CASE NO. 2:23-cv-00908-JNW
10 Plaintiff, STIPULATED MOTION TO MODIFY SCHEDULING ORDER AND PROPOSED 11 v. ORDER
12 SAFEWAY, INC., HEARING DATE: MARCH 14, 2025
13 Defendant.
14 I. RELIEF REQUESTED1 15 The Parties jointly seek to modify the scheduling order, to extend the discovery cutoff 16 to March 19, 2025, to allow Defendant SAFEWAY, Inc. (“Safeway”) to take the 17 deposition of Plaintiff’s medical expert, Dr. Oberg. This proposed change would not 18 change the trial date, nor affect the dispositive motions deadline. This deposition is 19 scheduled; the doctor has been subpoenaed; and the parties are ready to proceed. 20 Whereas the Court denied a prior-similar stipulated motion because it affected the 21 dispositive motions deadline, the requested relief herein would not do that. Good cause 22 exists for this limited modification of the scheduling order to allow new-substitute counsel for 23 24 1 Because this motion is so similar to a previously filed stipulated motion which this Court denied without 25 prejudice, the parties are bolding the only new/different information to assist with the Court’s review. See Dkt. #25 (prior stipulated motion); see also Dkt. #27 (minute order denying motion). S PRTI OP PU OL SA ET DE D O RM DO ET RI O - N 1 -T O MODIFY SCHEDULING ORDER AND W 60i 1ll i Ua nm ios n, K Sa trs et en te , r S u& it eG 4ib 1b 00s PLLC (23-cv-00908-JNW) Seattle, Washington 98101-2380 (206) 628-6600 1 Safeway, who have spent the last several months familiarizing themselves with the issues and 2 the record in this two-year-old case, to complete this discovery. 3 II. STATEMENT OF RELEVANT FACTS 4 This lawsuit arises out of a slip and fall incident at Safeway on September 25, 2021. 5 See Original Compl., Dkt. #1, Attach. 2. Plaintiff MARGARET MILLER-HOTCHKISS 6 (“Plaintiff”) originally filed suit in King County Superior Court, on March 21, 2023. See id. 7 Safeway subsequently removed this lawsuit to this Court by filing a Notice of Removal on 8 June 15, 2023. Dkt. #1. In the twenty months that this case has been venued in this Court, the 9 parties have completed the depositions (1) of the Plaintiff; (2) of Safeway, under Rule 30(b)(6); 10 and (3) of Plaintiff’s liability/human factors expert, Ethan Fenley. Mr. Fenley is one of three 11 experts designated in Plaintiff’s FRCP 26(a)(2) Disclosure of Expert Testimony. The other 12 two are Paul A. Manner, M.D., an orthopedic surgeon, and Pontus B. Oberg, D.O., a physical 13 medicine and rehabilitation doctor. Both of whom are expected to offer testimony in support 14 of Plaintiff’s case (per Plaintiff’s FRCP 26(a)(2) Disclosure Statement, omitted). Whereas 15 prior counsel for Safeway took the deposition of Mr. Fenley, and was scheduled to take the 16 depositions of Drs. Manner and Oberg, the latter two depositions were vacated via agreement 17 of the parties at or around the time of prior defense’s counsel’s withdrawal, with the plan being 18 that new-substitute counsel would take these depositions once they had the opportunity to 19 familiarize themselves with the facts and the issues in the case. See Dkt. # 16 (Stipulated 20 Motion to Extend Trial Date); see also Dkt. # 20 (Order Setting Trial Date and Related Dates).2 21 III. STATEMENT OF ISSUES 22 Whether good cause exists to modify the scheduling order in the manner requested 23 below to enable new counsel for Safeway, who replaced prior counsel, who retired in order to 24
25 2 Prior counsel for Safeway withdrew on November 9, 2024, on account of personal issues related to his elderly parents’ health. S PRTI OP PU OL SA ET DE D O RM DO ET RI O - N 2 -T O MODIFY SCHEDULING ORDER AND W 60i 1ll i Ua nm ios n, K Sa trs et en te , r S u& it eG 4ib 1b 00s PLLC (23-cv-00908-JNW) Seattle, Washington 98101-2380 (206) 628-6600 1 care for his ailing parents, to complete discovery primarily in the form of a couple of Plaintiff 2 expert depositions that prior counsel noted but did not complete prior to his withdrawal. 3 IV. EVIDENCE RELIED UPON 4 This motion is based on the records and pleadings on file with the Court. 5 V. AUTHORITY 6 A. Good Cause Exists To Modify The Scheduling Order 7 FRCP and LCR 16 allow parties to modify the dates specific in the operative 8 scheduling order on a showing of good cause. FRCP 16(b)’s good cause standard primarily 9 considers the diligence of the party or Parties seeking modification of the scheduling order. 10 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “The district court 11 may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence of the 12 party seeking the extension.’” Id. (citing FRCP 16 advisory committee’s notes, 1983 13 amendment). The Ninth Circuit reviews motions to amend or modify, and motions for leave to 14 conduct further discovery, for abuse of discretion. FTC v. Marshall, 781 Fed. Appx. 599, 602- 15 03 (9th Cir. 2019). 16 In this case, the parties have been diligently and cooperatively completing discovery 17 since the time of removal to this this Court in or around June 2023. With respect to discovery 18 that Safeway has yet to complete, and that Safeway is seeking a slight extension of the existing 19 discovery deadline in order to accommodate, prior counsel for Safeway actually had those 20 depositions noted previously and was poised to take them, but had to withdraw immediately to 21 care for his ailing parents. The hurried circumstances of this withdrawal and the appearance of 22 new counsel for Safeway influenced the terms that then-acting counsel for the parties sought in 23 their last stipulated Motion to Continue to Extend Trial Date (Dkt. #16), including the setting 24 of a March 7, 2025, discovery cut-off. The Motion also expressly stated that new counsel for 25 Safeway “needs time to get up to speed” in a case that had been going on at that point for over S PRTI OP PU OL SA ET DE D O RM DO ET RI O - N 3 -T O MODIFY SCHEDULING ORDER AND W 60i 1ll i Ua nm ios n, K Sa trs et en te , r S u& it eG 4ib 1b 00s PLLC (23-cv-00908-JNW) Seattle, Washington 98101-2380 (206) 628-6600 1 a year-and-a-half. Dkt. #16 at p.3. New counsel for Safeway is up to speed now, and is ready 2 to proceed and take these depositions and finish the discovery prior counsel commenced; 3 however, a limited time remains in discovery and Plaintiff’s two remaining experts are not 4 available for depositions within that time. Ergo, the parties agree that counsel for Safeway 5 needs, and should have, more time to complete this discovery. 6 B. Proposed Amended Schedule 7 Event Existing Deadline New Deadline 8 Discovery deadline March 7, 2025 March 19, 2025 9 10 Dispositive motions April 7, 2025 No change 11 Settlement conference June 5, 2025 No change 12 13 All motions in limine June 25, 2025 No change 14 15 Deposition designations July 14, 2025 No change 16 Agreed pretrial order Jule 14, 2025 No change 17 18 Trial briefs, etc. July 21, 2025 No change 19 Pretrial conference July 28, 2025 No change 20 21 VI. CONCLUSION 22 In light of and based on the foregoing, the Parties ask the Court to modify the 23 scheduling order in the manner requested above, and to issue an amended scheduling order. 24
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1 The Honorable Jamal N. Whitehead
7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 MARGARET MILLER-HOTCHKISS, CASE NO. 2:23-cv-00908-JNW
10 Plaintiff, STIPULATED MOTION TO MODIFY SCHEDULING ORDER AND PROPOSED 11 v. ORDER
12 SAFEWAY, INC., HEARING DATE: MARCH 14, 2025
13 Defendant.
14 I. RELIEF REQUESTED1 15 The Parties jointly seek to modify the scheduling order, to extend the discovery cutoff 16 to March 19, 2025, to allow Defendant SAFEWAY, Inc. (“Safeway”) to take the 17 deposition of Plaintiff’s medical expert, Dr. Oberg. This proposed change would not 18 change the trial date, nor affect the dispositive motions deadline. This deposition is 19 scheduled; the doctor has been subpoenaed; and the parties are ready to proceed. 20 Whereas the Court denied a prior-similar stipulated motion because it affected the 21 dispositive motions deadline, the requested relief herein would not do that. Good cause 22 exists for this limited modification of the scheduling order to allow new-substitute counsel for 23 24 1 Because this motion is so similar to a previously filed stipulated motion which this Court denied without 25 prejudice, the parties are bolding the only new/different information to assist with the Court’s review. See Dkt. #25 (prior stipulated motion); see also Dkt. #27 (minute order denying motion). S PRTI OP PU OL SA ET DE D O RM DO ET RI O - N 1 -T O MODIFY SCHEDULING ORDER AND W 60i 1ll i Ua nm ios n, K Sa trs et en te , r S u& it eG 4ib 1b 00s PLLC (23-cv-00908-JNW) Seattle, Washington 98101-2380 (206) 628-6600 1 Safeway, who have spent the last several months familiarizing themselves with the issues and 2 the record in this two-year-old case, to complete this discovery. 3 II. STATEMENT OF RELEVANT FACTS 4 This lawsuit arises out of a slip and fall incident at Safeway on September 25, 2021. 5 See Original Compl., Dkt. #1, Attach. 2. Plaintiff MARGARET MILLER-HOTCHKISS 6 (“Plaintiff”) originally filed suit in King County Superior Court, on March 21, 2023. See id. 7 Safeway subsequently removed this lawsuit to this Court by filing a Notice of Removal on 8 June 15, 2023. Dkt. #1. In the twenty months that this case has been venued in this Court, the 9 parties have completed the depositions (1) of the Plaintiff; (2) of Safeway, under Rule 30(b)(6); 10 and (3) of Plaintiff’s liability/human factors expert, Ethan Fenley. Mr. Fenley is one of three 11 experts designated in Plaintiff’s FRCP 26(a)(2) Disclosure of Expert Testimony. The other 12 two are Paul A. Manner, M.D., an orthopedic surgeon, and Pontus B. Oberg, D.O., a physical 13 medicine and rehabilitation doctor. Both of whom are expected to offer testimony in support 14 of Plaintiff’s case (per Plaintiff’s FRCP 26(a)(2) Disclosure Statement, omitted). Whereas 15 prior counsel for Safeway took the deposition of Mr. Fenley, and was scheduled to take the 16 depositions of Drs. Manner and Oberg, the latter two depositions were vacated via agreement 17 of the parties at or around the time of prior defense’s counsel’s withdrawal, with the plan being 18 that new-substitute counsel would take these depositions once they had the opportunity to 19 familiarize themselves with the facts and the issues in the case. See Dkt. # 16 (Stipulated 20 Motion to Extend Trial Date); see also Dkt. # 20 (Order Setting Trial Date and Related Dates).2 21 III. STATEMENT OF ISSUES 22 Whether good cause exists to modify the scheduling order in the manner requested 23 below to enable new counsel for Safeway, who replaced prior counsel, who retired in order to 24
25 2 Prior counsel for Safeway withdrew on November 9, 2024, on account of personal issues related to his elderly parents’ health. S PRTI OP PU OL SA ET DE D O RM DO ET RI O - N 2 -T O MODIFY SCHEDULING ORDER AND W 60i 1ll i Ua nm ios n, K Sa trs et en te , r S u& it eG 4ib 1b 00s PLLC (23-cv-00908-JNW) Seattle, Washington 98101-2380 (206) 628-6600 1 care for his ailing parents, to complete discovery primarily in the form of a couple of Plaintiff 2 expert depositions that prior counsel noted but did not complete prior to his withdrawal. 3 IV. EVIDENCE RELIED UPON 4 This motion is based on the records and pleadings on file with the Court. 5 V. AUTHORITY 6 A. Good Cause Exists To Modify The Scheduling Order 7 FRCP and LCR 16 allow parties to modify the dates specific in the operative 8 scheduling order on a showing of good cause. FRCP 16(b)’s good cause standard primarily 9 considers the diligence of the party or Parties seeking modification of the scheduling order. 10 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “The district court 11 may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence of the 12 party seeking the extension.’” Id. (citing FRCP 16 advisory committee’s notes, 1983 13 amendment). The Ninth Circuit reviews motions to amend or modify, and motions for leave to 14 conduct further discovery, for abuse of discretion. FTC v. Marshall, 781 Fed. Appx. 599, 602- 15 03 (9th Cir. 2019). 16 In this case, the parties have been diligently and cooperatively completing discovery 17 since the time of removal to this this Court in or around June 2023. With respect to discovery 18 that Safeway has yet to complete, and that Safeway is seeking a slight extension of the existing 19 discovery deadline in order to accommodate, prior counsel for Safeway actually had those 20 depositions noted previously and was poised to take them, but had to withdraw immediately to 21 care for his ailing parents. The hurried circumstances of this withdrawal and the appearance of 22 new counsel for Safeway influenced the terms that then-acting counsel for the parties sought in 23 their last stipulated Motion to Continue to Extend Trial Date (Dkt. #16), including the setting 24 of a March 7, 2025, discovery cut-off. The Motion also expressly stated that new counsel for 25 Safeway “needs time to get up to speed” in a case that had been going on at that point for over S PRTI OP PU OL SA ET DE D O RM DO ET RI O - N 3 -T O MODIFY SCHEDULING ORDER AND W 60i 1ll i Ua nm ios n, K Sa trs et en te , r S u& it eG 4ib 1b 00s PLLC (23-cv-00908-JNW) Seattle, Washington 98101-2380 (206) 628-6600 1 a year-and-a-half. Dkt. #16 at p.3. New counsel for Safeway is up to speed now, and is ready 2 to proceed and take these depositions and finish the discovery prior counsel commenced; 3 however, a limited time remains in discovery and Plaintiff’s two remaining experts are not 4 available for depositions within that time. Ergo, the parties agree that counsel for Safeway 5 needs, and should have, more time to complete this discovery. 6 B. Proposed Amended Schedule 7 Event Existing Deadline New Deadline 8 Discovery deadline March 7, 2025 March 19, 2025 9 10 Dispositive motions April 7, 2025 No change 11 Settlement conference June 5, 2025 No change 12 13 All motions in limine June 25, 2025 No change 14 15 Deposition designations July 14, 2025 No change 16 Agreed pretrial order Jule 14, 2025 No change 17 18 Trial briefs, etc. July 21, 2025 No change 19 Pretrial conference July 28, 2025 No change 20 21 VI. CONCLUSION 22 In light of and based on the foregoing, the Parties ask the Court to modify the 23 scheduling order in the manner requested above, and to issue an amended scheduling order. 24
25 S PRTI OP PU OL SA ET DE D O RM DO ET RI O - N 4 -T O MODIFY SCHEDULING ORDER AND W 60i 1ll i Ua nm ios n, K Sa trs et en te , r S u& it eG 4ib 1b 00s PLLC (23-cv-00908-JNW) Seattle, Washington 98101-2380 (206) 628-6600 1 2 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 3 DATED this 14th day of March, 2025. 4 5 WILLIAMS, KASTNER & GIBBS PLLC GLP ATTORNEYS, P.S., INC.
6 s/Eddy Silverman s/Scott Shawver Eddy Silverman, WSBA No. 53494 Scott Shawver, WSBA No. 24048 7 Kenna Duckworth, WSBA No. 54004 2601 Fourth Avenue, Floor 6 8 601 Union Street, Suite 4100 Seattle, WA 98121 Seattle, WA 98101-2380 Phone: 206.448.1992 9 Phone: 206.628.6600 Email: sshawver@glpattorneys.com Email: esilverman@williamskastner.com 10 Email: kduckworth@williamskastner.com 11 Counsel for Defendant Walmart Inc. Counsel for Plaintiff Maragaret Miller- 12 Hotchkiss
15 ORDER
16 The Court GRANTS the Parties’ stipulated motion and MODIFIES the discovery 17 deadline in accordance with the terms of the Parties’ agreement.
18 IT IS SO ORDERED this 25th day of March, 2025. 19
20 A
21 HONORABLE JAMAL N. WHITEHEAD 22
23 24 25 S PRTI OP PU OL SA ET DE D O RM DO ET RI O - N 5 -T O MODIFY SCHEDULING ORDER AND W 60i 1ll i Ua nm ios n, K Sa trs et en te , r S u& it eG 4ib 1b 00s PLLC (23-cv-00908-JNW) Seattle, Washington 98101-2380 (206) 628-6600