1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ORTHOPAEDIC HOSPITAL, Case No.: 3:19-cv-00970-JLS-AHG
12 Plaintiff, ORDER GRANTING IN PART 13 v. DEFENDANTS’ OPPOSED MOTION TO EXTEND CASE SCHEDULE 14 DJO GLOBAL, INC. and DJO
FINANCE, LLC, 15 Defendants. [ECF No. 66] 16
17 This matter comes before the Court on the Opposed Joint Motion on DJO’s Request 18 for an Extension of Case Schedule. ECF No. 66. Defendants DJO Global, Inc. and DJO 19 Finance, LLC request a two-month extension of the dates set forth in the Court’s Case 20 Management Order (ECF No. 41). Plaintiff opposes Defendants’ request. 21 Under Fed. R. Civ. P 16(b)(4), “[a] schedule may be modified only for good cause 22 and with the judge’s consent.” See also ECF No. 41 ¶ 30 (providing that the dates in the 23 Case Management Order would not be modified “except for good cause shown”). “Good 24 cause” is a non-rigorous standard that has been construed broadly across procedural and 25 statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). 26 The good cause standard focuses on the diligence of the party seeking to amend the 27 scheduling order and the reasons for seeking modification. Johnson v. Mammoth 28 1 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “[T]he court may modify the schedule 2 on a showing of good cause if it cannot reasonably be met despite the diligence of the party 3 seeking the extension.” Fed. R. Civ. P. 16, advisory committee’s notes to 1983 amendment. 4 Therefore, “a party demonstrates good cause by acting diligently to meet the original 5 deadlines set forth by the court.” Merck v. Swift Transportation Co., No. CV-16-01103- 6 PHX-ROS, 2018 WL 4492362, at *2 (D. Ariz. Sept. 19, 2018). Whether the requested 7 extension would prejudice the non-movant is relevant, but secondary to the Court’s 8 consideration of diligence. “Because diligence is the focus of the inquiry, prejudice to the 9 party opposing the modification is not a prerequisite; it does, however, ‘supply additional 10 reasons to deny [the] motion.’” Cruz v. City of Anaheim, No. CV1003997MMMJEMX, 11 2011 WL 13214312, at *2 (C.D. Cal. Dec. 19, 2011) (quoting Johnson, 975 F.2d at 609). 12 Here, Defendants contend there is good cause to extend all dates in the Case 13 Management Order by approximately two months for the following reasons. First, the 14 Court continued the Claim Construction Hearing from April 16 to June 11, 2020 on its own 15 motion, creating the possibility that the current fact discovery end date of July 10, 2020 16 may pass before the Court issues a claim construction order. ECF No. 66 at 2. Defendants 17 express concern that they may need to schedule fact depositions for June 2020 while many 18 stay-at-home orders and travel restrictions are still in place due to the ongoing COVID-19 19 public health crisis. Id. Defendants argue that being forced to prepare and defend all of 20 their witnesses (who are not experts or experience witnesses) remotely will cause prejudice 21 to them; and, further, Defendants expect that many of the restrictions related to COVID- 22 19 will be lifted by August 2020, permitting in-person preparation and defense. Id. at 3. 23 Finally, Defendants argue Plaintiff will not be prejudiced by a two-month extension of the 24 case schedule. 25 Plaintiff opposes the request, challenging the underlying premises that the conditions 26 preventing in-person depositions will have changed in August 2020 or that taking 27 depositions remotely would cause difficulty or prejudice to Defendants, noting that 28 Defendants already deposed Plaintiff’s expert by video in March. Id. at 6-7. Plaintiff also 1 counters that, even if a fact discovery extension is granted, the entire case schedule need 2 not be extended as a result. Id. at 7-8. Finally, Plaintiff asserts that the requested extension 3 would result in prejudice to it, because economic uncertainty has created “particular 4 challenges for non-profit organizations that rely on charitable giving (which has largely 5 dried up) and endowment funding (which has been damaged by a market downturn),” such 6 that Plaintiff would be prejudiced by any delay in obtaining relief in this action. Id. at 8. 7 The Court finds some persuasiveness in the arguments of both parties. In particular, 8 the Court is inclined to agree with Plaintiff that there is no right to prepare witnesses or 9 take depositions in person. The Court has been strongly encouraging all litigants in all of 10 its cases to take depositions remotely in light of travel restrictions and stay-at-home orders, 11 and finds Defendants’ professed burdens associated with conducting discovery remotely 12 to be overstated. Moreover, to credit Defendants’ argument now would justify a potentially 13 indefinite extension of the discovery deadlines in this case, depending on unpredictable 14 developments of the spread of the virus and the responses of various governmental entities 15 over the coming months. The Court agrees with Plaintiff that there is no evidence that 16 circumstances will be materially different in August 2020 than in June 2020. In short, the 17 Court will not continue the discovery schedule solely to ensure that depositions can be 18 taken and witnesses can be prepared in person. 19 Nonetheless, the Court also finds Defendants’ requested extension of the case 20 deadlines to be modest and reasonable in light of the approximately two-month 21 continuance of both the claim construction hearing and Mandatory Settlement Conference 22 (“MSC”) in this matter. See ECF Nos. 63, 65. The Court also finds Plaintiff’s contention 23 that it will be prejudiced by such an extension to be overstated. The stipulated continuance 24 of the MSC by more than three months has already delayed Plaintiff’s earliest possible 25 opportunity to obtain relief. Moreover, the Court finds it generally sensible to extend the 26 case schedule in accordance with the continuance of the key date of the claim construction 27 hearing, to be consistent with the typical trajectory of patent cases in this court. 28 1 Accordingly, the Court will GRANT IN PART Defendants’ request to extend the 2 case schedule.1 The Court’s Case Management Order (ECF No. 41) is HEREBY 3 AMENDED as follows: 4 1. The initial date for the substantial completion of document discovery 5 including electronically stored information (“ESI”) is July 27, 2020. See Patent L.R. 6 2.1(a)(1). 7 2. All fact discovery shall be completed by all parties on or before 8 September 11, 2020. 9 3. A party asserting infringement must serve final amended infringement 10 contentions, within the meaning of Patent L.R. 3.6(a)(1), by September 18, 2020. 11 4. A party opposing a claim of infringement must serve final amended 12 invalidity contentions, within the meaning of Patent L.R. 3.6(b)(2), by October 13, 2020. 13 5. All expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on 14 all parties on or before November 2, 2020. Any contradictory or rebuttal disclosures 15 within the meaning of Rule 26(a)(2)(D)(ii) shall be disclosed on or before 16 December 2, 2020. Unless otherwise stipulated by the parties, the required expert 17 disclosures shall include an expert report as required by Rule 26(a)(2)(B). If a written 18 report is not required, the disclosure must provide the information required under Rule 19 26(a)(2)(c). 20 6. All discovery, including expert discovery, shall be completed by all parties 21 on or before December 22, 2020. 22 7.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ORTHOPAEDIC HOSPITAL, Case No.: 3:19-cv-00970-JLS-AHG
12 Plaintiff, ORDER GRANTING IN PART 13 v. DEFENDANTS’ OPPOSED MOTION TO EXTEND CASE SCHEDULE 14 DJO GLOBAL, INC. and DJO
FINANCE, LLC, 15 Defendants. [ECF No. 66] 16
17 This matter comes before the Court on the Opposed Joint Motion on DJO’s Request 18 for an Extension of Case Schedule. ECF No. 66. Defendants DJO Global, Inc. and DJO 19 Finance, LLC request a two-month extension of the dates set forth in the Court’s Case 20 Management Order (ECF No. 41). Plaintiff opposes Defendants’ request. 21 Under Fed. R. Civ. P 16(b)(4), “[a] schedule may be modified only for good cause 22 and with the judge’s consent.” See also ECF No. 41 ¶ 30 (providing that the dates in the 23 Case Management Order would not be modified “except for good cause shown”). “Good 24 cause” is a non-rigorous standard that has been construed broadly across procedural and 25 statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). 26 The good cause standard focuses on the diligence of the party seeking to amend the 27 scheduling order and the reasons for seeking modification. Johnson v. Mammoth 28 1 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “[T]he court may modify the schedule 2 on a showing of good cause if it cannot reasonably be met despite the diligence of the party 3 seeking the extension.” Fed. R. Civ. P. 16, advisory committee’s notes to 1983 amendment. 4 Therefore, “a party demonstrates good cause by acting diligently to meet the original 5 deadlines set forth by the court.” Merck v. Swift Transportation Co., No. CV-16-01103- 6 PHX-ROS, 2018 WL 4492362, at *2 (D. Ariz. Sept. 19, 2018). Whether the requested 7 extension would prejudice the non-movant is relevant, but secondary to the Court’s 8 consideration of diligence. “Because diligence is the focus of the inquiry, prejudice to the 9 party opposing the modification is not a prerequisite; it does, however, ‘supply additional 10 reasons to deny [the] motion.’” Cruz v. City of Anaheim, No. CV1003997MMMJEMX, 11 2011 WL 13214312, at *2 (C.D. Cal. Dec. 19, 2011) (quoting Johnson, 975 F.2d at 609). 12 Here, Defendants contend there is good cause to extend all dates in the Case 13 Management Order by approximately two months for the following reasons. First, the 14 Court continued the Claim Construction Hearing from April 16 to June 11, 2020 on its own 15 motion, creating the possibility that the current fact discovery end date of July 10, 2020 16 may pass before the Court issues a claim construction order. ECF No. 66 at 2. Defendants 17 express concern that they may need to schedule fact depositions for June 2020 while many 18 stay-at-home orders and travel restrictions are still in place due to the ongoing COVID-19 19 public health crisis. Id. Defendants argue that being forced to prepare and defend all of 20 their witnesses (who are not experts or experience witnesses) remotely will cause prejudice 21 to them; and, further, Defendants expect that many of the restrictions related to COVID- 22 19 will be lifted by August 2020, permitting in-person preparation and defense. Id. at 3. 23 Finally, Defendants argue Plaintiff will not be prejudiced by a two-month extension of the 24 case schedule. 25 Plaintiff opposes the request, challenging the underlying premises that the conditions 26 preventing in-person depositions will have changed in August 2020 or that taking 27 depositions remotely would cause difficulty or prejudice to Defendants, noting that 28 Defendants already deposed Plaintiff’s expert by video in March. Id. at 6-7. Plaintiff also 1 counters that, even if a fact discovery extension is granted, the entire case schedule need 2 not be extended as a result. Id. at 7-8. Finally, Plaintiff asserts that the requested extension 3 would result in prejudice to it, because economic uncertainty has created “particular 4 challenges for non-profit organizations that rely on charitable giving (which has largely 5 dried up) and endowment funding (which has been damaged by a market downturn),” such 6 that Plaintiff would be prejudiced by any delay in obtaining relief in this action. Id. at 8. 7 The Court finds some persuasiveness in the arguments of both parties. In particular, 8 the Court is inclined to agree with Plaintiff that there is no right to prepare witnesses or 9 take depositions in person. The Court has been strongly encouraging all litigants in all of 10 its cases to take depositions remotely in light of travel restrictions and stay-at-home orders, 11 and finds Defendants’ professed burdens associated with conducting discovery remotely 12 to be overstated. Moreover, to credit Defendants’ argument now would justify a potentially 13 indefinite extension of the discovery deadlines in this case, depending on unpredictable 14 developments of the spread of the virus and the responses of various governmental entities 15 over the coming months. The Court agrees with Plaintiff that there is no evidence that 16 circumstances will be materially different in August 2020 than in June 2020. In short, the 17 Court will not continue the discovery schedule solely to ensure that depositions can be 18 taken and witnesses can be prepared in person. 19 Nonetheless, the Court also finds Defendants’ requested extension of the case 20 deadlines to be modest and reasonable in light of the approximately two-month 21 continuance of both the claim construction hearing and Mandatory Settlement Conference 22 (“MSC”) in this matter. See ECF Nos. 63, 65. The Court also finds Plaintiff’s contention 23 that it will be prejudiced by such an extension to be overstated. The stipulated continuance 24 of the MSC by more than three months has already delayed Plaintiff’s earliest possible 25 opportunity to obtain relief. Moreover, the Court finds it generally sensible to extend the 26 case schedule in accordance with the continuance of the key date of the claim construction 27 hearing, to be consistent with the typical trajectory of patent cases in this court. 28 1 Accordingly, the Court will GRANT IN PART Defendants’ request to extend the 2 case schedule.1 The Court’s Case Management Order (ECF No. 41) is HEREBY 3 AMENDED as follows: 4 1. The initial date for the substantial completion of document discovery 5 including electronically stored information (“ESI”) is July 27, 2020. See Patent L.R. 6 2.1(a)(1). 7 2. All fact discovery shall be completed by all parties on or before 8 September 11, 2020. 9 3. A party asserting infringement must serve final amended infringement 10 contentions, within the meaning of Patent L.R. 3.6(a)(1), by September 18, 2020. 11 4. A party opposing a claim of infringement must serve final amended 12 invalidity contentions, within the meaning of Patent L.R. 3.6(b)(2), by October 13, 2020. 13 5. All expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on 14 all parties on or before November 2, 2020. Any contradictory or rebuttal disclosures 15 within the meaning of Rule 26(a)(2)(D)(ii) shall be disclosed on or before 16 December 2, 2020. Unless otherwise stipulated by the parties, the required expert 17 disclosures shall include an expert report as required by Rule 26(a)(2)(B). If a written 18 report is not required, the disclosure must provide the information required under Rule 19 26(a)(2)(c). 20 6. All discovery, including expert discovery, shall be completed by all parties 21 on or before December 22, 2020. 22 7. All other dispositive motions, including those addressing Daubert issues, 23 shall be FILED on or before January 8, 2021. Please be advised that counsel for the 24 moving party must obtain a motion hearing date from the law clerk of the judge who will 25 hear the motion. Failure of counsel to timely request a motion date may result in the 26
27 1 Some of Defendants’ requested dates related to the pretrial conference have been 28 1 motion not being heard. Motions in Limine are to be filed as directed in the Local Rules, 2 or as otherwise set by The Honorable Janis L. Sammartino. 3 8. All parties or their counsel shall fully comply with the Pretrial Disclosure 4 requirements of Fed. R. Civ. P. 26(a)(3) on or before March 25, 2021. Failure to comply 5 with these disclosures requirements could result in evidence preclusion or other sanctions 6 under Fed. R. Civ. P. 37. 7 9. Pursuant to Local Civil Rule 16.1(f)(4), on or before April 1, 2021, the 8 parties shall meet and confer to comply with the provisions of that section and prepare a 9 proposed pretrial order in accordance with Local Rule 16.1(f)(6)(c). The proposed 10 pretrial order must include all content mandated in the Court’s previous Case 11 Management Order. See ECF No. 41 ¶ 26. The Court encourages the parties to consult 12 with the assigned magistrate judge to work out any problems in preparation of the 13 proposed pretrial order. The Honorable Janis L. Sammartino will entertain any 14 questions concerning the conduct of the trial at the pretrial conference. 15 10. Counsel for plaintiff will be responsible for preparing the pretrial order and 16 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f)(6)(a). On or 17 before April 8, 2021, plaintiff’s counsel must provide opposing counsel with the 18 proposed pretrial order for review and approval. Opposing counsel must communicate 19 promptly with plaintiff’s attorney concerning any objections to form or content of the 20 pretrial order, and both parties should attempt promptly to resolve their differences, if 21 any, concerning the order. 22 11. The proposed final pretrial conference order, including objections counsel 23 have to any other party’s Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, 24 served and lodged with The Honorable Janis L. Sammartino’s chambers on or before 25 April 15, 2021, and shall be in the form prescribed in and in compliance with Local Rule 26 16.1(f)(6)(c). Counsel shall also bring a court copy of the pretrial order to the pretrial 27 conference. 28 12. The final pretrial conference shall be held before The Honorable Janis L. 1 ||Sammartino, United States District Court Judge, on April 22, 2021 at 1:30 PM, during 2 || which time the Court will address the submission of motions in limine, trial briefs, 3 || proposed voir dire and jury instructions and the trial schedule. 4 All other requirements set forth in the Court’s previous Case Management Order 5 || (ECF No. 41) and Order continuing the MSC and issuing updated procedures (ECF No. 6 remain in place, except as explicitly modified by this Order or by any intervening 7 || orders of the Court. 8 The parties are cautioned that the Court will not find good cause to grant any 9 || further extensions of the case schedule based on the purported need to take depositions or 10 || prepare witnesses in person. 11 IT IS SO ORDERED. 12 13 || Dated: May 28, 2020 4 _ArwioonH. Kovolar Honorable Allison H. Goddard 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28