1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES STEWART, individually and as No. 2:19-cv-01744-TLN-DB Successor in Interest to Decedent 12 JAHMAL DERRICK STEWART, 13 Plaintiff, ORDER 14 v. 15 COUNTY OF YUBA, a municipal corporation; TAMARA PECSI, 16 individually and in her official capacity as a deputy sheriff for the Yuba County 17 Sheriff’s Department; SCOTT JOHANNES, individually and in his 18 official capacity as a deputy sheriff for the Yuba County Sheriff’s Department; and 19 DOES 1–50, inclusive, individually and in their official capacity as agents for the 20 Yuba County Sheriff’s Department, 21 Defendants. 22 23 This matter is before the Court on Plaintiff James Stewart’s (“Plaintiff”) Ex Parte 24 Application to Modify the Scheduling Order. (ECF No. 27.) Defendants County of Yuba 25 (“County”), Tamara Pecsi (“Deputy Pecsi” or “Pecsi”), and Scott Johannes (“Deputy Johannes” 26 or “Johannes”) (collectively, “Defendants”) filed an opposition (ECF No. 29), and Plaintiffs filed 27 a supplemental declaration in support of their Application (ECF No. 30). For the reasons set forth 28 herein, Plaintiff’s Application is DENIED. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On January 14, 2019, Decedent Jahmal Derrick Stewart (“Decedent”), a transient man, 3 was approached by Deputy Johannes regarding an assault Decedent was suspected of being 4 involved in earlier that day. (ECF No. 19 at 5.) Plaintiff alleges it was readily apparent Decedent 5 was in the midst of a medical crisis at that time. (Id.) Johannes purportedly confronted Decedent 6 aggressively and a physical altercation ensued between Johannes and Decedent. (Id.) During the 7 altercation, Decedent reached for Johannes’s service weapon, but never succeeded in removing it 8 from Johannes’s holster. (Id.) Nevertheless, Johannes screamed: “he has my gun!” (Id. at 6.) 9 According to Defendants, a split second after Deputy Pesci heard Johannes state “he has my gun,” 10 she heard a gunshot. (See ECF No. 29 at 3.) At some point, Pecsi ran towards the scene with her 11 service weapon drawn. (ECF No. 19 at 5–6.) Believing Johannes was losing a fight with 12 Decedent, Pecsi shot and killed Decedent. (Id. at 6; ECF No. 29 at 3.) 13 On September 3, 2019, Plaintiff initiated this action against the County, asserting claims 14 arising from the fatal police shooting of Decedent. (ECF No. 1.) The Court issued its initial 15 Pretrial Scheduling Order on September 4, 2019. (ECF No. 3.) In relevant part, the Pretrial 16 Scheduling Order set the following deadlines: (1) the deadline to file amended pleadings or add 17 parties was 60 days from service of the complaint; (2) the discovery deadline was 240 days from 18 the date upon which the last answer may be filed with the Court; (3) the expert witness discovery 19 deadline was 60 days after the close of discovery; and (4) the dispositive motion deadline was 20 180 days after the close of discovery. (See id. at 2–4.) 21 On February 21, 2020, the parties submitted a stipulation to permit Plaintiff to file a First 22 Amended Complaint (“FAC”) to add Pesci, who was identified through the parties’ initial 23 disclosures as the deputy who discharged her service weapon against Decedent. (ECF No. 9.) 24 The Court adopted the stipulation on February 24, 2020. (ECF No. 10.) 25 On November 16, 2020, the parties submitted a stipulation to permit Plaintiff to file a 26 Second Amended Complaint (“SAC”) to add Johannes, who was identified as an integral 27 participant in the death of Decedent upon review of Defendants’ investigatory records and the 28 deposition of Johannes. (ECF No. 17.) While stipulating to add Johannes as a defendant, the 1 parties also expressly stipulated to the caveat that the Court’s current Pretrial Scheduling Order 2 would not be impacted and Plaintiff would not be given another opportunity to depose Johannes.1 3 (Id. at 2–3.) The Court adopted this stipulation on November 16, 2020. (ECF No. 18.) 4 According to the parties, discovery closed on November 18, 2020. (See ECF No. 27 at 11; ECF 5 No. 29 at 3.) 6 On February 18, 2021, Plaintiff filed the instant Ex Parte Application, seeking to modify 7 the Pretrial Scheduling Order to reopen discovery. (ECF No. 27.) Specifically, Plaintiff seeks to 8 modify the discovery cutoff date from November 18, 2020 to April 19, 2021, and the dispositive 9 motion deadline from May 17, 2021 to July 19, 2021. (Id. at 11.) Defendants oppose the 10 Application. (ECF No. 29.) 11 II. STANDARD OF LAW 12 A. Ex Parte Relief 13 In general, the Court will not grant ex parte relief unless “the moving party’s cause will be 14 irreparably prejudiced if the underlying motion is heard according to regular noticed motion 15 procedures” and “the moving party is without fault in creating the crisis that requires ex parte 16 relief, or . . . the crisis occurred as a result of excusable neglect.” Mission Power Eng’g Co. v. 17 Continental Cas. Co. (Mission Power), 883 F. Supp. 488, 492 (C.D. Cal. 1995); see also Erichsen 18 v. Cty. of Orange, 677 F. App’x 379, 380 (9th Cir. 2017) (affirming determination that moving 19 parties failed to meet the “threshold requirement” for ex parte relief because “they did not 20 establish they were ‘without fault in creating the crisis that requires ex parte relief’”). 21 /// 22 /// 23 1 The parties never filed a joint status report specifying any proposed deadlines for the 24 Court’s Pretrial Scheduling Order, nor did they identify the dates referenced in their stipulation (see ECF No. 17 ¶ 8). Applying the timeline set forth in the Court’s Initial Pretrial Scheduling 25 Order (ECF No. 3) to March 23, 2020, the date Defendants answered the FAC (ECF No. 16), the discovery cut-off deadline would be November 18, 2020, and the dispositive motion deadline 26 would be May 17, 2021. These dates appear to be confirmed, albeit circuitously, in Plaintiff’s Ex 27 Parte Application (see ECF No. 27 at 11), where they are mentioned for the first time in any of the parties’ filings. Nonetheless, in adopting the parties’ stipulation (ECF No. 18), the Court also 28 approved the incorporation of these deadlines into its Pretrial Scheduling Order. 1 B. Modification of Scheduling Order 2 Under Federal Rule of Civil Procedure (“Rule”) 16, the Court is required to issue a 3 scheduling order as soon as practicable, and the order “must limit the time to join other parties, 4 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). Once a 5 scheduling order has been filed pursuant to Rule 16, the “schedule may be modified only for good 6 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 7 “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking 8 amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). A court 9 may modify the schedule “if it cannot reasonably be met despite the diligence of the party seeking 10 the extension.” Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing 11 Johnson, 975 F.2d at 609). However, “carelessness is not compatible with a finding of diligence 12 and offers no reason for a grant of relief.” Johnson, 975 F.2d at 609 (compiling cases). Thus, if 13 the party seeking the modification “was not diligent, the inquiry should end.” Id. 14 III.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES STEWART, individually and as No. 2:19-cv-01744-TLN-DB Successor in Interest to Decedent 12 JAHMAL DERRICK STEWART, 13 Plaintiff, ORDER 14 v. 15 COUNTY OF YUBA, a municipal corporation; TAMARA PECSI, 16 individually and in her official capacity as a deputy sheriff for the Yuba County 17 Sheriff’s Department; SCOTT JOHANNES, individually and in his 18 official capacity as a deputy sheriff for the Yuba County Sheriff’s Department; and 19 DOES 1–50, inclusive, individually and in their official capacity as agents for the 20 Yuba County Sheriff’s Department, 21 Defendants. 22 23 This matter is before the Court on Plaintiff James Stewart’s (“Plaintiff”) Ex Parte 24 Application to Modify the Scheduling Order. (ECF No. 27.) Defendants County of Yuba 25 (“County”), Tamara Pecsi (“Deputy Pecsi” or “Pecsi”), and Scott Johannes (“Deputy Johannes” 26 or “Johannes”) (collectively, “Defendants”) filed an opposition (ECF No. 29), and Plaintiffs filed 27 a supplemental declaration in support of their Application (ECF No. 30). For the reasons set forth 28 herein, Plaintiff’s Application is DENIED. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On January 14, 2019, Decedent Jahmal Derrick Stewart (“Decedent”), a transient man, 3 was approached by Deputy Johannes regarding an assault Decedent was suspected of being 4 involved in earlier that day. (ECF No. 19 at 5.) Plaintiff alleges it was readily apparent Decedent 5 was in the midst of a medical crisis at that time. (Id.) Johannes purportedly confronted Decedent 6 aggressively and a physical altercation ensued between Johannes and Decedent. (Id.) During the 7 altercation, Decedent reached for Johannes’s service weapon, but never succeeded in removing it 8 from Johannes’s holster. (Id.) Nevertheless, Johannes screamed: “he has my gun!” (Id. at 6.) 9 According to Defendants, a split second after Deputy Pesci heard Johannes state “he has my gun,” 10 she heard a gunshot. (See ECF No. 29 at 3.) At some point, Pecsi ran towards the scene with her 11 service weapon drawn. (ECF No. 19 at 5–6.) Believing Johannes was losing a fight with 12 Decedent, Pecsi shot and killed Decedent. (Id. at 6; ECF No. 29 at 3.) 13 On September 3, 2019, Plaintiff initiated this action against the County, asserting claims 14 arising from the fatal police shooting of Decedent. (ECF No. 1.) The Court issued its initial 15 Pretrial Scheduling Order on September 4, 2019. (ECF No. 3.) In relevant part, the Pretrial 16 Scheduling Order set the following deadlines: (1) the deadline to file amended pleadings or add 17 parties was 60 days from service of the complaint; (2) the discovery deadline was 240 days from 18 the date upon which the last answer may be filed with the Court; (3) the expert witness discovery 19 deadline was 60 days after the close of discovery; and (4) the dispositive motion deadline was 20 180 days after the close of discovery. (See id. at 2–4.) 21 On February 21, 2020, the parties submitted a stipulation to permit Plaintiff to file a First 22 Amended Complaint (“FAC”) to add Pesci, who was identified through the parties’ initial 23 disclosures as the deputy who discharged her service weapon against Decedent. (ECF No. 9.) 24 The Court adopted the stipulation on February 24, 2020. (ECF No. 10.) 25 On November 16, 2020, the parties submitted a stipulation to permit Plaintiff to file a 26 Second Amended Complaint (“SAC”) to add Johannes, who was identified as an integral 27 participant in the death of Decedent upon review of Defendants’ investigatory records and the 28 deposition of Johannes. (ECF No. 17.) While stipulating to add Johannes as a defendant, the 1 parties also expressly stipulated to the caveat that the Court’s current Pretrial Scheduling Order 2 would not be impacted and Plaintiff would not be given another opportunity to depose Johannes.1 3 (Id. at 2–3.) The Court adopted this stipulation on November 16, 2020. (ECF No. 18.) 4 According to the parties, discovery closed on November 18, 2020. (See ECF No. 27 at 11; ECF 5 No. 29 at 3.) 6 On February 18, 2021, Plaintiff filed the instant Ex Parte Application, seeking to modify 7 the Pretrial Scheduling Order to reopen discovery. (ECF No. 27.) Specifically, Plaintiff seeks to 8 modify the discovery cutoff date from November 18, 2020 to April 19, 2021, and the dispositive 9 motion deadline from May 17, 2021 to July 19, 2021. (Id. at 11.) Defendants oppose the 10 Application. (ECF No. 29.) 11 II. STANDARD OF LAW 12 A. Ex Parte Relief 13 In general, the Court will not grant ex parte relief unless “the moving party’s cause will be 14 irreparably prejudiced if the underlying motion is heard according to regular noticed motion 15 procedures” and “the moving party is without fault in creating the crisis that requires ex parte 16 relief, or . . . the crisis occurred as a result of excusable neglect.” Mission Power Eng’g Co. v. 17 Continental Cas. Co. (Mission Power), 883 F. Supp. 488, 492 (C.D. Cal. 1995); see also Erichsen 18 v. Cty. of Orange, 677 F. App’x 379, 380 (9th Cir. 2017) (affirming determination that moving 19 parties failed to meet the “threshold requirement” for ex parte relief because “they did not 20 establish they were ‘without fault in creating the crisis that requires ex parte relief’”). 21 /// 22 /// 23 1 The parties never filed a joint status report specifying any proposed deadlines for the 24 Court’s Pretrial Scheduling Order, nor did they identify the dates referenced in their stipulation (see ECF No. 17 ¶ 8). Applying the timeline set forth in the Court’s Initial Pretrial Scheduling 25 Order (ECF No. 3) to March 23, 2020, the date Defendants answered the FAC (ECF No. 16), the discovery cut-off deadline would be November 18, 2020, and the dispositive motion deadline 26 would be May 17, 2021. These dates appear to be confirmed, albeit circuitously, in Plaintiff’s Ex 27 Parte Application (see ECF No. 27 at 11), where they are mentioned for the first time in any of the parties’ filings. Nonetheless, in adopting the parties’ stipulation (ECF No. 18), the Court also 28 approved the incorporation of these deadlines into its Pretrial Scheduling Order. 1 B. Modification of Scheduling Order 2 Under Federal Rule of Civil Procedure (“Rule”) 16, the Court is required to issue a 3 scheduling order as soon as practicable, and the order “must limit the time to join other parties, 4 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). Once a 5 scheduling order has been filed pursuant to Rule 16, the “schedule may be modified only for good 6 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 7 “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking 8 amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). A court 9 may modify the schedule “if it cannot reasonably be met despite the diligence of the party seeking 10 the extension.” Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing 11 Johnson, 975 F.2d at 609). However, “carelessness is not compatible with a finding of diligence 12 and offers no reason for a grant of relief.” Johnson, 975 F.2d at 609 (compiling cases). Thus, if 13 the party seeking the modification “was not diligent, the inquiry should end.” Id. 14 III. ANALYSIS 15 In the instant Application, Plaintiff seeks to modify the Pretrial Scheduling Order to 16 reopen discovery for the “limited” purpose of obtaining discovery related to Johannes’s 17 “unauthorized modifications of his safety holster (with the intent to utilize it to draw his firearm 18 quicker), and potential modification of the trigger pull on his department issued firearm (with the 19 intent to fire said weapon quicker).” (ECF No. 27 at 1–2.) However, Plaintiff has not satisfied 20 the requirements to bring this Application ex parte. Mission Power, 883 F. Supp. at 492; 21 Erichsen, 677 F. App’x at 380. 22 As to the first requirement, Plaintiff argues he will be irreparably prejudiced if discovery 23 is not reopened because the modification of Johannes’ service weapon “factors heavily” into 24 Defendants’ theory of defense and “is crucial to Plaintiff’s case.” (ECF No. 27 at 6.) But apart 25 from these conclusory assertions, Plaintiff fails to explain or provide any evidence demonstrating 26 how the issue of Johannes’s modified service weapon and holster is relevant to the instant case. 27 Indeed, this issue appears largely tangential where Plaintiff’s own expert maintains his opinion 28 that Decedent never pulled Johannes’s gun out of the holster, and where Pecsi — not Johannes — 1 is the officer that shot and killed Decedent. (See ECF No. 29 at 7.) As such, reopening discovery 2 to permit Plaintiff to pursue nine broad areas of inquiry purportedly related to this matter, 3 including multiple depositions of new persons most knowledgeable (“PMKs”) and a second 4 deposition of Johannes, does not appear to be warranted.2 Rather, to permit such discovery seems 5 unfairly prejudicial to Defendants, who would not only bear the entire burden of production, but 6 would also be denied the benefit of their prior stipulation. (See ECF No. 17 at 2–3 (permitting 7 Plaintiff to file a SAC to add Johannes as a defendant, with the express caveat that the Pretrial 8 Scheduling Order deadlines would remain intact and Plaintiff would not seek to depose Johannes 9 a second time)); see also Johnson, 975 F.2d at 609 (on motion to modify the schedule, the 10 existence or degree of prejudice to the party opposing the modification might supply additional 11 reasons to deny a motion). 12 As to the second requirement, Plaintiff argues he is without fault in creating the crisis that 13 required ex parte relief — or alternatively, committed excusable neglect — because he did not 14 realize Johannes’s holster and firearm had been modified until after February 3, 2021, when 15 Defendants provided photographs of the holster and firearm to Plaintiff, and Plaintiff’s police 16 practices expert was able to recognize the modification from review of the photographs and so 17 inform Plaintiff. (ECF No. 27 at 6, 8.) Moreover, Plaintiff claims Defendants purposely withheld 18 this evidence until well after the discovery deadline had passed, despite it being implicated in 19 Plaintiff’s original discovery requests. (Id. at 7–8.) 20 In opposition, Defendants produce evidence that depicts a different timeline of events. 21 Plaintiff’s counsel initially contacted Defense counsel to coordinate an inspection of the gun and
22 2 Specifically, Plaintiff states he intends to seek additional fact discovery related to: “1) the 23 physical inspection of Defendant Scott Johannes’ Gun and Holster; 2) the forensic lab written reports on Defendant Scott Johannes’ Gun and Holster; 3) a deposition of lab technician(s) that 24 physically inspected Defendant Scott Johannes’ Gun and Holster; 4) a second deposition of Deputy Scott Johannes concerning said issues; 5) the deposition(s) of the PMK(s) regarding 25 training and the authorized equipment on deputy duty belts as well as the required periodic inspections by supervisors; 6) a deposition of the Sheriff regarding how, when and why duty 26 holsters are selected, authorized, inspected and provided to patrol deputies; 7) a List of all [Yuba 27 County Sheriff’s Department] authorized holsters; 8) all administrative memorandums regardless of any file number affixed regarding this incident; 9) Entire file (including interviews of Deputy 28 Johannes regarding the alterations of his holster and the alleged ‘crack’[]).” (ECF No. 27 at 2). 1 holster for Plaintiff’s expert on October 16, 2020, one month prior to the November 18, 2020 2 discovery deadline. (ECF No. 29 at 3; ECF No. 29-1 at 2, 8.) On October 21, 2020, Defense 3 counsel replied that Defendants were working on how to coordinate an inspection of the gun and 4 holster in evidence. (ECF No. 29 at 3; ECF No. 29-1 at 2, 7–8.) Plaintiff’s counsel replied two 5 days later that he would serve a subpoena “shortly.” (ECF No. 29 at 3–4; ECF No. 29-1 at 2, 7.) 6 In response, Defense counsel informed Plaintiff’s counsel that the gun and holster could not be 7 mailed to Plaintiff’s expert due to chain of evidence purposes, but indicated “the County is fairly 8 flexible on dates” for Plaintiff’s expert to inspect the gun and holster at the Sherriff’s Department 9 and asked Plaintiff’s counsel to provide dates of the expert’s availability to coordinate a visit. 10 (ECF No. 29 at 4; ECF No. 29-1 at 2–3, 6–7.) Thereafter, Defendants maintain that “[b]etween 11 October 23, 2020 and February 1, 2021, Plaintiff’s counsel never issued a subpoena for inspection 12 of the gun and holster, never followed up with dates his expert was available to inspect [the gun 13 and holster at the Sheriff’s Department, and] never sent another email or phone call to [Defense 14 counsel requesting] to inspect the gun and holster or to coordinate a time for inspection prior to 15 discovery closing on November 18, 2020.” (ECF No. 29 at 4; ECF No. 29-1 at 3.) Instead, on 16 February 1, 2021 — two and a half months after the close of discovery — Plaintiff’s counsel 17 emailed Defense counsel to revisit the issue of inspecting the holster and requested photographs 18 of the gun and holster. (ECF No. 29 at 4; ECF No. 29-1 at 3, 6.) Thus, Defendants did not 19 provide the photographs until February 3, 2021, because Plaintiff did not request them until 20 February 1, 2021. (See id.) 21 Defendants also dispute Plaintiff’s accusation that they withheld evidence during 22 discovery by failing to produce the photos with their original responses. Defendants maintain 23 they provided “the entire investigation file into the officer involved shooting, totaling 815 pages” 24 of documents to Plaintiff in response to his discovery requests on February 28, 2020. (ECF No. 25 29 at 3 (emphasis in original); ECF No. 29-1 at 2.) The photos Defendants provided to Plaintiff 26 on February 3, 2021 did not exist during the officer-involved shooting investigation and did not 27 exist during fact discovery. (ECF No. 29 at 4; ECF No. 29-1 at 3.) Rather, in response to a 28 request for photos that Plaintiff submitted to Defendants on February 1, 2021, the Yuba County 1 Sheriff’s Department took approximately 52 photographs of the holster and gun between 2 February 1–3, 2021, and provided those photos as a good faith gesture to Plaintiff on February 3, 3 2021. (Id.) 4 The Court finds Defendants have the better argument. Plaintiff provides no justification 5 for his failure to make an appointment to inspect Johannes’s gun and holster in October 2020, nor 6 does he offer any explanation for failing to revisit the issue until February 1, 2021, over two 7 months after discovery closed.3 Moreover, the Court finds Plaintiff’s assertion that he did not 8 realize he required discovery on the issue of Johannes’s gun and holster until February 3, 2021, is 9 belied by the fact that Plaintiff first requested to inspect the gun and holster in October 2020. In 10 light of this record, the Court cannot conclude Plaintiff was without fault in creating the need to 11 appear ex parte. Erichsen, 677 F. App’x at 380. For these reasons, Plaintiff has not satisfied the 12 threshold requirements to bring this Application ex parte. Mission Power, 883 F. Supp. at 492; 13 Erichsen, 677 F. App’x at 380. 14 Furthermore, for the same reasons discussed herein, the Court finds Plaintiff fails to 15 demonstrate he acted with the requisite diligence to obtain the requested discovery prior to the 16 discovery cutoff date. Johnson, 975 F.2d at 609; Zivkovic, 302 F.3d at 1087. Therefore, even if 17 the Court permitted Plaintiff to bring this Application ex parte, Plaintiff cannot establish good 18 cause to modify the Pretrial Scheduling Order pursuant to Rule 16. See id. 19 IV. CONCLUSION 20 For the reasons set forth above, the Court hereby DENIES Plaintiff’s Ex Parte 21 Application to Modify the Scheduling Order. (ECF No. 27.) The previously identified discovery 22 and dispositive motions deadlines remain intact. The Court will set dates for trial and the pretrial 23 /// 24 /// 25 ///
27 3 Also inexplicable is the delay in time between February 28, 2020, when Defendants produced their investigation file, and January 18, 2021, when Plaintiff’s expert first requested 28 photos of Johannes’ holster based on review of the file. (See ECF No. 27-2 at 2.) 1 | conference upon expiration of the dispositive motion deadline or upon resolution of any > dispositive motion, whichever occurs later. 4 IT IS SO ORDERED. DATED: March 8, 2021 5 /) f J 7 “\ MN fo Vika 8 Troy L. Nuhlep ] United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28