Sekerke v. Olsen

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH WAYNE SEKERKE, Case No.: 20cv1045-JO(RBB)

12 Plaintiff, ORDER DENYING EX PARTE 13 v. APPLICATION TO EXTEND EXPERT REPORT DISCLOSURE 14 DANE OLSEN, etc., et al., DEADLINE [ECF NO. 47] 15 Defendants. 16 17 Presently before the Court is Defendant Lt. Adam Arkwright’s Ex Parte 18 Application to Extend Expert Report Disclosure Deadline [ECF No. 47]. The motion, 19 which was filed on January 3, 2023, seeks an extension of the expert disclosure deadline 20 from January 6, 2023, to January 27, 2023. For the reasons set forth below, Defendant’s 21 application is DENIED. 22 A. Legal Standards 23 The scheduling order may be modified only for good cause and with the judge's 24 consent. Fed. R. Civ. P. 16(b)(4). The good cause standard under Rule 16(b) “primarily 25 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 26 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “Although the existence or degree 27 of prejudice to the party opposing the modification might supply additional reasons to 28 deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking 1 modification.” Id.; see also C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 2 975, 984 (9th Cir. 2011). “Deadlines are not options.” See J.K.G. v. County of San 3 Diego, Civil No. 11cv0305 JLS(RBB), 2012 U.S. Dist. LEXIS 126195, at *4 (S.D. Cal. 4 Sept. 5, 2012). 5 B. Discussion 6 Arkwright contends that the requested extension of the expert disclosure deadline 7 is needed because he received, on December 19, 2022, “voluminous medical records” 8 totaling 2,585 pages in response to a subpoena issued to Valley State Prison. (Ex Parte 9 App. 1, ECF No. 47.) He states that in light of the holidays and volume of the records, 10 this did not provide sufficient time for his experts to review and incorporate the records 11 into their Federal Rule of Civil Procedure 26 expert disclosures by the January 6, 2023 12 deadline. (Id.) Arkwright asserts that the California Department of Corrections and 13 Rehabilitation (“CDCR”), which operates the prison, will not provide unredacted medical 14 and psychological records without an authorization, which Defendant claims was not 15 timely provided by Plaintiff. (Id. at 2.) This explanation, however, is not supported by a 16 sworn declaration or affidavit. Moreover, even if a declaration or affidavit had been 17 provided, Arkwright’s timeline does not establish that he proceeded with diligence. He 18 does not describe when he learned that the CDCR would not release the records without 19 an authorization, nor does he explain how long Plaintiff delayed in providing a release. If 20 Sekerke’s delay hindered the progress of discovery, Defendant could have filed a motion 21 to compel Plaintiff to provide an authorization. Arkwright also fails to state when he 22 provided the release to the CDCR. Again, if delay by the CDCR in producing records 23 impeded discovery, he could have filed a motion to enforce the subpoena and a motion to 24 extend deadlines. Instead, he waited until three days before the expert disclosure deadline 25 to file an ex parte application seeking to extend the deadline. 26 [M]erely showing that trial is fast approaching and that the opposing party still has not answered crucial interrogatories is insufficient to justify ex parte 27 relief. The moving party must also show that is used the entire discovery 28 period efficiently and could not have, with due diligence, sought to obtain l that discovery earlier in the discovery period. As Judge Rymer warned, ‘Ex parte applications are not intended to save the day for parties who have failed to present requests when they should have...’ Mission Power Eng’g Co. v. Cont’] Cas.Co., 883 F. Supp. 488, 493 (C.D. Cal. 1995) 5 (citing In re Intermagnetics Am., Inc., 101 Bankr. 191, 193 (C.D. Cal. 1989)). 6 C. Conclusion 7 If the party seeking modification of the scheduling order “was not diligent, the g inquiry should end” and the motion to modify should not be granted. Johnson, 975 F.2d 9 at 609. Defendant’s unsupported ex parte application does not represent diligent work. 10 Further, Arkwright has not established that he acted with diligence in obtaining records 1 from Valley State Prison during the discovery period and thus cannot show that the 12 || expert disclosure deadline cannot be met despite his diligence. Accordingly, Defendant’s B Ex Parte Application [ECF No. 47] is DENIED. 14 IT ISSO ORDERED. 15 6 Dated: January 4, 2023 Drdunr Arevba— 17 Hon. Ruben B. Brooks 8 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28