The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S MOTION TO AMEND SCHEDULING ORDER (Docket No. 95) TO DESIGNATE SUBSTITUTE EXPERT WITNESS (Docket No. 99) PLAINTIFF'S MOTION FOR LEAVE
Currently pending before the Court are (1) Defendant's Motion to Amend Scheduling Order (Docket No. 95), and (2) Plaintiff's Motion for Leave to Designate Substitute Expert Witness (Docket No. 99). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
Relevant to the at-issue motions, on or around August 6, 2012, Plaintiff moved to vacate the August 27, 2012 trial date due to the unexpected death of his insurance claims-handling expert witness, William Walker. See Pl.'s Mot. to Vacate and Continue Trial (Docket No. 88). Defendant did not oppose Plaintiff's motion (see Def.'s Not. of Joinder (Docket No. 89) and, on August 14, 2012, this Court vacated the August 27, 2012 trial date. See 8/14/12 DEO (Docket No. 90). Following an August 20, 2012 status conference (see 8/20/12 Minute Entry (Docket No. 93), the Court ordered (1) Plaintiff to identify and disclose his replacement expert opinion on or before September 24, 2012, (2) Defendant to identify and disclose its responsive expert opinion on or before October 19, 2012, and (3) Plaintiff to identify and disclose his rebuttal expert opinion on or before October 29, 2012. See 8/20/12 Order Re-Setting Trial (Docket No. 92). Plaintiff thereafter identified and disclosed Kevin K. Dawson as his replacement expert witness for the late Mr. Walker.
On October 29, 2012, Defendant moved to amend the scheduling order to allow it to file another motion for summary judgment. See Def.'s Mot. to Am. Sched. Order (Docket No. 85). According to Defendant, Mr. Dawson's expert opinion provided a new, previously unavailing, basis for summary judgment. See Mem. in Supp. of Def.'s Mot. to Am. Sched. Order, p. 2 (Docket No. 95, Att. 1) ("Among other opinions, Mr. Dawson stated that the denial under the Equipment Breakdown coverage was proper, and identified only damages under the contract for insurance. His only issue is with the denial of coverage, not the claim handling. In light of such changes in the course of the litigation, Defendant . . . requests . . . that the Court grant amendment of the scheduling order to allow argument on a motion for summary judgment.").
On November 5, 2012, Plaintiff indicated that he "ha[d] no objection to the amendment of the Scheduling Order as requested by the Defendant in order to permit coverage issues to be determined on summary judgment prior to trial." See Pl.'s Resp. to Def.'s Mot. to Am. Sched. Order, p. 1 (Docket No. 98). However, on the same date, Plaintiff also moved for leave to designate a substitute expert witness to take the place of his currently-designated expert witness, Mr. Dawson. See Pl.'s Mot. for Leave to Designate Substitute Expert Witness (Docket No. 99). According to Plaintiff, "[t]he reason for this request is that Mr. Dawson, who prepared the report which is the focus of the Defendant's proposed Motion for Summary Judgment and who was retained following the unfortunate death of Mr. Walker, abandoned this case after preparing his initial report on September 24,  and without producing the rebuttal to the Defendant's expert's report which would be essential to the Plaintiff's defense of the proposed [Motion for Summary Judgment]." See Mem. in Supp. of Pl.'s Mot. for Leave to Designate Substitute Expert Witness, p. 2 (Docket No. 99, Att. 1).
District courts have broad discretion in supervising the pretrial phase of litigation. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). Once a district court has issued its scheduling order, FRCP 16 sets the standard for modifying the schedule. That standard requires "good cause with the judge's consent" to modify a scheduling order. See Fed. R. Civ. P. 16(b)(4). FRCP 16(b)'s good cause standard primarily considers the diligence of the party seeking the amendment. See Johnson, 975 F.2d at 609 (citing Fed. R. Civ. P. 16 Advisory Committee's Note (1983)). Although the existence of prejudice to the party opposing the modification may supply reasons to deny a motion, "the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Id. Here, both motions seek to amend the Court's Scheduling Order -- Defendant seeks to extend the deadline for filing motions for summary judgment due to Mr. Dawson's recent expert opinions; Plaintiff essentially seeks an extension of time to disclose a third expert witness. Defendant has met the good cause standard. Plaintiff has not.
A. Defendant's Motion to Amend Scheduling Order (Docket No. 95)
As a result of the death of Mr. Walker and Plaintiff naming a replacement expert witness, the evidence in the record presented by the Plaintiff changed. That is, according to Defendant, Mr. Dawson's recent opinions "changed the course and scope of the case because certain factual questions no longer exist." See Mem. in Supp. of Def.'s Mot. to Am. Sched. Order, p. 2 (Docket No. 95, Att. 1). More precisely, Defendant contends that certain factual disputes no longer exist, because Plaintiff's new expert finds no fault as to certain matters, as to which Plaintiff's prior expert did find fault upon. Because (1) such revised circumstances only became known to Defendant after the dispositive motion deadline had passed, and (2) Defendant diligently sought leave to move for summary judgment based upon Mr. Dawson's opinions, good cause exists to grant a corresponding amendment to the Court's Scheduling Order.
In allowing Defendant to file another motion for summary judgment based upon this new evidence, the Court does not address the substantive arguments raised within Defendant's already-filed Motion for Summary Judgment. Plaintiff will have the opportunity to respond to such arguments, pursuant to the briefing schedule outlined below.
B. Plaintiff's Motion for Leave to Designate Substitute Expert Witness (Docket No. 99)
There is no question that, following Mr. Walker's death, Plaintiff's original request to extend the time to (re)disclose its insurance claims-handling expert met the good cause standard. However, the present request to name yet another expert is quite different.
Relevant here, Plaintiff's counsel argues that, despite his efforts to secure Mr. Dawson's expert report by September 9, 2012 (15 days before the September 24, 2012 deadline) and, later, by September 21, 2012 (4 days before the September 24, 2012 deadline), Mr. Dawson did not produce the report until September 24, 2012, "leaving [Plaintiff's counsel] with no option but to produce it . . . .," presumably without Plaintiff's or Plaintiff's counsel's full review and/or substantive input. See Schoppe Decl. at ¶¶ 4-7 (Docket No. 99, Att. 3). Rather than stipulate with Defendant's counsel to a brief extension or formally move this Court to extend the September 24, 2012 deadline, Plaintiff's counsel "planned to address any of the Defendant's challenges to [Mr. Dawson's] report in a rebuttal report and via deposition and/or trial testimony." See id. at ¶ 7. Such a ...