United States District Court, W.D. Washington, Seattle
GERALDINE BARABIN, as Personal Representative for the Estate of HENRY BARABIN, deceased, Plaintiff,
ASTENJOHNSON, INC., et al., Defendants.
ORDER DENYING MOTION FOR EXTENSION OF DISCOVERY
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Plaintiff Geraldine Barabin's motion to
extend the discovery cutoff date. (Mot. (Dkt. # 645).)
Defendants Scapa Dryer Fabrics, Inc. (“Scapa”)
and AstenJohnson Inc. (“AstenJohnson”) opposes
this extension. (Scapa Resp. (Dkt. # 646); AstenJohnson Resp.
(Dkt. # 647).) Having considered all submissions, the balance
of the record, and the applicable law, the court DENIES the
March 29, 2017, the court set a case schedule for this
retrial, with the discovery cutoff for November 26, 2017, the
dispositive motions deadline on December 22, 2017, and trial
commencing on March 26, 2018. (3/29/17 Order (Dkt. # 643).)
On September 15, 2017, Ms. Barabin disclosed to Defendant
AstenJohnson and Scapa (collectively,
“Defendants”) the witnesses she intended to call
at the retrial, including an expert witness, Dr. Carl
Brodkin, whom she had called to testify in the original
trial. (Mot. at 2; Good Decl. (Dkt. # 645-1) ¶¶
3-4.) Defendants indicated on September 20, 2017, that they
would like to depose all expert witnesses offered by Ms.
Barabin. (Mot. at 2; Good Decl. ¶ 11.) On September 26,
2017, Ms. Barabin contacted Dr. Brodkin to schedule a
deposition but learned that Dr. Brodkin was unavailable until
December 19, 2017. (Mot. at 2; Good Decl. ¶ 16.) Because
this date falls after the discovery deadline of November 26,
2017, Ms. Barabin filed the instant motion for extension of
the discovery deadline. (See generally Mot.)
Barabin argues that an extension is warranted because Dr.
Brodkin's preexisting commitments and unavailability
constitute the good cause required by Federal Rule of Civil
Procedure 16(b)(4) to modify the case schedule. (Mot. at 3);
see Fed. R. Civ. P. 16(b)(4). Scapa and AstenJohnson
respond that Ms. Barabin has not shown that Dr. Brodkin's
unavailability was unforeseeable, nor has Ms. Barabin shown
that she was diligent in ascertaining Dr. Brodkin's
availability. (Resp. at 2.)
schedule may be modified only for good cause and with the
judge's consent. Fed.R.Civ.P. 16(b)(4). Rule 16's
“good cause” standard primarily considers the
diligence of the party seeking the extension, and a case
schedule will only be modified “if it cannot reasonably
be met despite the diligence of the party seeking the
extension.” Fed.R.Civ.P. 16 advisory committee notes
(1983 amendment). The focus of this inquiry is on the moving
party's reasons for seeking modification. Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.
1992). “If that party was not diligent, the inquiry
should end.” Id. “[C]arelessness is not
compatible with a finding of diligence and offers no reason
for a grant of relief.” Id.
Ms. Barabin has not shown diligence. In the first trial, Dr.
Brodkin was both deposed by Defendants and called as a
witness; indeed, Ms. Barabin concedes that she understood Dr.
Brodkin to be “imperative” for the retrial. (Mot.
at 2.) Ms. Barabin thus knew, for the last few years since
the case was remanded for retrial, that Dr. Brodkin would
need to be made available. Moreover, she knew for the last
six months that the discovery deadline would be in November
of this year. (See 3/29/17 Order.) And yet, Ms.
Barabin did not ascertain Dr. Brodkin's availability
until the end of September. (See Good Decl.
¶¶ 15-16.) Dr. Brodkin's unavailability now
does not render Ms. Barabin's efforts-or lack thereof for
the many preceding months-diligent. Because Ms. Barabin was
not diligent in adhering to the trial schedule, the court
denies her request for an extension of the discovery
deadline. See Johnson, 975 F.2d at 609.
the court need not consider the existence or degree of
prejudice to Defendants, see id., the court observes
that pushing the discovery deadline to December 20, 2017, as
requested by Ms. Barabin would run into the dispositive
motions deadline on December 22, 2017. As Defendants state,
drafting a Daubert motion to address Dr.
Brodkin's testimony, or incorporating Dr. Brodkin's
testimony in a motion for summary judgment, would be
“impossible” in just two or three days. (Resp. at
Ms. Barabin has not established the required showing of
diligence, and because an extension of the discovery deadline
would affect the remainder of the trial schedule, the court
denies Ms. Barabin's motion for an
court DENIES Ms. Barabin's motion for an extension of the