It is quite common that, for a variety of reasons, the parties to a case wish to extend discovery and accomplish it via stipulation. When no agreement is reached, a motion is necessary. Among other requirements, the motion must demonstrate a good cause reason to extend discovery. EDCR 2.35(a) (“Stipulations or motions to extend any date set by the discovery scheduling order must be in writing and supported by a showing of good cause for the extension…”); LR 26-4 “Applications to extend any date set by the discovery plan, scheduling order, or other order must … be supported by a showing of good cause for the extension.”). As a practical matter, this typically is a relatively low burden to meet. Occasionally, however, it is not met and causes problems for the moving party.
In Derosa v. Blood Sys., 2013 U.S. Dist. LEXIS 108235, 2013 WL 3975764 (D. Nev. 2013) the plaintiff filed an emergency motion to extend on July 25, 2013. The deadline to amend pleadings had expired on May 2, 2013; the initial expert disclosure deadline expired on May 31; the rebuttal expert disclosure deadline on July 1; and discovery was set to close on July 31. The court explained the law governing this type of motion.
“A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril. The district court’s decision to honor the terms of its binding scheduling order does not simply exalt procedural technicalities over the merits of [the parties’] case. Disregard of the order would undermine the court’s ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (internal citation and quotations omitted).
A motion to extend deadlines in the Court’s scheduling order must be supported by a showing of “good cause” for the extension. Local Rule 26-4; see also Johnson, 975 F.2d at 608-09. The good cause inquiry focuses primarily on the movant’s diligence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000). Good cause to extend a discovery deadline exists “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 609. While prejudice to the opposing party may also be considered, where the movant “fail[s] to show diligence, ‘the inquiry should end.'” Coleman, 232 F.3d at 1295 (quoting Johnson, 975 F.2d at 609). The Court has broad discretion in supervising the pretrial phase of litigation. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).
In addition, requests to extend a discovery deadline filed less than 21 days before the expiration of that particular deadline must be supported by a showing of excusable neglect. See Local Rule 26-4. 2 The Ninth Circuit has held that “the determination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993)).
The court then applied this law and denied plaintiff’s motion in only two, painfully straightforward paragraphs.
It is clear that Plaintiff has not been diligently conducting discovery. The only discovery completed by Plaintiff to date is serving initial disclosures and supplemental disclosures, as well as responding to two discovery requests from Defendant. See Mot. at 10 (listing discovery completed). Plaintiff candidly explains the situation by stating that attorneys at the law firm representing her were not diligent in pursuing discovery. See, e.g., Reply at 5 (acknowledging “shortcomings caused by a lack of diligence from [the firm’s] prior attorney’s lack of work”). Having reviewed the materials submitted, the Court finds that Plaintiff has not shown the diligence required for a finding of “good cause.” This ends the Court’s inquiry into whether an extension should be granted. See Coleman, 232 F.3d at 1295.
Plaintiff attempts to avoid this conclusion by asserting that “good cause” exists because Plaintiff herself should not be prejudiced by the failings of her attorneys. See Reply at 4-5. The Ninth Circuit has repeatedly rejected that contention. See, e.g., Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1387 (9th Cir. 1988) (“There is certainly no merit to the contention that dismissal of [a party’s] claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. [The party] voluntarily chose this attorney as his representative in this action, and he cannot now avoid the consequence of the acts or omissions of this freely selected agent.” (quoting Link v. Wabash RR Co., 370 U.S. 626, 633-34, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962)).
Ouch. The last paragraph is especially notable. I frequently encounter this excuse and am just as frequently frustrated when it works in state courts. Apparently the excuse is less likely to work in federal courts.