1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOBY BROUHARD, Case No.: 22-cv-1578-AJB-KSC

12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION [Doc. No. 23] 14 THE GEO GROUP, INC., 15 Defendant. 16 17 The parties’ joint motion to amend the Scheduling Order is presently before the 18 Court. See Doc. No. 23. The parties have asked to reopen fact discovery (which closed on 19 July 14, 2023) until August 28, 2023. See id. They state the reopened fact discovery 20 window is necessary to secure plaintiff’s deposition and the deposition of a 30(b)(6) 21 witness. Id. A scheduling order may not be modified without a showing of good cause. 22 Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the diligence of 23 the part[ies] seeking amendment.” Johnson v. Mammoth Recreations,

, 609 24 (9th Cir. 1992). Carelessness is not a substitute for good cause and does not generally 25 warrant relief. See

26 Discovery in this case has been open since the parties had their Rule 26(f) 27 conference. However, the plaintiff’s deposition, which is obviously central to a case like 28 this, was inexplicably set for after the fact discovery cutoff, rather than during the many 1 months of fact discovery. See Doc. No. 23-1 ¶ 12. The court reminds the parties that 2 depositions and other discovery may not be taken after the fact discovery cutoff without 3 leave of court. See Rakhra v. PHW Las Vegas, LLC, 2:12-cv-1287-JAD-PAL,

99302,

, at * (D. Nev. Jan. 3 2014); Accord Prodox, LLC v. Prof’l 5 Doc. Servs.,

, 686 n.12 (D. Nev. 2022); Linksmart Wireless Tech. v. Gogo, 6 Inc., 8:18-cv-654-JAK (JDEx),

,

, at *8- 7 13 (C.D. Cal. Mar. 25, 2021). Then, after setting the deposition after the fact discovery 8 cutoff without leave of court, defendant cancelled the deposition, apparently without any 9 plans to secure the testimony. Doc. No. 23-1 ¶ 24. 10 A scheduling order “is not a frivolous piece of paper, idly entered into, which can 11 be cavalierly disregarded without peril.” Johnson, 975 F.3d at 610. Assuming the Court 12 would grant leave to take plaintiff’s deposition late was not a safe assumption. On facts 13 like these, the Court would be within the bounds of its discretion to deny the request to 14 reopen discovery for plaintiff’s deposition. See Thompson v. Corelogic Rental Prop. Sols., 15 LLC, 21-cv-1716-GPC-WVG,

,

(S.D. 16 Cal. Oct. 13, 2022). 17 Even so, counsel for defendant identifies some hardships at play here. There are 18 allusions to a “critically ill parent.” See Doc. No. 23-1 ¶ 23. Counsel’s supporting 19 declaration also suggests there are procedural hardships imposed by plaintiff’s status as an 20 out-of-state probationer. Id. ¶ 26. Finally, fact discovery must be reopened in this matter 21 because defendant must testify under Rule 30(b)(6), which would have happened within 22 the time limits set by the operative Scheduling Order if defendant had not failed to prepare 23 a witness as required by the applicable discovery rules. See id. ¶ 20. The Court finally notes 24 the Joint Motion is not opposed by either party in any part. Accordingly, the Court will err 25 on the side of caution and the Joint Motion will be GRANTED in full. Fact discovery is 26 reopened in this matter for the limited purposes of taking plaintiff’s deposition and a 27 30(b)(6) deposition of defendant. 28 1 The Court notes the deadline for initial expert disclosures has already come and 2 || gone, and this case has moved into the expert phase of discovery. See Doc. No. 20 at 1-2. 3 || The parties do not have the luxury of making ad hoc expert “supplements” if they have 4 ||ignored these deadlines. See generally Martinez v. Costco Wholesale Corp.,

|| 183 (S.D. Cal. 2020). The Court assumes and expects the parties have not missed these 6 deadlines. Absent exceptional circumstances, the failure to secure timely fact discovery 7 || will not be good cause to extend the expert discovery deadlines in this case, and the parties 8 || are directed to conduct expert discovery with diligence so discovery in this case concludes 9 ||timely and the case is prepared for trial. 10 IT IS SO ORDERED 11 || Dated: July 25, 2023 Jl. Lan) 12 Mian □□ 13 Hori. Karen 8S. Crawford United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28