1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LENA CHILDS; DONALD CHILDS; T. Case No.: 19-CV-2329-JM-SBC CHILDS, a Minor, by and through Her 12 Guardian Ad Litem, Lena Childs; and A. ORDER ON JOINT STIPULATION 13 CHILDS, a Minor, by and through Her TO EXTEND EXPERT DISCOVERY Guardian Ad Litem, Lena Childs, DEADLINES 14 Plaintiffs, 15 v. 16 SAN DIEGO FAMILY HOUSING, LLC; 17 LINCOLN MILITARY PROPERTY 18 MANAGEMENT, L.P.; IN DEPTH CORPORATION; and DOES 1 through 19 25, inclusive, 20 Defendants. 21

22 Before the Court is the Parties’ August 18, 2023, Joint Stipulation to Extend Expert 23 Discovery Deadlines (“Joint Motion”). (Doc. No. 118.) The Parties move the Court to 24 continue three operative deadlines, namely the (1) September 4, 2023, deadline to designate 25 rebuttal experts; (2) the September 4, 2023, deadline to serve rebuttal expert disclosures; 26 and (4) the October 13, 2023, expert discovery cutoff. The Parties explain a two-week 27 continuance of the September 4, 2023, deadlines and a one-week continuance of the 28 1 October 13, 2023, deadline are necessary due to the unavailability of counsel for Defendant 2 InDepth Corporation (“InDepth”). InDepth explains its counsel will be on a pre-paid 3 vacation “with little to no access to emails” between the weeks of August 28, 2023, and 4 September 11, 2023, and thus requires additional time to engage in expert discovery. (Id., 5 4:8-11.) 6 Rule 16(b) of the Federal Rules of Civil Procedure (“Rule 16(b)” or “the Rule”) 7 controls the Court’s inquiry here. The Rule provides “a district court's scheduling order 8 may be modified upon a showing of ‘good cause.’” Noyes v. Kelly Servs.,

, 9 1174 n.6 (9th Cir. 2007) (citing Fed. R. Civ. P. 16(b)(4) and Johnson v. Mammoth 10 Recreations, Inc.,

(9th Cir. 1992)); Doe Run Res. Corp. v. Hartford 11 Accident & Indem. Co.,

, at *2 (S.D. Cal. June 22, 2021). “[The] focus 12 of the inquiry is upon the moving party's reasons for seeking modification ... If that party 13 was not diligent, the inquiry should end.” Martinez v. Costco Wholesale Corp.,

183, 187 (S.D. Cal. July 22, 2020) (citing Johnson,

and Jackson v. 15 Laureate, Inc.,

(E.D. Cal. June 16, 1999).). “Good cause may be found 16 where the moving party shows it assisted the court with creating a workable scheduling 17 order, that it is unable to comply with the scheduling order's deadlines due to matters not 18 reasonably foreseeable at the time the scheduling order issued, and that it was diligent in 19 seeking a modification once it became apparent it could not comply with the scheduling 20 order.” Sharp v. Covenant Care LLC,

(S.D. Cal. Sept. 21, 2012) (citing 21 Jackson,

); Fed. R. Civ. P. 16, Advisory Committee's Notes (1983 22 Amendment); Fid. Nat. Fin., Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa,

(S.D. Cal. July 24, 2015) (same). 24 Good cause does not underlie the Parties’ Joint Motion here. As a foundational 25 matter, the Joint Motion is silent on what expert discovery efforts the Parties have made to 26 date in an effort to meet the operative deadlines. Such silence undercuts the Parties’ 27 showing of diligence per Rule 16(b), particularly when considering that formerly presiding 28 Magistrate Judge David D. Leshner granted the Parties an additional (1) six weeks to 1 engage in fact discovery; (2) two weeks to designate initial experts and serve initial expert 2 reports; and (3) four weeks to designate rebuttal experts and serve rebuttal expert reports 3 pursuant to the Amended Scheduling Order Regulating Discovery and Other Pre-Trial 4 Conferences (“Amended Scheduling Order”). (Doc. No. 108.) 5 Moreover, InDepth’s counsel has been aware of the operative expert discovery 6 deadlines since May 16, 2023, when the Amended Scheduling Order issued. (Id.) Although 7 the Joint Motion does not reveal when InDepth’s counsel finalized her vacation plans, 8 InDepth served its Notice of Unavailability of Counsel on August 1, 2023, nearly three 9 months following the Amended Scheduling Order’s issuance. Thus, InDepth cannot 10 contend in good faith that the reason necessitating its instant continuance requests was 11 unforeseeable. Equally notable, the Court does not find good cause to further continue 12 expert discovery deadlines in light of “the pending determination in InDepth’s Application 13 for Determination of Good Faith Settlement” (“Application”) by presiding District Judge 14 Jeffrey Miller. (Id., 4:19-21.) InDepth’s filing of any potentially dispositive motion does 15 not relieve it from its ongoing duty to meet the demands of the operative Amended 16 Scheduling Order. 17 Given the foregoing circumstances, the Court finds the Parties have not met their 18 burden under Rule 16(b) to establish their diligence in meeting the existing expert 19 discovery deadlines. As noted, in such cases where diligence is not shown, the Court’s 20 “inquiry should end.” Adinolfi by & through Adinolfi v. Omni La Costa Resort & Spa LLC, 21

, at *2 (S.D. Cal. May 28, 2019) (citing Fed. R. Civ. P. 16 and Johnson, 22

.). Moreover, the continuances Judge Leshner granted have afforded the 23 Parties ample time to meet their expert discovery obligations, and the time to do so has not 24 yet expired. Accordingly, the Court DENIES the Parties’ Joint Stipulation to Extend Expert 25 Discovery Deadlines and ORDERS the Parties to comply with all operative deadlines in 26 this matter, including, but not limited to, the September 4, 2023, deadlines to designate 27 / / / 28 / / / 1 |/rebuttal experts and serve rebuttal expert disclosures and the October 13, 2023, expert 2 || discovery cutoff. 3 IT IS SO ORDERED. 4 || Dated: August 22, 2023 : YF A.

7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28