Opinion
No. CV-08-0276-PHX-LOA.
October 13, 2009
ORDER
This matter arises on yet another request to modify the March 17, 2009 Scheduling Order, docket # 81, and extend the deadlines to respond to certain pending issues. (docket # 142) Specifically, the parties' Stipulated Joint Motion requests leave of the Court to: "(a) Extend[] the deadline for Defendants/Counterclaimants to file their brief in objection to Plaintiff/Counterdefendant's Application for Attorneys' Fees from October 9, 2009 to October 15, 2009; (b) Extend[] the deadline for Defendants/Counterclaimants to respond to Plaintiff/Counterdefendant's Second Amended Complaint from October 9, 2009 to October 15, 2009; (c) Extend[] the deadline for Defendants/Counterclaimants to conduct a deposition of third-party witness, Sheila Hunter; and (d) Extending the deadline for Plaintiff/Counterdefendant to conduct a deposition of Defendants' Rebuttal Expert Witness, Linda Decker to October 19, 2009." ( Id. at 2) The Court will address each request separately.
I. Extension to file objection to Plaintiff's award to attorneys' fees
In ruling upon Plaintiff's motion for an order precluding Defendants' expert witness, Linda Decker, docket # 99, the Court awarded Plaintiff its reasonable attorneys' fees and ordered:
[P]laintiff shall timely file with the Clerk of the Court an Attorney's Fees Affidavit, consistent with LRCiv 54.2(d)(4) and (e), by Friday, September 18, 2009. Defendants may file Objections to Plaintiff's Affidavit by Friday, October 9, 2009. Plaintiff may file a Reply by Monday, October 19, 2009. Absent good cause shown, the failure to timely file the subject Affidavit or Objections may result in the summary denial or award of the requested attorneys' fees.Id. at 11. Plaintiff timely filed its Notice and Affidavit on August 21, 2009. (docket ## 100-101) The parties have stipulated that Defendants' deadline to file their objections to Plaintiff's Affidavit may be extended from October 9, 2009 to October 15, 2009. The October 8, 2009 Stipulated Motion indicates "there are five (5) depositions that remain to be taken in this case over the dates of October 8, October 9, October 12, October 13, and October 14." (docket # 142 at 2)
Since this responsive deadline is unrelated to the Rule 16 Scheduling Order and considering the high volume of last-minute depositions scheduled before the October 14, 2009 discovery deadline, the Court will grant this part of the Stipulated Motion.
II. Extension to respond to Plaintiff's Second Amended Complaint
Likewise, since this extension does not implicate the Rule 16 Scheduling Order, the Court will grant the parties' Stipulated Motion in this regard.
III. Extension to conduct deposition of Sheila Hunter
The discovery deadline in this case is, and has been since the Scheduling Order was agreed-upon by all counsel, October 14, 2009. (docket # 81 at 4) The Court has consistently refused several invitations to modify the March 17, 2009 Rule 16 Scheduling Order. Rule 16, Fed.R.Civ.P., and the Scheduling Order in this case make clear that "[c]ontinuances of these deadlines may be granted only upon a showing of good cause and by leave of the assigned trial judge." ( Id. at 2) The parties' Stipulated Joint Motion to extend the deadline for Defendants/Counterclaimants to conduct a deposition of third-party witness, Sheila Hunter, provides no reason, much less good cause, to extend the discovery deadline. Because the parties waited until the last minute, late-September and early to mid-October, to conduct the bulk of their deposition discovery does not constitute good cause to extend the discovery deadline. This aspect of the parties' Stipulated Motion will be denied.
IV. Extension to conduct deposition of Linda Decker
The Court's file reflects that on September 8, 2009, Plaintiff noticed Ms. Decker's deposition for September 25, 2009, nearly three weeks before the discovery deadline. (docket # 109) The Stipulated Joint Motion represents "Ms. Decker, Defendants' Rebuttal Expert Witness, was ill on the day of her deposition, and that [her] deposition had to be rescheduled. Ms. Decker is not available until October 19, 2009, due to travel and other commitments, and her deposition is scheduled for that day." (docket # 142 at 3)
While arguably it is foreseeable that an adverse witness may not be available due to illness and would not be available to be deposed before the deadline for discovery passes, the Court finds that Ms. Decker's illness, travel and other commitments are beyond the control of Plaintiff's counsel and constitute good cause to allow her deposition to be taken on or before, but no later than, October 19, 2009. This aspect of the parties' Stipulated Motion will be granted.
Accordingly,
IT IS ORDERED that the parties' Stipulated Joint Motion, docket # 142, is GRANTED in part and DENIED in part as follows:
a. Defendants shall file their objections to Plaintiff's Attorneys' Fees Affidavit on or before Thursday, October 15, 2009. Plaintiff's optional reply deadline is extended to Monday, October 26, 2009. Absent good cause shown, Defendants' failure to timely file their objections may result in the summary award of the requested attorneys' fees.
b. Defendants shall file their Answer or otherwise respond to Plaintiff's Second Amended Complaint on or before Thursday, October 15, 2009.
c. the Stipulated Joint Motion to extend the deadline for Defendants/Counterclaimants to conduct a deposition of third-party witness, Sheila Hunter, is DENIED.
d. the Stipulated Joint Motion to extend the deadline for Plaintiff to take the deposition of Defendants' Rebuttal Expert Witness, Linda Decker, is GRANTED. The Rule 16 Scheduling Order's deadline for completing discovery is hereby modified as to Ms. Decker only. Her deposition shall be taken on or before, but no later than, October 19, 2009. Defendants shall exercise their best efforts to ensure their expert witness, Linda Decker, remains available and cooperates with Plaintiff's counsel so her deposition may proceed and be completed as scheduled.