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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

TRISHA CLOWER,

NO. CIV. S 04-0042 MCE PAN

Plaintiff,

v. ORDER

SUPERIOR COURT OF CALIFORNIA, 

COUNTY OF SACRAMENTO; 

RON SMITH; and 

DOES I through XX,

Defendants.

----oo0oo----

On April 14, 2004, the Court issued a pretrial scheduling

order (“Scheduling Order”), which established January 28, 2005,

as the close of non-expert discovery. On December 20, 2004, once

all of the parties had arrived, one or both of the parties

terminated the deposition of defendant Ron Smith (“Smith”). 

(Reply at 4:10; Opp’n 1:12-13.) On January 4, 2005, Defendants

informed Plaintiff that they would not again produce Smith as a

deponent unless Plaintiff compensated them for the cost of the

deposition aborted on December 20, 2004. (Pl’s Mot at 4:4-8;

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2

Opp’n at 2:23-4:7.) On March 17, 2005, Plaintiff filed a motion

to modify the Court’s Scheduling Order and to compel the

deposition of Ron Smith. Plaintiff states that her “motion to

compel could not be filed and heard prior to the January 28,

2005, discovery deadline . . . Based on pending settlement

discussions between the parties, Plaintiff did not file this

motion immediately.” (Pl’s Mot. at 7:18-21.) 

Under the Federal Rules of Civil Procedures, the Court’s

Scheduling Order “shall not be modified except upon a showing of

good cause and by leave of the district judge . . .” Fed R. Civ.

P 16(b) (hereinafter “Rule 16(b)”). The “good cause” standard of

Rule 16(b) primarily considers the diligence of the party seeking

amendment. Johnson v. Mammoth Recreations, 975 F.2d 604, 609

(9th Cir. 1992) (“the focus of the inquiry is upon the moving

party’s reasons for seeking modification . . . if that party was

not diligent, the inquiry should end.”) (citations omitted).

“A scheduling order is not a frivolous piece of paper, idly

entered, which can be cavalierly disregarded by counsel without

peril.” Id. at 610. Here, Plaintiff was aware of a potential

discovery dispute involving a key witness approximately one month

prior to the close of discovery. Nevertheless, Plaintiff waited

until almost two months after the close of discovery to bring

this issue to the attention of the Court. 

Plaintiff has offered only two reasons for the delay: 1) the

conclusive assertion that the present motion could not be filed

and heard prior to January 28, 2005, and 2) the motion was

delayed by settlement negotiations. (Pl’s Mot. at 7:18-21.) The

Court finds both of these reasons to be of little merit.

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1 This matter was deemed suitable for decision without oral

argument. Local Rule 78-230(h).

3

Plaintiff was free to notify the Court of problems surrounding

the Smith deposition and seek relief from the Scheduling Order at

that time. Further, the fact that settlement negotiations were

ongoing does not negate the Scheduling Order. As such, the Court

finds that Plaintiff has failed to demonstrate the requisite good

cause to modify the Scheduling Order. 

Plaintiff’s motion to modify the Scheduling Order in order

to extend the discovery deadline is hereby DENIED. Consequently,

Plaintiff’s motion to compel the discovery of Ron Smith is also

DENIED.1 All requests for sanctions are DENIED.

IT IS SO ORDERED.

DATED: May 12, 2005.

__________________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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