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1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAFAR AFSHAR,

NO. CIV. S-04-1088 LKK/JFM

Plaintiff,

v.

O R D E R

CITY OF SACRAMENTO; SACRAMENTO

POLICE DEPARTMENT; COUNTY OF

SACRAMENTO; SACRAMENTO COUNTY

SHERIFF’S DEPARTMENT; and SHERIFF

LOU BLANAS, individually and in his

official capacity as Sheriff of the

Sacramento County Sheriff’s Department,

Defendants.

 /

Pending before the court are two motions: defendants’ motion

to strike plaintiff’s supplemental disclosures and plaintiff’s

motion to amend the scheduling order to reopen discovery. For the

reasons set forth herein, the court grants the motion to amend and

denies the motion to strike.

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1

 The parties are aware of the relevant underlying facts of

the case and therefore, the court need not repeat the facts here.

2

 These witnesses are: Joseph Brann, Beverly Stein and Tom

Melton. According to plaintiff, Brann and Stein coauthored the

“Sheriff’s Department Assessment Final Report February 2006."

Melton, it appears, was a County employee, “who after 15 years on

the force, made an admission against the County that “slapping”

inmates was condoned.” Pl.’s Mot. to Amend at 6:2-4. 

3

 These documents are: (1) “Sheriff’s Department Assessment

Final Report February 2006 prepared by Joseph Brann & Associates,

LLC the Public Strategies Group, Inc. and attachments thereto (2),

the Sheriff’s letter to Terry Shutten the County exec, regarding

staffing problems at RCCC and overtime; (3) all audio and video

released by the Sheriff’s Department to the public, and published

by the Sacramento Bee, found at . . . [web address provided].”

Notice of Disclosure at 1:28-2:7.

2

I.

PROCEDURAL BACKGROUND1

The parties are both well aware of the motion practice in this

case. Most recently, the court denied in part and granted in part

cross-motions for summary judgment. Plaintiff’s only remaining

claim is a Monell claim against the County defendants.

Although the scheduling order specified that discovery was to

be completed by September 4, 2005, plaintiff filed a notice of

supplemental disclosures on April 12, 2006. Specifically,

plaintiff sought notice of the following “newly discovered

evidence”: (1) a supplemental report by previously designated

plaintiff expert, Timothy G. Twomey; (2) three additional expert

witnesses;2 (3) additional documents (which are in possession of

defendants) on which the new experts and Twomey would rely;3 and

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4

 These additional witnesses are Sgt. Donald Black and Sgt.

Craig Hill. 

3

(4) two additional lay witnesses.4

 

On April 20, 2006, defendants filed a motion to strike the

supplemental disclosures. Defendants maintained that the

disclosures clearly violated the scheduling order and that

plaintiff never filed a motion to amend the scheduling order.

On May 16, 2006, plaintiff filed a motion to amend the

scheduling order to re-open discovery as to the newly discovered

evidence. 

II.

STANDARDS

Because the court has filed a pretrial scheduling order,

Federal Rule of Civil Procedure 16 governs the procedure for

amending the pleadings. Rule 16 provides in part: 

(b) [The district court] . . . shall, after consulting

with the attorneys for the parties and any unrepresented

parties, by a scheduling conference, . . . enter a

scheduling order that limits the time, (1) to join other

parties and to amend the pleadings; (2) to file and hear

motions; and (3) to complete discovery. 

Fed. R. Civ. P. 16(b) (2005); Johnson v. Mammoth Recreations, Inc.,

975 F.3d 604 (9th Cir. 1992). 

Unlike Rule 15(a)'s liberal amendment policy which focuses on

the bad faith of the party seeking to interpose an amendment and

the prejudice to the opposing party, Rule 16(b)'s "good cause"

standard primarily considers the diligence of the party seeking the

amendment. The district court may modify the pretrial schedule "if

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4

it cannot reasonably be met despite the diligence of the party

seeking the extension." Fed. R. Civ. P. 16 Advisory Committee's

Notes (1983 amendment); Harrison Beverage Co. v. Dribeck Importers,

Inc., 133 F.R.D. 463, 469 (D.N.J. 1990); Amcast Indus. Corp. v.

Detrex Corp., 132 F.R.D. 213, 217 (N.D. Ind. 1990); 6A Wright,

Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d

ed. 1990) ("good cause" means scheduling deadlines cannot be met

despite party's diligence). 

Moreover, carelessness is not compatible with a finding of

diligence and offers no reason for a grant of relief. Cf. Engleson

v. Burlington Northern R.R. Co., 972 F.2d 1038, 1043 (9th Cir.

1992) (carelessness not a ground for relief under Rule 60(b));

Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th

Cir. 1971) (same), cert. denied, 405 U.S. 974 (1972). Although the

existence or degree of prejudice to the party opposing the

modification might supply additional reasons to deny a motion, the

focus of the inquiry is upon the moving party's reasons for seeking

modification. See Gestetner Corp. v. Case Equip. Co., 108 F.R.D.

138, 141 (D.Me. 1985). If the moving party was not diligent, the

inquiry should end.

III.

ANALYSIS

A. DILIGENCE

In interpreting the "good cause" requirement under Fed. R.

Civ. P 16(b), the court considers, primarily, "the diligence of the

party seeking the amendment." Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). In the case at bar, it

appears that plaintiff was diligent.

Plaintiff seeks to reopen discovery so that he may obtain

certain documents that are in possession of the defendants and that

were not in existence at the time of discovery. It also appears

that plaintiff seeks to depose several people whose names were not

known to plaintiff prior to the close of discovery. Plaintiff’s

counsel maintains that he learned of these documents and people

after reading articles in the Sacramento Bee. These articles

appeared in spring of 2006, well after the close of discovery.

Specifically, plaintiff cites to the following Sacramento Bee

articles:

(1) February 23, 2006: Article discussed a special audit of

the Sacramento County Jail conducted by Joseph Brann and Beverly

Stein. The article noted that the audit would not be released to

the public until June of 2006. 

(2) Follow up articles post-February 23, 2006: After the

article on the Audit, follow up articles mentioned the following

people: Joseph Brann, Beverly Stein, Sgt. Donald Black, and Sgt.

Craig Hill.

(3) March 8, 2006: Article discussed a letter written by

Sheriff Lou Blanas to Terry Shutten, the County Executive, in which

Blanas states that the RCCC was a powder keg waiting to explode due

to staffing shortages. 

(4) April 9, 2006: Article revealed that deputy Tom Melton

was placed on administrative leave for allegedly striking a

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handcuffed inmate. Melton told the Sacramento Bee reporter that

violence against inmates was condoned at the jail.

These articles all reflect ongoing investigations into

problems at the County jail. These investigations may lead to

relevant evidence regarding plaintiff’s Monell claim, specifically,

whether there is a pattern and practice of jail officials using

excessive force against inmates. 

These investigations were not known to the public until after

the close of discovery. Plaintiff, therefor, had no way of knowing

to request these documents or request to depose these people. 

Given that the new names and documents were not known to plaintiff

until recently, the discovery deadline could not “reasonably be met

despite the diligence of the party seeking the extension." Fed.

R. Civ. P. 16 Advisory Committee's Notes (1983 amendment). 

Plaintiff filed the motion to amend soon after he read the articles

in the Sacramento Bee. For this reason, the court finds that

plaintiff was diligent.

B. POTENTIAL PREJUDICE TO DEFENDANTS 

 As a secondary consideration, the court considers the degree

of prejudice to the opposing party if the scheduling order were

amended. Johnson, 975 F.2d at 609. 

Defendants maintain that if discovery is reopened, trial will

be delayed and defendants will need to find experts of their own

to rebut whatever plaintiff’s expert may conclude. 

Given that the information plaintiff seeks is in the

possession of defendants, turning over certain documents and

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5

 The court cautions plaintiff that it will not entertain a

motion to re-open discovery after the close of the discovery

deadline set in this order. 

7

arranging the depositions of certain jail employees does not seem

prejudicial to defendants. Moreover, no trial date has been set.

The only date that would be disturbed should discovery be reopened

is the date for the Pretrial Conference (currently scheduled for

July 10, 2006). For these reasons, the court finds that the

prejudice to defendants is minimal and the motion to amend must be

granted.5

Given that the court is re-opening discovery on a limited

basis, the motion to strike is moot and must be denied.

For the forgoing reasons, the court orders as follows:

1. Defendants’ motion to strike is DENIED.

2. Plaintiff’s motion to amend the scheduling order is

GRANTED.

3. All dates heretofore set are VACATED and the following

dates are SET:

a. Exchange and filing of expert reports: October 13, 2006;

b. Discovery cut off: December 12, 2006;

c. All discovery motions to be set on the magistrate judge’s

calendar to be heard not later than November 13, 2006;

d. Law and Motion cut off: March 12, 2007;

e. Pretrial Conference: June 11, 2007 at 2:00 p.m. 

f. Trial: September 11, 2007 at 10:30 a.m. in Courtroom No.

4. 

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The trial will be before a jury and the parties estimate in

good faith that the trial will last approximately ten (10) days.

IT IS SO ORDERED. 

 DATED: June 13, 2006.

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