United States District Court, D. Hawaii
MARK N. BEGLEY, Plaintiff,
COUNTY OF KAUAI, KAUAI POLICE DEPARTMENT, DARRYL PERRY, ROY ASHER, MICHAEL CONTRADES AND DOE DEFENDANTS 16-100, Defendants.
ORDER DENYING DEFENDANT CONTRADES'S MOTION TO
AMEND RULE 16 SCHEDULING ORDER AND DENYING THE COUNTY
DEFENDANTS' JOINDER OF SIMPLE AGREEMENT
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
March 22, 2019, Defendant Michael Contrades
(“Contrades”), in his individual capacity, filed
his Motion to Amend Rule 16 Scheduling Order
(“Motion”). [Dkt. no. 531.] On March 25, 2019,
Defendants County of Kauai (“the County”); Kauai
Police Department (“KPD”); Darryl Perry
(“Perry”), in his official capacity; and
Contrades, in his official capacity (collectively,
“County Defendants”), filed a joinder of simple
agreement in the Motion (“Joinder”). [Dkt. no.
533.] Plaintiff Mark N. Begley (“Plaintiff”)
filed his memorandum in opposition on April 8, 2019, and
Contrades filed his reply on April 22, 2019. [Dkt. nos. 541,
551.] The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local
Rules of Practice for the United States District Court for
the District of Hawaii (“Local Rules”).
Contrades's Motion and the County Defendants' Joinder
are hereby denied for the reasons set forth below.
filed his original Complaint on June 27, 2016, and he filed
his First Amended Complaint on May 5, 2017. [Dkt. nos. 1,
103.] Plaintiff filed his Second Amended Complaint on
February 15, 2018. [Dkt. no. 201.] The operative pleading is
Plaintiff's Third Amended Complaint, filed on August 31,
2018. [Dkt. no. 349.]
to the filing of the Third Amended Complaint, trial was
scheduled to begin on November 20, 2018, and the dispositive
motions deadline was June 20, 2018. [Second Amended Rule 16
Scheduling Order, filed 4/23/18 (dkt. no. 277), at
¶¶ 1, 7.] On June 20, 2018, Perry, in his
individual capacity, filed his Motion for Summary Judgment
(“Perry Motion”). [Dkt. no. 311.] On June 27,
2018, the County Defendants filed a substantive joinder in
the Perry Motion (“County Joinder”). [Dkt. no.
the filing of the Third Amended Complaint, the trial date was
subsequently continued to May 6, 2019. [Amended Rule 16
Scheduling Order, filed 9/10/18 (dkt. no. 355)
(“9/10/18 Scheduling Order”), at ¶ 1.] The
9/10/18 Scheduling Order specifically stated:
“Dispositive motions shall be filed by December
4, 2018. Only Dispositive Motions as to the Emotional
Distress Claims may be filed.” [Id.
at ¶ 7 (emphasis in original).] It also stated the
non-dispositive motions deadline was February 6, 2019.
[Id. at ¶ 6.]
Perry Motion and the County Joinder were construed as
addressing the Third Amended Complaint because: the Second
Amended Complaint and the Third Amended Complaint allege the
same claims; and “the changes between the Second
Amended Complaint and the Third Amended Complaint involved
Plaintiff's claims against Contrades, in his individual
capacity, which [we]re not at issue in the Perry Motion and
the County Joinder, and the timeliness of the [intentional
infliction of emotional distress] claim.” [Summary
Judgment Order; etc., filed 4/11/19 (dkt. no. 549)
(“4/11/19 Summary Judgment Order”), at
The Perry Motion was denied in its entirety, and the County
Joinder was granted in part and denied in part. 4/11/19
Summary Judgment Order, 2019 WL 1590568, at *21. This Court,
inter alia, stated it could not rule on: Perry's
qualified/conditional privilege defense on summary judgment;
id. at *14; or the County Defendants' qualified
immunity defense to Plaintiff's federal retaliation
claim,  id. at *17. The 4/11/19 Summary
Judgment Order also stayed the portions of Plaintiffs'
remaining state law claims based on acts related to the
County's Return to Work Program (“RTWP”) and
directed the parties to submit letter briefs addressing
whether the stayed claims can be severed or whether the
entire case must be stayed. Id. at *21. The parties
submitted their letter briefs on April 26, 2019, [dkt. nos.
553 to 556, ] and the issue is still pending before this
September 14, 2018, Contrades filed a motion to dismiss the
Third Amended Complaint (“Motion to Dismiss”).
[Dkt. no. 360.] This Court denied the Motion to Dismiss in an
order filed on December 27, 2018 (“12/27/18 Dismissal
Order”). [Dkt. no. 434. On January 10, 2019, Contrades
filed a motion for reconsideration of the 12/27/18 Dismissal
Order (“Motion for Reconsideration”), which this
Court denied in an order filed on March 7, 2019
(“3/7/19 Reconsideration Order”). [Dkt. no.
April 1, 2019, Contrades filed a notice of appeal from this
Court's ruling that he was not entitled to dismissal of
Plaintiff's claims based on qualified/conditional
privilege.[Dkt. no. 535.] The Court directed the
parties to submit letter briefs addressing the effect of
Contrades's appeal. [EO, filed 4/4/19 (dkt. no. 538).]
The parties submitted their letter briefs on April 9, 2019,
[dkt. nos. 543 to 546, ] and the Court held a status
conference on April 12, 2019, [Minutes, filed 4/12/19 (dkt.
no. 550)]. However, this Court ultimately determined that
Contrades's appeal does not require a stay of the case.
February 14, 2019, Perry, in his individual capacity, moved
to continue the May 6, 2019 trial date, in light of his
recovery from injuries that he sustained in a serious
accident. [Dkt. no. 473.] The motion was granted, and the
trial was continued to August 26, 2019. [Minutes, filed
3/14/19 (dkt. no. 523); Amended Rule 16 Scheduling Order,
filed 3/18/19 (dkt. no. 527) (“3/18/19 Scheduling
Order”), at ¶ 1.] The 3/18/19 Scheduling Order
noted that both the non-dispositive motions deadline and the
dispositive motions deadline were closed. [Id. at
filed the instant Motion after the filing of the 3/18/19
Scheduling Order. He seeks an amendment of the 3/18/19
Scheduling Order to allow him to file a motion for summary
judgment. Contrades contends there is good cause for the
amendment because: the 3/7/19 Reconsideration Order
contemplated his filing of a motion for summary judgment; and
previously unavailable testimony from Plaintiff and his
treating physician demonstrates that Contrades did not act
with malice nor animus toward Plaintiff, and Contrades was
acting within the authority and discretion of his position
Civ. P. 16(b)(4) states that a court's scheduling order
“may be modified only for good cause and with the
judge's consent.” This district court has stated:
The Rule 16(b) good cause inquiry focuses on the diligence of
the party seeking to modify the scheduling order.
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002). The pretrial schedule may be modified if the
deadline could not have been reasonably met despite the
diligence of the party seeking the extension. Id.
(citing Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 609 (9th Cir. 1992)) (internal quotation marks and
. . . Rule 16 is designed to prevent parties from benefitting
from carelessness, unreasonability, or gamesmanship. In
re Cathode Ray Tube Antitrust Litigation, 2014 WL
4954634, *2 (N.D. Cal. Oct. 1, 2014) (citing Orozco v.
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