Free Motion to Continue - District Court of California - California

Case 3:07-cv-02205-DMS-CAB

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Filed 07/01/2008

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THOMAS R. GILL, ESQ. CSBN 061267 THE GILL GROUP, A.P.C. 6046 Cornerstone Ct. W., Suite 161 San Diego, California 92121 Tel: (619) 286-9393 Fax: (858) 695-1947 Attorney for Plaintiff GLEN R. HAGEN

UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE EXPERT DESIGNATION AND RELATED DATES 07 CV 2205 DMS (CAB)

GLEN R. HAGEN, Plaintiff, v. NCR CORPORATION, Defendant.

Case No.: 07 CV 2205 DMS (CAB) PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE EXPERT DESIGNATION AND RELATED DATES [FRCP 26(a)(2)(C)] Date: Time: Judge:

Hon. Cathy Ann Bencivengo

Trial Date: May 9, 2009, 9:00 a.m.

Plaintiff, GLEN R. HAGEN, hereby applies for an Order to continue the date currently set for the first designation of experts, from June 17, 2008, to not earlier than August 18, 2008. Plaintiff also respectfully requests new dates be set respecting the follow up expert reports, now set for September 12, 2008. // // // // // // // // // // // //

Case 3:07-cv-02205-DMS-CAB

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INTRODUCTION The undersigned, on June 20, 2008, began seeking a stipulation with Miles Scully, Esq., lead defense counsel, to effect an extension of dates to designate experts. Mr. Scully has recently indicated Defendant has "no interest in changing the dates". Thus this ex parte application.

NO PRIOR REQUESTS FOR CONTINUANCE OR EXTENSION There has been no prior request for a continuance or extension of any date set forth in the Case Management Conference Order dated March 19, 2008.

REASONS Plaintiff could not meet the June 17th deadline for two main reasons. (Please see attached AFFIDAVIT OF THOMAS R. GILL, ESQ., IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE EXPERT DESIGNATION AND RELATED DATES, which is here incorporated by reference as though set forth in full.) The parties' counsel have discussed and agreed a central issue in this matter is whether or not Plaintiff was able, based upon his medical condition, to perform the essential functions of his position at the time of his termination, March 10, 2006. The determination of this question necessarily involves a forensic medical expert capable of making such an assessment. No prejudice has been indicated nor does the undersigned foresee any prejudice that could accrue to Defendant should the expert designation date be extended. Exclusion of expert testimony as a sanction for a violation of a discovery order rests in the Court's sound discretion. The Court is required to consider: (1) the explanation, if any, for the party's failure to comply with the discovery order; (2) the prejudice to the opposing party of allowing the witnesses to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the importance of the witness' testimony. (emphasis original) [Barret v. Atlantic Richfield Co. (5th Cir. 1996) 95 F3d 375, 380] See Schwarzer, Tashima & Wagstaffe, CAL. PRAC. GUIDE: FED. CIV. PRO. BEFORE TRIAL, at 11:453 (The Rutter Group 2006).
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Case 3:07-cv-02205-DMS-CAB

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This application is based on the AFFIDAVIT OF THOMAS R. GILL, ESQ., filed concurrently herewith, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing, if any, on the application.

Respectfully submitted, THE GILL GROUP, A.P.C. Dated: July 1, 2008 By: s/ Thomas R. Gill, Esq. 1 THOMAS R. GILL, ESQ. Attorney for Plaintiff GLEN R. HAGEN CARMEN J. HAGEN, Guardian ad litem Email: [email protected]

3 PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE EXPERT DESIGNATION AND RELATED DATES 07 CV 2205 DMS (CAB)