Briana Leakas v. Monterey Bay Military Housing, LLC

Background

Briana Leakas and her minor son, D.L., through Theodore Leakas as D.L.’s guardian ad litem, brought a tort action for personal injuries they claim resulted from toxic mold contamination in the home they leased while living on the U.S. Army Garrison Presidio of Monterey. The court’s June 15, 2022 case management order set a December 19, 2023 hearing deadline for dispositive motions and motions challenging expert testimony under the rule commonly called Daubert. It also set a February 21, 2024 final pretrial conference and a jury trial beginning March 6, 2024.

Motion to Modify the Schedule

The defendants moved to modify the schedule so they could file Daubert motions after the November 14, 2023 filing deadline. They requested that the hearing deadline be extended by at least 35 days, to a date in late January 2024. The plaintiffs opposed the motion.

Federal Rule of Civil Procedure 16(b)(4) allows a scheduling order to be changed only for good cause and with the judge’s consent. The court explained that good cause primarily depends on the diligence of the party seeking the change. The court also noted that carelessness does not support a finding of diligence.

The defendants did not address Rule 16 or make the required showing of diligence. The court emphasized that the December 19 hearing deadline had been set about a year and a half earlier; that later orders specifically kept the Daubert hearing deadline unchanged; and that, at an August 8, 2023 discovery hearing, the court had told the parties it was not inclined to extend that deadline. The defendants characterized their failure to seek an extension as mistake or inadvertence.

The defendants also argued that plaintiffs’ experts were not available for deposition until December 4, leaving inadequate time to pursue Daubert motions. The court found that the defendants did not explain why they had apparently delayed scheduling those depositions. The plaintiffs’ counsel stated that defense counsel first requested deposition dates on November 15, one day after the filing deadline, and did not discuss Daubert motions with plaintiffs’ counsel until December 4. The court expressed no opinion on whether the proposed Daubert challenges were legally or factually valid.

Relief Allowed Despite Lack of Diligence

Although the court found that the defendants had not established the diligence required to modify the schedule, it nevertheless allowed them to file Daubert motions. The court relied on its obligation to ensure that scientific testimony offered to the jury is relevant and reliable, particularly because the plaintiffs intended to present expert testimony.

The court ordered the following schedule:

Expenses as a Sanction

The court stated that a scheduling order cannot be disregarded without consequences. Under Rule 16(f), a court may issue appropriate orders when a party or attorney fails to obey a scheduling or other pretrial order. The rule also generally requires payment of reasonable expenses, including attorney fees, caused by the noncompliance unless the noncompliance was substantially justified or an award would be unjust.

The court found that the defendants’ noncompliance was not substantially justified and that awarding expenses was not unjust. Because the failure resulted from defense counsel’s lack of diligence, the court stated that defense counsel alone should bear the expenses. The plaintiffs could seek recovery by filing an application documenting their reasonable expenses, including attorney fees, by January 5, 2024. The defendants’ response was limited to the amount requested, and the parties could instead submit a stipulation concerning the amount. If the plaintiffs did not file an application by the deadline, they would be deemed to have waived the request.