Cartessa Aesthetics LLC v. Aesthetics Biomedical Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Cartessa Aesthetics LLC, No. CV-19-05827-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Aesthetics Biomedical Incorporated,

13 Defendant. 14 15 Pending before the Court is an expedited motion by Defendant Aesthetics 16 Biomedical, Inc. (“ABM”) to amend the scheduling order by extending all non-expired 17 deadlines by 90 days. (Doc. 90.)1 Plaintiff Cartessa Aesthetics, LLC (“Cartessa”) opposes 18 ABM’s request for a 90-day extension, makes an affirmative request for permission to 19 conduct 16 depositions, and asks for a four-week extension so it can complete all of its 20 desired depositions. (Doc. 96.) In reply, ABM doesn’t oppose Cartessa’s request to 21 conduct 16 depositions but argues that it, too, should be allowed to conduct 16 depositions. 22 (Doc. 98.) 23 ABM’s extension request is governed by Rule 16(b)(4) of the Federal Rules of Civil 24 Procedure, which provides that the dates set forth in a scheduling order “may be modified 25 only for good cause and with the judge’s consent.” This “good cause” standard “primarily 26 considers the diligence of the party seeking the amendment . . . . [C]arelessness is not 27 compatible with a finding of diligence and offers no reason for a grant of relief . . . . If that

28 1 ABM’s motion also included a request to “vacate the currently set depositions” (Doc. 90 at 6) but ABM withdrew that request in its reply (Doc. 98 at 2). 1 party was not diligent, the inquiry should end.” Johnson v. Mammoth Recreations, Inc., 2 975 F.2d 604, 607-09 (9th Cir. 1992). 3 Here, many of the reasons set forth in ABM’s motion do not constitute “good cause” 4 for an extension. For example, although it’s true that the parties’ recent filing of amended 5 pleadings has expanded the scope of this litigation, ABM consented to those amendments 6 (even though they occurred after the amendment deadline set forth in the scheduling order). 7 Because ABM consented to the very situation it now finds itself in, the existence of that 8 situation hardly qualifies as good cause to modify the scheduling order. Cf. Morgal v. 9 Maricopa Cty. Bd. of Sup’rs, 284 F.R.D. 452, 460 (D. Ariz. 2012) (under Rule 16(b)(4), 10 the party seeking amendment must show that noncompliance will occur “because of the 11 development of matters which could not have been reasonably foreseen or anticipated”). 12 Nor does “good cause” arise from Cartessa’s filing of a motion to dismiss some of ABM’s 13 new counterclaims. It would be one thing if Cartessa were seeking an extension of the 14 existing deadlines in light of the pending motion to dismiss. It is quite another for a party 15 that has asserted affirmative claims for relief, and that presumably believes those claims 16 will survive dismissal, to argue the case should be stayed or extended until the dismissal 17 motion is resolved. 18 If the inquiry were limited to the arguments set forth in ABM’s motion, the presence 19 or absence of “good cause” would present a very close call. Nevertheless, the playing field 20 has shifted in light of Cartessa’s request to conduct 16 depositions (which the Court will 21 grant, both for the reasons provided in Cartessa’s brief and based on the fact that the request 22 is unopposed by ABM). There isn’t enough time to complete all of those depositions 23 between now and the discovery cutoff. The Court also concludes that, in fairness, ABM 24 should be allowed to conduct 16 depositions, too. It would be unreasonable to expect the 25 parties to complete all of the newly authorized depositions in the modest four-week 26 window proposed by Cartessa. 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that ABM’s expedited motion to amend the scheduling order 3|| (Doc. 90) is granted. All non-expired deadlines in the scheduling order are extended by 90 days. 5 IT IS FURTHER ORDERED that Cartessa’s request for permission to conduct 16 || depositions (Doc. 96) and ABM’s request for permission to conduct 16 depositions (Doc. 7\| 98) are granted. 8 Dated this 13th day of November, 2020. 9 ° I "Dominic W. Lanza 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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