8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 MAHWISH CHOUDHRY, Case No. 1:21-cv-01287-JLT-SAB
12 Plaintiffs, ORDER DENYING PLAINTIFF’S MOTION TO DEEM PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT AS TIMELY FILED
14 TULARE COUNTY, et al., (ECF Nos. 67, 68, 69)
15 Defendants.
17 18 I. 19 INTRODUCTION 20 Dispositive motions were due in this matter on December 15, 2023. (ECF No. 57.) 21 Defendants timely filed motions for summary judgment. (ECF Nos. 16, 17.) On December 20, 22 2023, Plaintiff filed a motion for summary judgment. (ECF No. 66.) On the same date, Plaintiff 23 filed a motion to accept Plaintiff’s motion for summary judgment as timely filed (the “Motion”). 24 (ECF No. 67.) The motion was not set for hearing before a judge; however, the caption does 25 indicate the Motion was directed at the assigned Magistrate Judge. (Id. at 1.) 26 On December 21, 2023, the Court ordered Defendants to file a statement of opposition or 27 non-opposition to the Motion. (ECF No. 68.) On the same date, Defendants filed an opposition. For the reasons explained below, the Plaintiff’s Motion shall be denied. 1 II. 2 LEGAL STANDARD 3 Federal Rule of Civil Procedure 16(b) provides that the district court must issue a 4 scheduling order that limits “the time to join other parties, amend the pleadings, complete 5 discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). A scheduling order “may be modified 6 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 7 The “good cause” standard “primarily considers the diligence of the party seeking the 8 amendment,” and the Court “may modify the pretrial schedule if it cannot reasonably be met 9 despite the diligence of the party seeking the extension.” Johnson v. Mammoth Recreations, 10 Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal citation and quotations omitted). The prejudice 11 to parties opposing modification of the scheduling order, if any, may be grounds for denying the 12 motion, but the focus is on the moving party’s reason for seeking the modification. Id. 13 If the party seeking to amend the scheduling order fails to show due diligence, the inquiry 14 should end, and the court should not grant the motion to modify. Zivkovic v. Southern 15 California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Johnson, 975 F.2d at 609). 16 “Relevant inquiries [into diligence] include: whether the movant was diligent in helping the court 17 to create a workable Rule 16 order; whether matters that were not, and could not have been, 18 foreseeable at the time of the scheduling conference caused the need for amendment; and 19 whether the movant was diligent in seeking amendment once the need to amend became 20 apparent.” United States ex rel. Terry v. Wasatch Advantage Grp., LLC, 327 F.R.D. 395, 404 21 (E.D. Cal. 2018) (internal quotation marks and citation omitted) (alteration in original). 22 However, “carelessness is not compatible with a finding of diligence and offers no reason for a 23 grant of relief.” Johnson, 975 F.2d at 609 (compiling cases). Thus, if the party seeking the 24 modification “was not diligent, the inquiry should end.” Id. 25 Federal Rule of Civil Procedure 6 provides that when an act may or must be done within 26 a specified time, the court may, for good cause, extend the time: . . . (B) on motion made after 27 the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 1 III. 2 DISCUSSION 3 First, the Court finds Plaintiff’s Motion is procedurally defective. Although the motion 4 cites Local Rule 134(c)(3) as a justification for the delay, the motion is not expressly brought 5 pursuant to any Local Rule or Federal Rule of Procedure, such as the Local Rule for 6 administrative relief, or a noticed motion made, for example, pursuant to Federal Rule of Civil 7 Procedure 6 or 16. Plaintiff did not meet the express requirements for the filing of a motion for 8 administrative relief. (See L.R. 233(a) (providing, among other requirements, that a “motion for 9 administrative relief . . . must be labeled as a motion for administrative relief . . . must be 10 accompanied by a proposed order . . . must include a statement setting forth the position of all 11 parties affected by the motion, or a statement explaining why such position could not be 12 ascertained.”). Nor is the motion made pursuant to other Local Rules pertaining to civil motions 13 and ex parte applications. See L.R. 144, 230. 14 Even if not procedurally defective, the Motion contains no proper basis for the granting 15 of any relief. The Court considers the only law cited as a basis for relief in the Motion, Local 16 Rule 134(c)(3). The Local Rule only provides that: 17 Failure at the Sender. Problems on the filer’s end, such as phone line problems, problems with the filer's Internet Service Provider 18 (ISP), or hardware or software problems, will not constitute a technical failure under these procedures nor excuse an untimely 19 filing. A filer subject to mandatory electronic filing who cannot directly file a document electronically because of a technical 20 problem on the filer's end must file the document electronically from another computer or in portable electronic format at the 21 Clerk's Office. If electronic filing is not possible in any form, the party may file a paper document, shall annotate on the cover page 22 that electronic filing was not possible because of technical reasons, and shall file electronically as soon as possible. 23 24 L.R. 134(c)(3). 25 Plaintiff’s motion explains that the “Plaintiff’s Motion was due on December 15, 2023[;] 26 Plaintiff met and conferred with counsel by email and telephone before the original deadline, and 27 pursuant to Local Rule 134(c)(3), immediately served her brief to County counsel after discovering 1 advance notice of Plaintiff’s intention to file, and service of Plaintiff’s brief by 1:00 a.m. on 2 Saturday, December 16 [and] Plaintiff has since served County counsel with the full motion and all 3 supporting documents.” (Id.) It is not clear from the filing why the motion was not filed on the 4 docket electronically until December 20, 2023. Further, the motion only indicates that “Plaintiff’s 5 counsel sought consent on this Motion, but County counsel did not give it.” (Id.) 6 Even if the motion was not procedurally defective and the Court considers, for example, 7 Rule 6 and Rule 16, the Court finds Plaintiff has not demonstrated diligence to establish good 8 cause to modify the scheduling order, nor excusable neglect, for the reasons now explained. See 9 Johnson, 975 F.2d at 609; Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership 10 (Pioneer), 507 U.S. 380
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 MAHWISH CHOUDHRY, Case No. 1:21-cv-01287-JLT-SAB
12 Plaintiffs, ORDER DENYING PLAINTIFF’S MOTION TO DEEM PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT AS TIMELY FILED
14 TULARE COUNTY, et al., (ECF Nos. 67, 68, 69)
15 Defendants.
17 18 I. 19 INTRODUCTION 20 Dispositive motions were due in this matter on December 15, 2023. (ECF No. 57.) 21 Defendants timely filed motions for summary judgment. (ECF Nos. 16, 17.) On December 20, 22 2023, Plaintiff filed a motion for summary judgment. (ECF No. 66.) On the same date, Plaintiff 23 filed a motion to accept Plaintiff’s motion for summary judgment as timely filed (the “Motion”). 24 (ECF No. 67.) The motion was not set for hearing before a judge; however, the caption does 25 indicate the Motion was directed at the assigned Magistrate Judge. (Id. at 1.) 26 On December 21, 2023, the Court ordered Defendants to file a statement of opposition or 27 non-opposition to the Motion. (ECF No. 68.) On the same date, Defendants filed an opposition. For the reasons explained below, the Plaintiff’s Motion shall be denied. 1 II. 2 LEGAL STANDARD 3 Federal Rule of Civil Procedure 16(b) provides that the district court must issue a 4 scheduling order that limits “the time to join other parties, amend the pleadings, complete 5 discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). A scheduling order “may be modified 6 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 7 The “good cause” standard “primarily considers the diligence of the party seeking the 8 amendment,” and the Court “may modify the pretrial schedule if it cannot reasonably be met 9 despite the diligence of the party seeking the extension.” Johnson v. Mammoth Recreations, 10 Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal citation and quotations omitted). The prejudice 11 to parties opposing modification of the scheduling order, if any, may be grounds for denying the 12 motion, but the focus is on the moving party’s reason for seeking the modification. Id. 13 If the party seeking to amend the scheduling order fails to show due diligence, the inquiry 14 should end, and the court should not grant the motion to modify. Zivkovic v. Southern 15 California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Johnson, 975 F.2d at 609). 16 “Relevant inquiries [into diligence] include: whether the movant was diligent in helping the court 17 to create a workable Rule 16 order; whether matters that were not, and could not have been, 18 foreseeable at the time of the scheduling conference caused the need for amendment; and 19 whether the movant was diligent in seeking amendment once the need to amend became 20 apparent.” United States ex rel. Terry v. Wasatch Advantage Grp., LLC, 327 F.R.D. 395, 404 21 (E.D. Cal. 2018) (internal quotation marks and citation omitted) (alteration in original). 22 However, “carelessness is not compatible with a finding of diligence and offers no reason for a 23 grant of relief.” Johnson, 975 F.2d at 609 (compiling cases). Thus, if the party seeking the 24 modification “was not diligent, the inquiry should end.” Id. 25 Federal Rule of Civil Procedure 6 provides that when an act may or must be done within 26 a specified time, the court may, for good cause, extend the time: . . . (B) on motion made after 27 the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 1 III. 2 DISCUSSION 3 First, the Court finds Plaintiff’s Motion is procedurally defective. Although the motion 4 cites Local Rule 134(c)(3) as a justification for the delay, the motion is not expressly brought 5 pursuant to any Local Rule or Federal Rule of Procedure, such as the Local Rule for 6 administrative relief, or a noticed motion made, for example, pursuant to Federal Rule of Civil 7 Procedure 6 or 16. Plaintiff did not meet the express requirements for the filing of a motion for 8 administrative relief. (See L.R. 233(a) (providing, among other requirements, that a “motion for 9 administrative relief . . . must be labeled as a motion for administrative relief . . . must be 10 accompanied by a proposed order . . . must include a statement setting forth the position of all 11 parties affected by the motion, or a statement explaining why such position could not be 12 ascertained.”). Nor is the motion made pursuant to other Local Rules pertaining to civil motions 13 and ex parte applications. See L.R. 144, 230. 14 Even if not procedurally defective, the Motion contains no proper basis for the granting 15 of any relief. The Court considers the only law cited as a basis for relief in the Motion, Local 16 Rule 134(c)(3). The Local Rule only provides that: 17 Failure at the Sender. Problems on the filer’s end, such as phone line problems, problems with the filer's Internet Service Provider 18 (ISP), or hardware or software problems, will not constitute a technical failure under these procedures nor excuse an untimely 19 filing. A filer subject to mandatory electronic filing who cannot directly file a document electronically because of a technical 20 problem on the filer's end must file the document electronically from another computer or in portable electronic format at the 21 Clerk's Office. If electronic filing is not possible in any form, the party may file a paper document, shall annotate on the cover page 22 that electronic filing was not possible because of technical reasons, and shall file electronically as soon as possible. 23 24 L.R. 134(c)(3). 25 Plaintiff’s motion explains that the “Plaintiff’s Motion was due on December 15, 2023[;] 26 Plaintiff met and conferred with counsel by email and telephone before the original deadline, and 27 pursuant to Local Rule 134(c)(3), immediately served her brief to County counsel after discovering 1 advance notice of Plaintiff’s intention to file, and service of Plaintiff’s brief by 1:00 a.m. on 2 Saturday, December 16 [and] Plaintiff has since served County counsel with the full motion and all 3 supporting documents.” (Id.) It is not clear from the filing why the motion was not filed on the 4 docket electronically until December 20, 2023. Further, the motion only indicates that “Plaintiff’s 5 counsel sought consent on this Motion, but County counsel did not give it.” (Id.) 6 Even if the motion was not procedurally defective and the Court considers, for example, 7 Rule 6 and Rule 16, the Court finds Plaintiff has not demonstrated diligence to establish good 8 cause to modify the scheduling order, nor excusable neglect, for the reasons now explained. See 9 Johnson, 975 F.2d at 609; Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership 10 (Pioneer), 507 U.S. 380, 395 (1993) (In determining if excusable neglect justifies extending a 11 court deadline, the Court is to consider four factors: 1) the danger of prejudice; 2) the length of 12 the delay and its potential impact on the proceedings; 3) the reason for the delay, including 13 whether it was in the reasonable control of the party; and 4) whether the party acted in good 14 faith.).1 15 As the Court noted in its previous order, and as Defendants emphasize in the opposition, 16 Local Rule 134(c)(3) expressly states “Problems on the filer’s end, such as phone line problems, 17 problems with the filer's Internet Service Provider (ISP), or hardware or software problems, will 18 not constitute a technical failure under these procedures nor excuse an untimely filing.” 19 Significantly, as Defendants note, while Plaintiff’s principal excuse for the late filing is that they 20 were unaware they could not file in the CM/ECF system, on June 21, 2022, Plaintiff was directed 21 by the Court at the time the pro hac vice application was granted, to request filing access through 22 PACER. (See ECF No. 48.) 23 In the opposition, Defendants proffer that Plaintiff additionally failed to file and serve the 24 motion promptly as required under Local Rule 134, as the motion was not filed on the docket 25 1 While Pioneer involved bankruptcy proceedings, the Ninth Circuit has utilized this test in a variety of 26 circumstances for the excusable neglect standard. See United States v. Foster, 178 F.3d 1301 (9th Cir. 1999) (extension of time for Rule 4(b)(4) criminal appeal); Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th 27 Cir. 2010) (Rule 60(b)); Iopa v. Saltchuk-Young Bros., Ltd., 916 F.3d 1298, 1301 (9th Cir. 2019) (noting that “[w]e and our sister circuits have adopted the Supreme Court’s four-factor test” in a variety of contexts, and upholding 1 until December 20, 2023. 2 Further while Plaintiff suggests there is no prejudice to Defendants, Defendants respond 3 that they are entitled to move forward with defense of this action and rely on deadlines. In this 4 regard, as to reason for delay, prejudice, and good faith, the Court finds it significant that 5 Defendants proffer that while Plaintiff was required to meet and confer prior to filing the motion 6 for summary judgment to discuss whether issues can be resolved without briefing, and to arrive 7 at a joint statement of undisputed facts, and certify such meet and confer, (ECF No. 50), 8 Defendants suggest Plaintiff’s statements regarding meet and confer are misleading or false, as 9 while the parties met and conferred regarding Defendants’ motion for summary judgment, they 10 did not confer specifically as to the Plaintiff’s motion aside from Plaintiff’s counsel mentioning 11 they intended to file such motion when meeting and conferring regarding Defendants’ motion. 12 Thereafter, Defendants’ counsel did not hear anything from Plaintiff regarding the motion or 13 proposed joint statement of undisputed facts until after the close of business on December 15, 14 2023, after counsel left for the day. Defendants proffer that while Plaintiff cc’d Defendant on 15 correspondence with the Court at 1:00 a.m. on December 16, 2023, and attached points and 16 authorities, the document did not contain any notice of motion, any statement of undisputed 17 facts, or evidence. Thus, Defendants proffer Plaintiff misleads the Court when Plaintiff proffers 18 that Defendants were served with the full motion and supporting documents, as such was not 19 served until 11:07 a.m. on December 20, 2023. 20 Based on the reasons expressed in the Plaintiff’s Motion, as addressed in opposition, the 21 Court finds Plaintiff’s Motion is procedurally defective, and further contains no factual or legal 22 basis to support granting. See L.R. 134(c)(3); Fed. R. Civ. P. 6, 16; Johnson, 975 F.2d at 609; 23 Pioneer, 507 U.S. at 395. 24 / / / 25 / / / 26 / / / 27 / / / 1 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to deem the motion for 2 | summary judgment timely filed (ECF No. 67) is DENIED. 3 4 IT IS SO ORDERED. FA. ee 5 Dated: _ December 22, 2023
‘ UNITED STATES MAGISTRATE JUDGE
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