1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARTHA DE LA ROSA, Case No.: 21-cv-1630-W-BGS
12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART JOINT MOTION TO AMEND 14 COSTCO WHOLESALE SCHEDULING ORDER CORPORATION 15 Defendant. 16 [ECF 15] 17 18 On July 5, 2022, the parties filed a Joint Motion seeking to extend almost1 every 19 deadline set in the Court’s November 19, 2021 Scheduling Order by 150 days, including 20 five deadlines that have already passed. (ECF 15.) For the reasons set forth below, the 21 Joint Motion is GRANTED in part and DENIED in part. 22 I. Joint Motion 23 The parties’ Joint Motion seeks to extend five deadlines in the Scheduling Order 24 that have already passed, beginning with the March 8, 2022 deadline to complete fact 25 discovery through the June 6, 2022 deadline to supplement disclosures under Rule 26 27 1 The parties did not seek to extend the December 8, 2021 deadline to amend the 28 1 26(a)(2)(D) and 26(e). (ECF 15 ¶ 10.) The parties also move to extend all deadlines that 2 have not yet passed, from the July 6, 2022 deadline to complete expert discovery though 3 the pretrial conference. (Id.) 4 As good cause for the lengthy extensions requested, the parties point to delays in 5 completing Plaintiff’s deposition, initially scheduled for December 17, 2021 and 6 completed on April 4, 2022, (ECF 15 ¶¶ 2-6; Decl. of Daniel De La Cruz ¶¶ 3-7), and 7 Plaintiff’s counsel not discovering until May 16, 2022 that he had not received the 8 Court’s November 19, 2022 Scheduling Order (ECF 15 ¶ 16; Decl. of Christopher Garcia 9 ¶¶ 2-3). 10 As to the late discovery of the Court’s November 19, 2021 Scheduling Order, 11 Plaintiff’s counsel’s declaration indicates he “discovered for an unknown reason, my 12 office had not received this Court’s November 19, 2021 Scheduling Order . . . through 13 CM/ECF since its issuance by this Court” and explains that when co-counsel’s email 14 inbox was reviewed “in May 2022 there was no record of receiving the scheduling order 15 although he had received the previous filings that had been served through CM/ECF in 16 this matter.” (Garcia Decl. ¶ 2.) The declaration then indicates that “[u]pon discovery 17 that Plaintiff’s counsel had not received the Scheduling Order I immediately notified 18 Defendant’s counsel of this discovery, Plaintiff’s desire to take necessary depositions not 19 yet taken, and sought to meet and confer toward filing the instant joint motion.” (Id. ¶ 3.) 20 As to the discovery the parties have completed, the Joint Motion indicates the 21 parties have exchanged initial disclosures, taken Plaintiff’s deposition, and exchanged 22 additional responsive documents. (ECF 15 ¶ 9; De La Cruz Decl. ¶ 9.) As to outstanding 23 discovery , the parties indicate they “anticipate conducting more formal discovery in the 24 immediate future, including Plaintiff’s noticing and taking depositions of Defendant’s 25 relevant witnesses.” (ECF 15 ¶; De La Cruz Decl. ¶ 9.) 26 The parties argue that “good cause exists for granting the Parties’ joint request to 27 amend the Scheduling Order so that all remaining dates and deadlines are continued by 28 1 an additional 150 days to allow the Parties to develop a sufficient factual record and 2 complete all necessary discovery.” (ECF 15 ¶ 10 (citing De La Cruz Decl. ¶ 9).) 3 For the reasons set forth below, the Court disagrees. 4 II. Legal Standard 5 A. Good Cause 6 A Scheduling Order may be modified only for good cause and with the judge’s 7 consent. Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and 8 with the judge’s consent). In the absence of good cause, the court will not modify the 9 scheduling order. See Johnson v Mammoth Recreations, Inc., 975 F.2d 604, 608–09 (9th 10 Cir. 1992); see also Judge Skomal’s Chambers’ Rules (“Chambers’ Rules”) III.C (“The 11 dates and times set in the Scheduling Order will not be modified except for good cause 12 shown.”). 13 The inquiry under “Rule 16(b)’s ‘good cause’ standard primarily considers the 14 diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. If the party 15 was not diligent, the inquiry should end. Id. (“Although the existence or degree of 16 prejudice to the party opposing the modification might supply additional reasons to deny 17 a motion, the focus of the inquiry is upon the moving party’s reasons for seeking 18 modification.”). “Moreover, carelessness is not compatible with a finding of diligence 19 and offers no reason for a grant of relief. Johnson, 975 F.2d at 609 (citations omitted). 20 The Chambers’ Rules also remind counsel of “their duty of diligence and that they must 21 ‘take all steps necessary to bring an action to readiness for trial.’” Chambers’ Rule III.C 22 (citing CivLR 16.1(b)). 23 B. Excusable Neglect 24 “When an act may or must be done within a specified time, the court may, for good 25 cause, extend the time . . . on motion made after the time has expired if the party failed to 26 act because of excusable neglect.” Fed. R. Civ. P 6(b)(1); see also Chambers’ Rule 27 III(C)(3) (“When any motion to extend time is made after time has expired, Fed. R. Civ. P. 28 6(b)(1)(B) requires the parties to address excusable neglect.”); see also November 19, 1 2021 Scheduling Order ¶ 23 (“The dates and times set forth herein will not be modified 2 except for good cause shown or on a showing of excusable neglect. Fed. R. Civ. P. 3 6(b)(1).”). The determination of excusable neglect takes into account: (1) the danger of 4 prejudice; (2) the length of the delay and its potential impact on judicial proceedings; (3) 5 the reasons for the delay which includes whether it was within the reasonable control of 6 the party seeking to show excusable neglect; and (4) whether that party acted in good faith. 7 Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225, 1234–35 (D. Kan. 2007) 8 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 395 (1993)). 9 C. Chambers’ Rules 10 Unopposed requests for extensions “must include a declaration from counsel of 11 record detailing the steps taken to comply with the dates and deadlines set in the order, and 12 the specific reasons why deadlines cannot be met, as well as the specific discovery that has 13 been conducted, and what specific discovery remains outstanding.” Chambers’ Rules 14 III.C.1. 15 III. DISCUSSION 16 As an initial matter, despite seeking to extend deadlines that passed, one almost 17 four months ago, the Joint Motion does not address the excusable neglect standard that 18 applies to a request to extend time when the deadline has passed. Although Plaintiff’s 19 counsel points to his lack of receipt of the Scheduling Order, there is no explanation why 20 Plaintiff’s counsel had not reviewed the case docket that included the Scheduling Order 21 in the six months between its issuance on November 19, 2021 and Plaintiff’s counsel 22 discovery of it on May 16, 2022. Additionally, there is no explanation why Plaintiff 23 waited an additional seven weeks after discovering the Scheduling Order to seek an 24 extension from the Court. Since the discovery of the Scheduling Order on May 16, 2022 25 and the filing of this Joint Motion two additional deadlines passed.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARTHA DE LA ROSA, Case No.: 21-cv-1630-W-BGS
12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART JOINT MOTION TO AMEND 14 COSTCO WHOLESALE SCHEDULING ORDER CORPORATION 15 Defendant. 16 [ECF 15] 17 18 On July 5, 2022, the parties filed a Joint Motion seeking to extend almost1 every 19 deadline set in the Court’s November 19, 2021 Scheduling Order by 150 days, including 20 five deadlines that have already passed. (ECF 15.) For the reasons set forth below, the 21 Joint Motion is GRANTED in part and DENIED in part. 22 I. Joint Motion 23 The parties’ Joint Motion seeks to extend five deadlines in the Scheduling Order 24 that have already passed, beginning with the March 8, 2022 deadline to complete fact 25 discovery through the June 6, 2022 deadline to supplement disclosures under Rule 26 27 1 The parties did not seek to extend the December 8, 2021 deadline to amend the 28 1 26(a)(2)(D) and 26(e). (ECF 15 ¶ 10.) The parties also move to extend all deadlines that 2 have not yet passed, from the July 6, 2022 deadline to complete expert discovery though 3 the pretrial conference. (Id.) 4 As good cause for the lengthy extensions requested, the parties point to delays in 5 completing Plaintiff’s deposition, initially scheduled for December 17, 2021 and 6 completed on April 4, 2022, (ECF 15 ¶¶ 2-6; Decl. of Daniel De La Cruz ¶¶ 3-7), and 7 Plaintiff’s counsel not discovering until May 16, 2022 that he had not received the 8 Court’s November 19, 2022 Scheduling Order (ECF 15 ¶ 16; Decl. of Christopher Garcia 9 ¶¶ 2-3). 10 As to the late discovery of the Court’s November 19, 2021 Scheduling Order, 11 Plaintiff’s counsel’s declaration indicates he “discovered for an unknown reason, my 12 office had not received this Court’s November 19, 2021 Scheduling Order . . . through 13 CM/ECF since its issuance by this Court” and explains that when co-counsel’s email 14 inbox was reviewed “in May 2022 there was no record of receiving the scheduling order 15 although he had received the previous filings that had been served through CM/ECF in 16 this matter.” (Garcia Decl. ¶ 2.) The declaration then indicates that “[u]pon discovery 17 that Plaintiff’s counsel had not received the Scheduling Order I immediately notified 18 Defendant’s counsel of this discovery, Plaintiff’s desire to take necessary depositions not 19 yet taken, and sought to meet and confer toward filing the instant joint motion.” (Id. ¶ 3.) 20 As to the discovery the parties have completed, the Joint Motion indicates the 21 parties have exchanged initial disclosures, taken Plaintiff’s deposition, and exchanged 22 additional responsive documents. (ECF 15 ¶ 9; De La Cruz Decl. ¶ 9.) As to outstanding 23 discovery , the parties indicate they “anticipate conducting more formal discovery in the 24 immediate future, including Plaintiff’s noticing and taking depositions of Defendant’s 25 relevant witnesses.” (ECF 15 ¶; De La Cruz Decl. ¶ 9.) 26 The parties argue that “good cause exists for granting the Parties’ joint request to 27 amend the Scheduling Order so that all remaining dates and deadlines are continued by 28 1 an additional 150 days to allow the Parties to develop a sufficient factual record and 2 complete all necessary discovery.” (ECF 15 ¶ 10 (citing De La Cruz Decl. ¶ 9).) 3 For the reasons set forth below, the Court disagrees. 4 II. Legal Standard 5 A. Good Cause 6 A Scheduling Order may be modified only for good cause and with the judge’s 7 consent. Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and 8 with the judge’s consent). In the absence of good cause, the court will not modify the 9 scheduling order. See Johnson v Mammoth Recreations, Inc., 975 F.2d 604, 608–09 (9th 10 Cir. 1992); see also Judge Skomal’s Chambers’ Rules (“Chambers’ Rules”) III.C (“The 11 dates and times set in the Scheduling Order will not be modified except for good cause 12 shown.”). 13 The inquiry under “Rule 16(b)’s ‘good cause’ standard primarily considers the 14 diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. If the party 15 was not diligent, the inquiry should end. Id. (“Although the existence or degree of 16 prejudice to the party opposing the modification might supply additional reasons to deny 17 a motion, the focus of the inquiry is upon the moving party’s reasons for seeking 18 modification.”). “Moreover, carelessness is not compatible with a finding of diligence 19 and offers no reason for a grant of relief. Johnson, 975 F.2d at 609 (citations omitted). 20 The Chambers’ Rules also remind counsel of “their duty of diligence and that they must 21 ‘take all steps necessary to bring an action to readiness for trial.’” Chambers’ Rule III.C 22 (citing CivLR 16.1(b)). 23 B. Excusable Neglect 24 “When an act may or must be done within a specified time, the court may, for good 25 cause, extend the time . . . on motion made after the time has expired if the party failed to 26 act because of excusable neglect.” Fed. R. Civ. P 6(b)(1); see also Chambers’ Rule 27 III(C)(3) (“When any motion to extend time is made after time has expired, Fed. R. Civ. P. 28 6(b)(1)(B) requires the parties to address excusable neglect.”); see also November 19, 1 2021 Scheduling Order ¶ 23 (“The dates and times set forth herein will not be modified 2 except for good cause shown or on a showing of excusable neglect. Fed. R. Civ. P. 3 6(b)(1).”). The determination of excusable neglect takes into account: (1) the danger of 4 prejudice; (2) the length of the delay and its potential impact on judicial proceedings; (3) 5 the reasons for the delay which includes whether it was within the reasonable control of 6 the party seeking to show excusable neglect; and (4) whether that party acted in good faith. 7 Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225, 1234–35 (D. Kan. 2007) 8 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 395 (1993)). 9 C. Chambers’ Rules 10 Unopposed requests for extensions “must include a declaration from counsel of 11 record detailing the steps taken to comply with the dates and deadlines set in the order, and 12 the specific reasons why deadlines cannot be met, as well as the specific discovery that has 13 been conducted, and what specific discovery remains outstanding.” Chambers’ Rules 14 III.C.1. 15 III. DISCUSSION 16 As an initial matter, despite seeking to extend deadlines that passed, one almost 17 four months ago, the Joint Motion does not address the excusable neglect standard that 18 applies to a request to extend time when the deadline has passed. Although Plaintiff’s 19 counsel points to his lack of receipt of the Scheduling Order, there is no explanation why 20 Plaintiff’s counsel had not reviewed the case docket that included the Scheduling Order 21 in the six months between its issuance on November 19, 2021 and Plaintiff’s counsel 22 discovery of it on May 16, 2022. Additionally, there is no explanation why Plaintiff 23 waited an additional seven weeks after discovering the Scheduling Order to seek an 24 extension from the Court. Since the discovery of the Scheduling Order on May 16, 2022 25 and the filing of this Joint Motion two additional deadlines passed. (ECF 8 ¶¶ 5-6 (May 26 23, 2022 and June 6, 2022 deadlines for expert disclosures and supplements).) Even if 27 the Court attributed Plaintiff’s counsel’s lack of receipt of the Scheduling Order to a 28 “technical glitch” as Plaintiff’s counsel suggests to excuse failing to comply with the 1 three deadlines that had already passed, there is still no explanation for the delay in 2 pursing an extension and the completion of discovery in the past seven weeks. 3 This deficiency in the parties’ Joint Motion also demonstrates a lack of diligence. 4 Putting aside the lack of diligence in not staying apprised of the schedule for an ongoing 5 case for six months and proceeding to “take all steps necessary to bring [the] action to 6 readiness for trial,” even after realizing deadlines had passed and others would soon, the 7 parties did not file this Joint Motion for an additional seven weeks. CivLR 16.1.b. This 8 was not diligent. The amount of time that has passed since Plaintiff’s counsel discovered 9 the Scheduling Order would have been more than sufficient time for the parties to 10 complete fact and expert discovery on a modified schedule. Instead, inexplicably, the 11 parties waited seven weeks, one day before the July 6, 2022 deadline to complete expert 12 discovery, to ask to extend almost every deadline in the Scheduling Order by five 13 months. This was not diligent. 14 The parties have also failed comply with the Chambers’ Rules. This is significant 15 because the information required by the Chambers’ Rules for a request for an extension is 16 required to address the parties’ diligence, or lack thereof, as well as provide the Court 17 with necessary information to determine the proper length of any extension. As to fact 18 discovery, as already discussed above, the parties have failed to provide “the specific 19 reasons why deadlines cannot be met” because they do not explain the delay since May 20 16, 2022 even assuming the failure to stay apprised of the case schedule was excusable. 21 Additionally, the parties failed to identify “what specific discovery remains outstanding.” 22 Chambers’ Rules III.C.1. The Joint Motion vaguely indicates the parties “anticipate 23 conducting formal discovery in the immediate future, including Plaintiff’s noticing and 24 taking depositions of Defendant’s relevant witnesses.” (ECF 15 ¶ 9.) Not only is this not 25 sufficiently specific to justify any extension, and certainly not a five-month extension, but 26 there is no explanation why any of this discovery was not pursued in the last seven 27 weeks. 28 l The Joint Motion does not address expert discovery at all. In this respect, the Joint 2 || Motion fails to detail “the steps taken to comply with the dates and deadlines set in the 3 || order, and the specific reasons why deadlines cannot be met, as well as the specific 4 || discovery that has been conducted, and what specific discovery remains” as to expert 5 discovery. Chambers Rule II.C.1. In not addressing expert discovery at all, the parties 6 || have certainly not demonstrated their diligence in completing it or in justifying any 7 extension of it. 8 In summary, the parties have failed to comply with the Chambers’ Rules, failed to 9 show the diligence necessary for a showing of good cause, and failed to address 10 excusable neglect as to the deadlines that have already passed. However, in an effort to 11 ||move the case forward, the Court grants the parties an extension of fact discovery to July 12 2022. No other deadlines in the Scheduling Order are extended. To the extent the 13 || parties seek to extend the fact discovery deadline further or any other deadlines, they 14 || must file a renewed joint motion that fully addresses every deficiencies noted above. 15 CONCLUSION 16 The Joint Motion is GRANTED in part and DENIED in part as set forth above 17 IT IS SO ORDERED. 18 Dated: July 6, 2022 □ p / / 19 on. Bernard G. Skomal 20 United States Magistrate Judge 21 22 23 24 25 26 27 28