1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH HWANG, an individual, Case No.: 3:23-cv-01666-WQH-VET
12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE JOINT MOTION TO AMEND THE SCHEDULING 14 NATIONWIDE LIFE AND ANNUITY ORDER INSURANCE COMPANY, an Ohio 15 corporation; NATIONWIDE LIFE 16 INSURANCE COMPANY, an Ohio [Doc. No. 27] corporation; and DOES 1 to 10, inclusive, 17 Defendants. 18 19 20 Before the Court is the parties’ Joint Motion to Amend the Scheduling Order 21 Regulating Discovery and Other Pre-Trial Proceedings (“Joint Motion”). Doc. No. 27. 22 Therein, the parties seek to extend the deadline to complete fact discovery by forty-five 23 (45) days, from May 28 to July 12, 2024. Id. at 4. They state that Plaintiff’s deposition and 24 Defendant’s Fed. R. Civ. P. 30(b)(6) deposition (collectively “Remaining Depositions”) 25 could not be completed by the May 28 fact discovery cutoff due to deponents’ 26 unavailability. Id. at 3–4. They also state Plaintiff’s counsel was in trial from April 26 to 27 May 24, 2024. Id. at 4. This is the parties’ third request for a discovery continuance. See 28 Doc. Nos. 22, 24. 1 I. LEGAL STANDARD 2 In determining whether to modify a scheduling order, the Court considers the “good 3 cause” standard set forth in Federal Rule of Civil Procedure 16(b)(4). Fed. R. Civ. P. 4 16(b)(4). Pursuant to Rule 16(b)(4), a “schedule may be modified only for good cause and 5 with the judge’s consent.” Id. (emphasis added); Zivkovic v. S. Cal. Edison Co., 302 F.3d 6 1080, 1087 (9th Cir. 2002) (“the pretrial scheduling order can only be modified upon a 7 showing of good cause”). Rule 16(b)(4)’s “good cause” standard “primarily considers the 8 diligence of the party seeking the amendment.” Learjet, Inc. v. Oneok, Inc. (In re W. States 9 Wholesale Natural Gas Antitrust Litig.), 715 F.3d 716, 737 (9th Cir. 2013). “The district 10 court may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence 11 of the party seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 12 609 (9th Cir. 1992) (citing to Fed. R. Civ. P. 16 advisory committee’s notes on the 1983 13 amendment); see also Zivkovic, 302 F.3d at 1087. The focus of the inquiry is upon the 14 moving party’s reasons for seeking modification. Id; Adrian v. OneWest Bank, FSB, 686 15 Fed. Appx. 403, 405 (9th Cir. 2017) (applied to joint motions); Neidermeyer v. Caldwell, 16 718 Fed. Appx. 485, 489 (9th Cir. 2017) (moving party did not show good cause when he 17 “offered no explanation for his undue delay”). 18 Further, the required showing of diligence is measured by conduct displayed 19 throughout the period of time already allowed. See, e.g., Muniz v. United Parcel Serv., Inc., 20 731 F.Supp.2d 961, 967 (N.D. Cal. 2010); Krohne Fund, LP v. Simonsen, 681 Fed. Appx. 21 635, 638 (9th Cir. 2017); Lyles v. Dollar Rent a Car, Inc., 849 Fed. Appx. 659, 661 (9th 22 Cir. 2021). “If the moving party was not diligent, the inquiry should end.” Johnson, 975 23 F.2d at 609; Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017) 24 (same). Further, Civil Local Rule 16.1(b) requires that counsel “proceed with diligence to 25 take all steps necessary to bring an action to readiness for trial.” Civ.LR 16.1(b). 26 When a request for relief from case management deadlines is made after the relevant 27 deadline expires, as is the case here, the party must demonstrate excusable neglect. Branch 28 Banking & Trust Co., 871 F.3d 764–65; see also Fed. R. Civ. P. 6(b)(1)(B) (“When an act 1 may or must be done within a specified time, the court may, for good cause, extend the 2 time . . . on motion made after the time has expired if the party failed to act because of 3 excusable neglect.”). The excusable neglect analysis is guided by factors that include: (1) 4 the danger of prejudice to the opposing party; (2) the length of delay and its potential impact 5 on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good 6 faith. Branch Banking, 871 F.3d at 765. “[I]nadvertence, ignorance of the rules, or mistakes 7 construing the rules do not usually constitute ‘excusable’ neglect.” Bella+Canvas, LLC v. 8 Fountain Set Ltd., No. 2:21-cv-00758-ODW (MAAx), 2023 U.S. Dist. LEXIS 25259, at 9 *9 (C.D. Cal. Feb. 14, 2023) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 10 U.S. 380, 392 (1993)). 11 II. ANALYSIS 12 Pursuant to the Court’s first Scheduling Order, the parties had over five months to 13 complete fact discovery, including the Remaining Depositions. Doc. No. 14 at 2. The Court 14 denied without prejudice the parties’ first request for an extension of fact discovery and 15 other deadlines because they failed to offer facts demonstrating good cause. See Doc. 16 No. 23. The Court granted a subsequent request and extended fact discovery to May 28, 17 2024, the date requested by the parties. See Doc. No. 26 at 2. Notably, the basis for the 18 parties’ request was the need to conduct the Remaining Depositions “due to the 19 unavailability of deponents.” Doc. No. 24 at 3. Further, when granting this extension, the 20 Court advised that “further continuances are strongly disfavored absent new and additional 21 supporting facts.” Doc. No. 26 at 2. 22 The parties now seek an extension to conduct the same Remaining Depositions. 23 Compare Doc. No. 24 with Doc. No. 27. They again cite to the “unavailability of 24 deponents” as the basis for their request, but fail to offer any explanation as to why the 25 deponents were unavailable, nor do they specify if either deposition was re-noticed after 26 the Court granted the May 28 extension. In fact, it is unclear whether any action concerning 27 the Remaining Depositions occurred since the Court’s April 23 order granting the 28 extension. 1 The parties also note that Plaintiff's counsel was in trial from April 26 through May 2 2024. However, the parties requested a May 28 deadline in their joint motion filed on 3 || April 16, just ten (10) days before Plaintiff's counsel began trial. See Doc. No. 24. They 4 ||do not suggest or represent that this trial was unexpected, nor do they explain why they 5 || requested an extension that overlapped so closely with the trial. 6 Furthermore, the parties do not explain why they failed to seek relief prior to the 7 || expiration of the fact discovery deadline. The parties filed the Joint Motion on May 31, 8 2024, three days after the May 28 fact discovery deadline. While prejudice to the parties is 9 ||shared equally and the delay was relatively short, they offer no reason for the delay and 10 |}make no representation as to good faith. Without any reason offered for the Court to 11 || evaluate, or even an acknowledgement that their request was untimely, the parties fail to 12 demonstrate excusable neglect. 13 In short, the parties failed to complete the Remaining Depositions after being 14 || provided the precise amount of additional time they requested.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH HWANG, an individual, Case No.: 3:23-cv-01666-WQH-VET
12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE JOINT MOTION TO AMEND THE SCHEDULING 14 NATIONWIDE LIFE AND ANNUITY ORDER INSURANCE COMPANY, an Ohio 15 corporation; NATIONWIDE LIFE 16 INSURANCE COMPANY, an Ohio [Doc. No. 27] corporation; and DOES 1 to 10, inclusive, 17 Defendants. 18 19 20 Before the Court is the parties’ Joint Motion to Amend the Scheduling Order 21 Regulating Discovery and Other Pre-Trial Proceedings (“Joint Motion”). Doc. No. 27. 22 Therein, the parties seek to extend the deadline to complete fact discovery by forty-five 23 (45) days, from May 28 to July 12, 2024. Id. at 4. They state that Plaintiff’s deposition and 24 Defendant’s Fed. R. Civ. P. 30(b)(6) deposition (collectively “Remaining Depositions”) 25 could not be completed by the May 28 fact discovery cutoff due to deponents’ 26 unavailability. Id. at 3–4. They also state Plaintiff’s counsel was in trial from April 26 to 27 May 24, 2024. Id. at 4. This is the parties’ third request for a discovery continuance. See 28 Doc. Nos. 22, 24. 1 I. LEGAL STANDARD 2 In determining whether to modify a scheduling order, the Court considers the “good 3 cause” standard set forth in Federal Rule of Civil Procedure 16(b)(4). Fed. R. Civ. P. 4 16(b)(4). Pursuant to Rule 16(b)(4), a “schedule may be modified only for good cause and 5 with the judge’s consent.” Id. (emphasis added); Zivkovic v. S. Cal. Edison Co., 302 F.3d 6 1080, 1087 (9th Cir. 2002) (“the pretrial scheduling order can only be modified upon a 7 showing of good cause”). Rule 16(b)(4)’s “good cause” standard “primarily considers the 8 diligence of the party seeking the amendment.” Learjet, Inc. v. Oneok, Inc. (In re W. States 9 Wholesale Natural Gas Antitrust Litig.), 715 F.3d 716, 737 (9th Cir. 2013). “The district 10 court may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence 11 of the party seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 12 609 (9th Cir. 1992) (citing to Fed. R. Civ. P. 16 advisory committee’s notes on the 1983 13 amendment); see also Zivkovic, 302 F.3d at 1087. The focus of the inquiry is upon the 14 moving party’s reasons for seeking modification. Id; Adrian v. OneWest Bank, FSB, 686 15 Fed. Appx. 403, 405 (9th Cir. 2017) (applied to joint motions); Neidermeyer v. Caldwell, 16 718 Fed. Appx. 485, 489 (9th Cir. 2017) (moving party did not show good cause when he 17 “offered no explanation for his undue delay”). 18 Further, the required showing of diligence is measured by conduct displayed 19 throughout the period of time already allowed. See, e.g., Muniz v. United Parcel Serv., Inc., 20 731 F.Supp.2d 961, 967 (N.D. Cal. 2010); Krohne Fund, LP v. Simonsen, 681 Fed. Appx. 21 635, 638 (9th Cir. 2017); Lyles v. Dollar Rent a Car, Inc., 849 Fed. Appx. 659, 661 (9th 22 Cir. 2021). “If the moving party was not diligent, the inquiry should end.” Johnson, 975 23 F.2d at 609; Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017) 24 (same). Further, Civil Local Rule 16.1(b) requires that counsel “proceed with diligence to 25 take all steps necessary to bring an action to readiness for trial.” Civ.LR 16.1(b). 26 When a request for relief from case management deadlines is made after the relevant 27 deadline expires, as is the case here, the party must demonstrate excusable neglect. Branch 28 Banking & Trust Co., 871 F.3d 764–65; see also Fed. R. Civ. P. 6(b)(1)(B) (“When an act 1 may or must be done within a specified time, the court may, for good cause, extend the 2 time . . . on motion made after the time has expired if the party failed to act because of 3 excusable neglect.”). The excusable neglect analysis is guided by factors that include: (1) 4 the danger of prejudice to the opposing party; (2) the length of delay and its potential impact 5 on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good 6 faith. Branch Banking, 871 F.3d at 765. “[I]nadvertence, ignorance of the rules, or mistakes 7 construing the rules do not usually constitute ‘excusable’ neglect.” Bella+Canvas, LLC v. 8 Fountain Set Ltd., No. 2:21-cv-00758-ODW (MAAx), 2023 U.S. Dist. LEXIS 25259, at 9 *9 (C.D. Cal. Feb. 14, 2023) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 10 U.S. 380, 392 (1993)). 11 II. ANALYSIS 12 Pursuant to the Court’s first Scheduling Order, the parties had over five months to 13 complete fact discovery, including the Remaining Depositions. Doc. No. 14 at 2. The Court 14 denied without prejudice the parties’ first request for an extension of fact discovery and 15 other deadlines because they failed to offer facts demonstrating good cause. See Doc. 16 No. 23. The Court granted a subsequent request and extended fact discovery to May 28, 17 2024, the date requested by the parties. See Doc. No. 26 at 2. Notably, the basis for the 18 parties’ request was the need to conduct the Remaining Depositions “due to the 19 unavailability of deponents.” Doc. No. 24 at 3. Further, when granting this extension, the 20 Court advised that “further continuances are strongly disfavored absent new and additional 21 supporting facts.” Doc. No. 26 at 2. 22 The parties now seek an extension to conduct the same Remaining Depositions. 23 Compare Doc. No. 24 with Doc. No. 27. They again cite to the “unavailability of 24 deponents” as the basis for their request, but fail to offer any explanation as to why the 25 deponents were unavailable, nor do they specify if either deposition was re-noticed after 26 the Court granted the May 28 extension. In fact, it is unclear whether any action concerning 27 the Remaining Depositions occurred since the Court’s April 23 order granting the 28 extension. 1 The parties also note that Plaintiff's counsel was in trial from April 26 through May 2 2024. However, the parties requested a May 28 deadline in their joint motion filed on 3 || April 16, just ten (10) days before Plaintiff's counsel began trial. See Doc. No. 24. They 4 ||do not suggest or represent that this trial was unexpected, nor do they explain why they 5 || requested an extension that overlapped so closely with the trial. 6 Furthermore, the parties do not explain why they failed to seek relief prior to the 7 || expiration of the fact discovery deadline. The parties filed the Joint Motion on May 31, 8 2024, three days after the May 28 fact discovery deadline. While prejudice to the parties is 9 ||shared equally and the delay was relatively short, they offer no reason for the delay and 10 |}make no representation as to good faith. Without any reason offered for the Court to 11 || evaluate, or even an acknowledgement that their request was untimely, the parties fail to 12 demonstrate excusable neglect. 13 In short, the parties failed to complete the Remaining Depositions after being 14 || provided the precise amount of additional time they requested. The declaration from 15 ||counsel fails to describe steps either party took to move the depositions forward, why 16 circumstances further delaying depositions were not apparent when requesting the May 28 17 || extension, or why the parties did not file the Joint Motion before the fact discovery deadline 18 ||expired. Absent additional facts, the parties fail to demonstrate the requisite diligence and 19 || corresponding good cause to support extending fact discovery as requested. They similarly 20 || fail to show excusable neglect to support the Joint Motion, made after the close of fact 21 || discovery. Therefore, the Joint Motion is DENIED WITHOUT PREJUDICE. 22 IT IS SO ORDERED. 23 Dated: June 7, 2024 24 [wre 25 Honorable Valerie E. Torres 26 United States Magistrate Judge 27 28