1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN MARTINS, Case No.: 3:18-cv-01731-AJB-AHG 12 Plaintiff, ORDER SUA SPONTE AMENDING SCHEDULING ORDER 13 v. 14 JACKIE JOSEPHSON and JAY KNOHL, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 This matter comes before the Court upon a review of the docket and after lengthy 26 conferences with the parties. For the reasons set forth below, the Court sua sponte amends 27 the Scheduling Order. 28 1 I. BACKGROUND 2 On May 27, 2021, the Court issued its Scheduling Order, which required any 3 dispositive motions to be filed by February 10, 2022. ECF No. 145 at 3. Neither party filed 4 any dispositive motions by the deadline. In its May 27, 2021, Scheduling Order, the Court 5 also set the pretrial conference for June 23, 2022, requiring the parties to file their pretrial 6 disclosures by May 26, 2022, and lodge their joint proposed pretrial order by June 16, 2022. 7 Id. at 4. On June 2, 2022, since neither party had complied with their pretrial disclosure 8 requirements, Judge Battaglia sua sponte reset the pretrial deadlines. ECF No. 152. The 9 Court reset the pretrial conference for August 18, 2022, and required the parties to lodge 10 their joint proposed pretrial order by August 11, 2022. Id. at 2. 11 On July 5, 2022, Plaintiff filed a motion for continuance, requesting that all pretrial 12 deadlines, including the pretrial conference and deadline to lodge the pretrial order, be 13 continued by 30 days. ECF No. 156 at 2–3. Defendants opposed the motion. ECF No. 157. 14 On July 11, 2022, Judge Battaglia granted Plaintiff’s motion and continued the pretrial 15 conference to September 15, 2022, requiring that the pretrial order be lodged by 16 September 8, 2022. ECF No. 160 at 3. The Court stressed that “there will be no further 17 continuances granted absent exceptional circumstances buttressed by detailed documentary 18 evidence showing why the deadlines cannot be met.” Id. at 2. 19 On September 6, 2022, the parties jointly filed another motion for continuance, 20 requesting that all pretrial deadlines, including the pretrial conference and deadline to lodge 21 the pretrial order, be continued by 30 days. ECF No. 165. The parties represented that “the 22 purpose of this request is to provide additional time for the parties to meet and confer in 23 order to prepare and file the Pre-Trial Order.” Id. at 2. On September 7, 2022, 24 Judge Battaglia granted the parties’ joint motion and continued the pretrial conference to 25 October 13, 2022, requiring that the pretrial order be lodged by October 6, 2022. ECF No. 26 166. In addition to continuing the deadlines, the Court stated that “the parties are 27 ORDERED to appear before the Magistrate Judge for preparation of the pre-trial order.” 28 Id. (emphasis in original); see also ECF No. 152 at 2 (“The Court encourages the parties 1 to consult with the assigned magistrate judge to resolve any problems in preparing the 2 proposed pretrial order.”). 3 On September 7, 2022, the undersigned set a status conference for 4 September 28, 2022, via videoconference, regarding the preparation of the pretrial order. 5 ECF No. 167. Before the conference, the Court had required the parties to submit their 6 “final draft of their Joint Pretrial Order” via email by September 19, 2022. Id. at 2. When 7 both parties failed to timely submit their draft, court staff reached out to both sides 8 numerous times in an attempt to get the parties to comply, to no avail. On 9 September 22, 2022, Plaintiff untimely submitted his portion of the pretrial order, and on 10 September 23, 2022, Defendants untimely submitted their portions of the pretrial order. 11 Neither portion was drafted in accordance with this district’s Civil Local Rules. 12 On September 28, 2022, the Court held a lengthy status conference with the parties. 13 ECF No. 168. The Court spoke at length with the parties about the preparation of the 14 pretrial order, and drafted a template based on the Local Rules to assist the parties in 15 completing their respective portions of the pretrial order. See ECF No. 172. The Court 16 included citations to the precise Local Rule subsection for each paragraph, and included 17 “Court instructions” of exactly what the parties needed to do, including links to the Ninth 18 Circuit Model Jury Instructions. Id. The undersigned instructed the parties to complete their 19 respective portions and set deadlines for doing so. ECF No. 170 (Plaintiff’s portion due 20 October 12, 2022, and Defendants’ portion due October 19, 2022). The Court vacated the 21 October 6, 2022, filing deadline for the pretrial order and the October 13, 2022, pretrial 22 conference, and scheduled an in-person status conference for October 21, 2022, to review 23 the parties’ disputes regarding the pretrial order. Id. at 3. The parties complied with the 24 Court’s deadlines and appeared for the in-person status conference. ECF No. 173. During 25 the lengthy in-person status conference on October 21, 2022, the Court heard oral argument 26 from both sides, and addressed each party’s position regarding each section of the pretrial 27 order. See ECF No. 175. 28 / / 1 II. LEGAL STANDARD 2 A scheduling order “may be modified only for good cause and with the judge’s 3 consent.” FED. R. CIV. P. 16(b)(4); ECF No. 145 at ¶ 15 (original scheduling order, stating 4 that “[t]he dates and times set forth herein will not be modified except for good cause 5 shown”); cf. Chmb.R. at 2 (stating that any request for continuance requires “[a] showing 6 of good cause for the request”). 7 A formal motion to modify the schedule is not required. See FED. R. CIV. P. 16, 8 advisory committee notes on 1983 amendments (“After consultation with the attorneys for 9 the parties and any unrepresented parties—a formal motion is not necessary—the court 10 may modify the schedule on a showing of good cause”); see, e.g., Moalem v. Int’l Spa 11 Ass’n, No. 2:18-cv-2341-GMN-NJK, 2020 WL 209308, at *1–2 (D. Nev. Jan. 13, 2020) 12 (finding good cause to amend scheduling order sua sponte and extend deadline for filing 13 summary judgment motions when neither party requested an extension); Hubbard v. 14 Thompson, No. 2:11-cv-1568-JAM-AC-P, 2013 U.S. Dist. LEXIS 91150, at *6–7 (E.D. 15 Cal. June 27, 2013) (referencing its “broad discretion to manage discovery” and sua sponte 16 modifying the scheduling order and dispositive motion deadline); accord Baroni v. 17 OneWest Bank, No. 1:12-bk-10986-MB, 2015 Bankr. LEXIS 2724, at *8–9 (Bankr. C.D. 18 Cal. Aug. 14, 2015) (sua sponte amending scheduling order to permit filing of a motion for 19 summary judgment, and collecting civil cases where courts modified scheduling orders sua 20 sponte). 21 III. DISCUSSION 22 After two lengthy conferences with the parties (ECF Nos. 168, 173), the Court finds 23 that the parties are unlikely to agree on a proposed pretrial order for submission to the 24 district judge. The undersigned is prepared to make a Report and Recommendation to the 25 district judge regarding a compromise pretrial order. However, upon due consideration, the 26 Court also finds that before proceeding to trial in this case, good cause exists to allow 27 Defendants to file a motion for summary judgment on all of Plaintiff’s claims. See FED. R. 28 CIV. P. 1 (courts should construe the Federal Rules “to secure the just, speedy, and 1 inexpensive determination of every action and proceeding”). Defendants’ new counsel in 2 this case entered an appearance on June 3, 2022 (ECF Nos. 152, 153), well after the 3 February 10, 2022, dispositive motion deadline passed. Further, without making any 4 findings on the merits, the undersigned notes that there are serious issues as to the viability 5 of Plaintiff’s copyright claims in light of the statute of limitations and the Court’s order 6 dismissing the other defendants on those grounds. See ECF No. 101.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN MARTINS, Case No.: 3:18-cv-01731-AJB-AHG 12 Plaintiff, ORDER SUA SPONTE AMENDING SCHEDULING ORDER 13 v. 14 JACKIE JOSEPHSON and JAY KNOHL, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 This matter comes before the Court upon a review of the docket and after lengthy 26 conferences with the parties. For the reasons set forth below, the Court sua sponte amends 27 the Scheduling Order. 28 1 I. BACKGROUND 2 On May 27, 2021, the Court issued its Scheduling Order, which required any 3 dispositive motions to be filed by February 10, 2022. ECF No. 145 at 3. Neither party filed 4 any dispositive motions by the deadline. In its May 27, 2021, Scheduling Order, the Court 5 also set the pretrial conference for June 23, 2022, requiring the parties to file their pretrial 6 disclosures by May 26, 2022, and lodge their joint proposed pretrial order by June 16, 2022. 7 Id. at 4. On June 2, 2022, since neither party had complied with their pretrial disclosure 8 requirements, Judge Battaglia sua sponte reset the pretrial deadlines. ECF No. 152. The 9 Court reset the pretrial conference for August 18, 2022, and required the parties to lodge 10 their joint proposed pretrial order by August 11, 2022. Id. at 2. 11 On July 5, 2022, Plaintiff filed a motion for continuance, requesting that all pretrial 12 deadlines, including the pretrial conference and deadline to lodge the pretrial order, be 13 continued by 30 days. ECF No. 156 at 2–3. Defendants opposed the motion. ECF No. 157. 14 On July 11, 2022, Judge Battaglia granted Plaintiff’s motion and continued the pretrial 15 conference to September 15, 2022, requiring that the pretrial order be lodged by 16 September 8, 2022. ECF No. 160 at 3. The Court stressed that “there will be no further 17 continuances granted absent exceptional circumstances buttressed by detailed documentary 18 evidence showing why the deadlines cannot be met.” Id. at 2. 19 On September 6, 2022, the parties jointly filed another motion for continuance, 20 requesting that all pretrial deadlines, including the pretrial conference and deadline to lodge 21 the pretrial order, be continued by 30 days. ECF No. 165. The parties represented that “the 22 purpose of this request is to provide additional time for the parties to meet and confer in 23 order to prepare and file the Pre-Trial Order.” Id. at 2. On September 7, 2022, 24 Judge Battaglia granted the parties’ joint motion and continued the pretrial conference to 25 October 13, 2022, requiring that the pretrial order be lodged by October 6, 2022. ECF No. 26 166. In addition to continuing the deadlines, the Court stated that “the parties are 27 ORDERED to appear before the Magistrate Judge for preparation of the pre-trial order.” 28 Id. (emphasis in original); see also ECF No. 152 at 2 (“The Court encourages the parties 1 to consult with the assigned magistrate judge to resolve any problems in preparing the 2 proposed pretrial order.”). 3 On September 7, 2022, the undersigned set a status conference for 4 September 28, 2022, via videoconference, regarding the preparation of the pretrial order. 5 ECF No. 167. Before the conference, the Court had required the parties to submit their 6 “final draft of their Joint Pretrial Order” via email by September 19, 2022. Id. at 2. When 7 both parties failed to timely submit their draft, court staff reached out to both sides 8 numerous times in an attempt to get the parties to comply, to no avail. On 9 September 22, 2022, Plaintiff untimely submitted his portion of the pretrial order, and on 10 September 23, 2022, Defendants untimely submitted their portions of the pretrial order. 11 Neither portion was drafted in accordance with this district’s Civil Local Rules. 12 On September 28, 2022, the Court held a lengthy status conference with the parties. 13 ECF No. 168. The Court spoke at length with the parties about the preparation of the 14 pretrial order, and drafted a template based on the Local Rules to assist the parties in 15 completing their respective portions of the pretrial order. See ECF No. 172. The Court 16 included citations to the precise Local Rule subsection for each paragraph, and included 17 “Court instructions” of exactly what the parties needed to do, including links to the Ninth 18 Circuit Model Jury Instructions. Id. The undersigned instructed the parties to complete their 19 respective portions and set deadlines for doing so. ECF No. 170 (Plaintiff’s portion due 20 October 12, 2022, and Defendants’ portion due October 19, 2022). The Court vacated the 21 October 6, 2022, filing deadline for the pretrial order and the October 13, 2022, pretrial 22 conference, and scheduled an in-person status conference for October 21, 2022, to review 23 the parties’ disputes regarding the pretrial order. Id. at 3. The parties complied with the 24 Court’s deadlines and appeared for the in-person status conference. ECF No. 173. During 25 the lengthy in-person status conference on October 21, 2022, the Court heard oral argument 26 from both sides, and addressed each party’s position regarding each section of the pretrial 27 order. See ECF No. 175. 28 / / 1 II. LEGAL STANDARD 2 A scheduling order “may be modified only for good cause and with the judge’s 3 consent.” FED. R. CIV. P. 16(b)(4); ECF No. 145 at ¶ 15 (original scheduling order, stating 4 that “[t]he dates and times set forth herein will not be modified except for good cause 5 shown”); cf. Chmb.R. at 2 (stating that any request for continuance requires “[a] showing 6 of good cause for the request”). 7 A formal motion to modify the schedule is not required. See FED. R. CIV. P. 16, 8 advisory committee notes on 1983 amendments (“After consultation with the attorneys for 9 the parties and any unrepresented parties—a formal motion is not necessary—the court 10 may modify the schedule on a showing of good cause”); see, e.g., Moalem v. Int’l Spa 11 Ass’n, No. 2:18-cv-2341-GMN-NJK, 2020 WL 209308, at *1–2 (D. Nev. Jan. 13, 2020) 12 (finding good cause to amend scheduling order sua sponte and extend deadline for filing 13 summary judgment motions when neither party requested an extension); Hubbard v. 14 Thompson, No. 2:11-cv-1568-JAM-AC-P, 2013 U.S. Dist. LEXIS 91150, at *6–7 (E.D. 15 Cal. June 27, 2013) (referencing its “broad discretion to manage discovery” and sua sponte 16 modifying the scheduling order and dispositive motion deadline); accord Baroni v. 17 OneWest Bank, No. 1:12-bk-10986-MB, 2015 Bankr. LEXIS 2724, at *8–9 (Bankr. C.D. 18 Cal. Aug. 14, 2015) (sua sponte amending scheduling order to permit filing of a motion for 19 summary judgment, and collecting civil cases where courts modified scheduling orders sua 20 sponte). 21 III. DISCUSSION 22 After two lengthy conferences with the parties (ECF Nos. 168, 173), the Court finds 23 that the parties are unlikely to agree on a proposed pretrial order for submission to the 24 district judge. The undersigned is prepared to make a Report and Recommendation to the 25 district judge regarding a compromise pretrial order. However, upon due consideration, the 26 Court also finds that before proceeding to trial in this case, good cause exists to allow 27 Defendants to file a motion for summary judgment on all of Plaintiff’s claims. See FED. R. 28 CIV. P. 1 (courts should construe the Federal Rules “to secure the just, speedy, and 1 inexpensive determination of every action and proceeding”). Defendants’ new counsel in 2 this case entered an appearance on June 3, 2022 (ECF Nos. 152, 153), well after the 3 February 10, 2022, dispositive motion deadline passed. Further, without making any 4 findings on the merits, the undersigned notes that there are serious issues as to the viability 5 of Plaintiff’s copyright claims in light of the statute of limitations and the Court’s order 6 dismissing the other defendants on those grounds. See ECF No. 101. 7 The Court also notes that in Plaintiff’s proposed pretrial order and during his oral 8 argument, Plaintiff failed to articulate a basis for trial on his remaining claims. Compare 9 Email to Chambers (Oct. 12, 2022, at 11:46 PM) (Plaintiff’s proposed pretrial order, 10 Plaintiff solely included “these claims [3, 6, 11] are preserved to the extent possible”) with 11 CivLR 16.1(f)(6)(c)(2) (requiring that the pretrial order contain a “list of the causes of 12 action to be tried, referenced to the Complaint. For each cause of action, the order must 13 succinctly list the elements of the claim, damages and any defenses. A cause of action in 14 the Complaint which is not listed will be dismissed with prejudice.”). See also ECF No. 175 15 at 20:19–21:6 (“The Court: … on the list of causes of action to be tried, Mr. Martins, I see 16 that you [] provided the copyright claims, that you’re going to try those. For the other 17 claims, you state, ‘these claims are preserved to the extent possible.’ Since I don’t have 18 any information for pretrial, I’m assuming you don’t have any basis for bringing them to 19 trial. … Mr. Martins: That’s a very good question. A large amount of the claim is known 20 as an implied conspiracy. In order to meet those elements, there has to be more than two 21 parties involved and [] I don’t view the domestic partners, Josephson and Knohl, as being 22 two; they’re basically one. And so I felt that that [] I would not be able to present that”). 23 Thus, it would be most efficient for the Court to adjudicate these claims in whole or in part 24 before presenting them to a jury for trial. See Roberg v. One Day Doors & Closets, Inc., 25 No. 2:21-cv-SVW-JC, 2022 WL 3452792, at *1, *4 (C.D. Cal. July 7, 2022) (cancelling 26 trial date and ordering summary judgment briefing because, “when reviewing the parties’ 27 trial materials, the Court became concerned with the parties’ lack of preparedness and the 28 amorphous nature of Plaintiffs’ claims … The parties’ presentation at the [second] 1 conference deepened the Court’s concern[,] … it became apparent that Plaintiffs’ [] case 2 was not ready for trial.”); see also Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 3 1468, 1471 (9th Cir. 1994) (“The purpose of summary judgment is to avoid unnecessary 4 trials when there is no dispute as to the facts before the court”); cf. FED. R. CIV. 5 P. 16(c)(2)(E) (one of the issues to be considered at a pretrial conference is “determining 6 the appropriateness and timing of summary adjudication under Rule 56”). 7 Therefore, good cause appearing, the Court modifies the scheduling order sua sponte 8 to allow Defendants to file a motion for summary judgment on all of Plaintiff’s claims 9 before proceeding to trial in this case. See, e.g., Breakman v. Stubbs, No. 3:10-cv-487- 10 WGC, 2012 WL 1588293, at *5 (D. Nev. May 3, 2012) (“the dispositive motion deadline 11 set forth in the Scheduling Order has long since passed [], and Defendant did not timely 12 seek to modify the Scheduling Order with respect to an extension of the dispositive motion 13 deadline. [] However, the court recognizes that ‘[t]he purpose of summary judgment is to 14 avoid unnecessary trials when there is no dispute as to the facts before the court.’ [] … [I]t 15 appears that a trial with respect to the retaliation claim is indeed unnecessary. Accordingly, 16 the court will sua sponte modify the Scheduling Order to allow the late filing of [the 17 summary judgment] motion”) (internal citations omitted); accord Baroni, 2015 Bankr. 18 LEXIS 2724, at *8–12 (sua sponte amending scheduling order to permit the filing of a 19 summary judgment motion regarding a counterclaim instead of proceeding to trial, because 20 the previous court order on the summary judgment motion regarding the complaint was 21 indicative of the likely outcome of the motion regarding the counterclaim, noting that 22 “summary judgment is a particularly important tool for the avoidance of unnecessary trials 23 when no genuine issues of material fact have been raised.”) (internal quotations omitted). 24 IV. CONCLUSION 25 For the reasons set forth above, the Court ORDERS as follows: 26 1. Defendants must file their motion for summary judgment no later than 27 December 12, 2022. 28 1 2. Plaintiff must file his opposition! no later than January 9, 2023. 2 3. Defendants may file their reply no later than January 19, 2023. 3 4. A hearing on Defendants’ motion for summary judgment will be set for 4 || January 30, 2023 before the Honorable Anthony J. Battaglia. Upon completion of the 5 || briefing, Judge Battaglia will issue a Minute Order either (a) confirming the hearing and 6 || setting a time, or (b) vacating the hearing and taking the matter under submission pursuant 7 CivLR 7.1(d)(1). 8 5. After Judge Battaglia rules on Defendant’s motion for summary judgment, if 9 triable claims remain, the undersigned will reset the pretrial conference and will issue a 10 || Report and Recommendation for a compromise pretrial order. 11 12 IT IS SO ORDERED. 13 |}Dated: November 13, 2022 . 14 _ Atom H. Aywolr Honorable Allison H. Goddard 15 United States Magistrate Judge 16 17 18 || ————— 19 ||' Rule 56 explains what a party must do in order to oppose a Motion for Summary 20 Judgment. Generally, summary judgment must be granted when there is no genuine dispute as to any material fact—that is, if there is no real dispute about any fact that would affect 21 outcome of the case, the party who asked for summary judgments entitled to judgment 99 as a matter of law, which will end the case. When a defendant makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), the plaintiff 23 || cannot simply rely on what the complaint says. Instead, the plaintiff must set out specific facts in affidavits or declarations, depositions, admissions, interrogatory answers, or other authenticated documents, as provided by Rule 56(c), that contradict the facts shown in the 25 || defendant’s declarations and documents and show that a material fact is genuinely disputed 5 and requires trial. If a plaintiff does not submit his or its own evidence in opposition, 6 summary judgment, if appropriate, may be entered against the plaintiff. If summary 27 ||judgment is granted, the case will be dismissed and there will be no trial. See cf. Rand v. 28 Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).