1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH MIRABELLI, an Case No.: 3:23-cv-00768-BEN-VET individual, et al., 12 SECOND AMENDED SCHEDULING Plaintiffs, 13 ORDER REGULATING v. DISCOVERY AND OTHER PRE- 14 TRIAL PROCEEDINGS MARK OLSON, in his official capacity as 15 President of the EUSD Board of 16 Education, et al., [Doc. No. 176] 17 Defendants. 18 19 20 Before the Court is the parties’ Joint Motion to Modify the First Amended 21 Scheduling Order and Request for Status Conference Before Magistrate Judge (“Joint 22 Motion”). Doc. No. 176. Therein, the parties jointly seek to extend the fact discovery cutoff 23 and subsequent deadlines but disagree on the appropriate length of an extension. Id. at 2. 24 Since the parties do not agree on this point, Defendants request a status conference to 25 discuss the matter. Id. The parties each separately propose new dates for remaining 26 deadlines, ranging in extensions of four (4) weeks to twenty-five (25) weeks. Id. at 4–8. In 27 support of the extension, the parties represent that new Plaintiffs proceeding 28 pseudonymously present a hurdle to discovery and that a protective order is necessary. Id. 1 at 2. The parties further represent that they are engaged in meet and confer efforts to draft 2 such a protective order. Id. The parties also reference a pending motion to dismiss and 3 upcoming holidays. Id. at 2. Finally, counsel for each party submitted a declaration in 4 support of their proposed dates. Doc. Nos. 176-1, 176-2, 177, 178. This is the parties’ 5 second request to extend fact discovery. See Doc. No. 131. 6 I. LEGAL STANDARD 7 In determining whether to modify a scheduling order, the Court considers the “good 8 cause” standard set forth in Federal Rule of Civil Procedure 16(b)(4). Fed. R. Civ. P. 9 16(b)(4). Pursuant to Rule 16(b)(4), a “schedule may be modified only for good cause and 10 with the judge’s consent.” Id. (emphasis added); Zivkovic v. S. Cal. Edison Co., 302 F.3d 11 1080, 1087 (9th Cir. 2002) (“the pretrial scheduling order can only be modified upon a 12 showing of good cause”). Rule 16(b)(4)’s “good cause” standard “primarily considers the 13 diligence of the party seeking the amendment.” Learjet, Inc. v. Oneok, Inc. (In re W. States 14 Wholesale Natural Gas Antitrust Litig.), 715 F.3d 716, 737 (9th Cir. 2013). “The district 15 court may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence 16 of the party seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 17 609 (9th Cir. 1992) (citing to Fed. R. Civ. P. 16 advisory committee’s notes on the 1983 18 amendment); see also Zivkovic, 302 F.3d at 1087; 6A Wright, Miller & Kane, Federal 19 Practice and Procedure § 1522.1 at 231 (2d ed. 1990) (“good cause” means scheduling 20 deadlines cannot be met despite party’s diligence). “[C]arelessness is not compatible with 21 a finding of diligence and offers no reason for a grant of relief.” Johnson, 975 F.2d at 609. 22 The focus of the inquiry is upon the moving party’s reasons for seeking modification. Id.; 23 Adrian v. OneWest Bank, FSB, 686 F. App’x 403, 405 (9th Cir. 2017) (applied to joint 24 motions); Neidermeyer v. Caldwell, 718 F. App’x 485, 489 (9th Cir. 2017) (moving party 25 did not show good cause when he “offered no explanation for his undue delay”). 26 Further, the required showing of diligence is measured by conduct displayed 27 throughout the period of time already allowed. See, e.g., Muniz v. United Parcel Serv., Inc., 28 731 F. Supp. 2d 961, 967 (N.D. Cal. 2010); Krohne Fund, LP v. Simonsen, 681 F. App’x 1 635, 638 (9th Cir. 2017); Lyles v. Dollar Rent a Car, Inc., 849 F. App’x 659, 661 (9th Cir. 2 2021). “If [the moving] party was not diligent, the inquiry should end.” Johnson, 975 F.2d 3 at 609; Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017) 4 (same). 5 Civil Local Rule 16.1(b) also requires that all counsel “proceed with diligence to 6 take all steps necessary to bring an action to readiness for trial.” CivLR 16.1(b). Similarly, 7 this Court’s Civil Chambers Rules require that any motion to continue a scheduling order 8 deadline include a showing of good cause, supported by a “declaration from counsel that 9 details steps taken by the parties to meet current deadlines and reasons why the parties can 10 no longer meet those deadlines.” J. Torres Civ. Chambers R. VI.D. 11 II. DISCUSSION 12 The Court agrees that an extension of fact discovery and other case deadlines is 13 appropriate given the challenges associated with newly joined parties, including Plaintiffs 14 proceeding pseudonymously. However, the Court does not agree that an extension of more 15 than three (3) months is presently necessary. Counsel for Defendant Rob Bonta, advocating 16 for a roughly six (6) month extension, does not describe any efforts to pursue discovery 17 and suggests that the lack of a Rule 26(f) conference with Plaintiffs and a pending motion 18 to dismiss prevent discovery. Doc. No. 178 at 2. The Court disagrees—neither justifies, at 19 this time, extending all case deadlines by six months. Moreover, potential discovery delays 20 due to upcoming holidays similarly do not justify such a lengthy extension. Id. at 3. 21 Other defendants propose a four (4) month extension. Id. at 4–6. In addition to 22 challenges regarding discovery from pseudonymous Plaintiffs, they also generally 23 reference upcoming holidays as a hurdle to discovery. Doc. No. 176-1 at 2–3. Again, 24 holidays occurring during the discovery period do not warrant delaying the case for several 25 months, particularly when the discovery period will include over two months in the new 26 calendar year. 27 Therefore, based on a review of the Joint Motion and record, and good cause 28 appearing, the Court GRANTS IN PART the Joint Motion. The Court will provide an 1 approximately three-month extension for all remaining case deadlines. The request for a 2 Status Conference is DENIED WITHOUT PREJUDICE. The parties should continue to 3 move this case forward, and if the deadlines require further adjustment based on future 4 events, the parties may move for relief at that time. The Court hereby ORDERS the 5 following: 6 III. SECOND AMENDED SCHEDULING ORDER 7 1. All remaining dates and deadlines set forth in the Court’s First Amended 8 Scheduling Order, dated October 9, 2024, are hereby VACATED. See Doc. No. 161. 9 2. Defendant Bonta shall meet and confer with Plaintiffs pursuant to Federal 10 Rule of Civil Procedure 26(f) no later than November 27, 2024; 11 3. All fact discovery shall be completed by all parties by February 14, 2025. 12 “Completed” means that all discovery under Fed. R. Civ. P. 30-36, and discovery 13 subpoenas under Fed. R. Civ. P. 45, must be initiated a sufficient period of time in advance 14 of the cut-off date, so that it may be completed by the cut-off date, taking into account the 15 times for service, notice, and response as set forth in the
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH MIRABELLI, an Case No.: 3:23-cv-00768-BEN-VET individual, et al., 12 SECOND AMENDED SCHEDULING Plaintiffs, 13 ORDER REGULATING v. DISCOVERY AND OTHER PRE- 14 TRIAL PROCEEDINGS MARK OLSON, in his official capacity as 15 President of the EUSD Board of 16 Education, et al., [Doc. No. 176] 17 Defendants. 18 19 20 Before the Court is the parties’ Joint Motion to Modify the First Amended 21 Scheduling Order and Request for Status Conference Before Magistrate Judge (“Joint 22 Motion”). Doc. No. 176. Therein, the parties jointly seek to extend the fact discovery cutoff 23 and subsequent deadlines but disagree on the appropriate length of an extension. Id. at 2. 24 Since the parties do not agree on this point, Defendants request a status conference to 25 discuss the matter. Id. The parties each separately propose new dates for remaining 26 deadlines, ranging in extensions of four (4) weeks to twenty-five (25) weeks. Id. at 4–8. In 27 support of the extension, the parties represent that new Plaintiffs proceeding 28 pseudonymously present a hurdle to discovery and that a protective order is necessary. Id. 1 at 2. The parties further represent that they are engaged in meet and confer efforts to draft 2 such a protective order. Id. The parties also reference a pending motion to dismiss and 3 upcoming holidays. Id. at 2. Finally, counsel for each party submitted a declaration in 4 support of their proposed dates. Doc. Nos. 176-1, 176-2, 177, 178. This is the parties’ 5 second request to extend fact discovery. See Doc. No. 131. 6 I. LEGAL STANDARD 7 In determining whether to modify a scheduling order, the Court considers the “good 8 cause” standard set forth in Federal Rule of Civil Procedure 16(b)(4). Fed. R. Civ. P. 9 16(b)(4). Pursuant to Rule 16(b)(4), a “schedule may be modified only for good cause and 10 with the judge’s consent.” Id. (emphasis added); Zivkovic v. S. Cal. Edison Co., 302 F.3d 11 1080, 1087 (9th Cir. 2002) (“the pretrial scheduling order can only be modified upon a 12 showing of good cause”). Rule 16(b)(4)’s “good cause” standard “primarily considers the 13 diligence of the party seeking the amendment.” Learjet, Inc. v. Oneok, Inc. (In re W. States 14 Wholesale Natural Gas Antitrust Litig.), 715 F.3d 716, 737 (9th Cir. 2013). “The district 15 court may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence 16 of the party seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 17 609 (9th Cir. 1992) (citing to Fed. R. Civ. P. 16 advisory committee’s notes on the 1983 18 amendment); see also Zivkovic, 302 F.3d at 1087; 6A Wright, Miller & Kane, Federal 19 Practice and Procedure § 1522.1 at 231 (2d ed. 1990) (“good cause” means scheduling 20 deadlines cannot be met despite party’s diligence). “[C]arelessness is not compatible with 21 a finding of diligence and offers no reason for a grant of relief.” Johnson, 975 F.2d at 609. 22 The focus of the inquiry is upon the moving party’s reasons for seeking modification. Id.; 23 Adrian v. OneWest Bank, FSB, 686 F. App’x 403, 405 (9th Cir. 2017) (applied to joint 24 motions); Neidermeyer v. Caldwell, 718 F. App’x 485, 489 (9th Cir. 2017) (moving party 25 did not show good cause when he “offered no explanation for his undue delay”). 26 Further, the required showing of diligence is measured by conduct displayed 27 throughout the period of time already allowed. See, e.g., Muniz v. United Parcel Serv., Inc., 28 731 F. Supp. 2d 961, 967 (N.D. Cal. 2010); Krohne Fund, LP v. Simonsen, 681 F. App’x 1 635, 638 (9th Cir. 2017); Lyles v. Dollar Rent a Car, Inc., 849 F. App’x 659, 661 (9th Cir. 2 2021). “If [the moving] party was not diligent, the inquiry should end.” Johnson, 975 F.2d 3 at 609; Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017) 4 (same). 5 Civil Local Rule 16.1(b) also requires that all counsel “proceed with diligence to 6 take all steps necessary to bring an action to readiness for trial.” CivLR 16.1(b). Similarly, 7 this Court’s Civil Chambers Rules require that any motion to continue a scheduling order 8 deadline include a showing of good cause, supported by a “declaration from counsel that 9 details steps taken by the parties to meet current deadlines and reasons why the parties can 10 no longer meet those deadlines.” J. Torres Civ. Chambers R. VI.D. 11 II. DISCUSSION 12 The Court agrees that an extension of fact discovery and other case deadlines is 13 appropriate given the challenges associated with newly joined parties, including Plaintiffs 14 proceeding pseudonymously. However, the Court does not agree that an extension of more 15 than three (3) months is presently necessary. Counsel for Defendant Rob Bonta, advocating 16 for a roughly six (6) month extension, does not describe any efforts to pursue discovery 17 and suggests that the lack of a Rule 26(f) conference with Plaintiffs and a pending motion 18 to dismiss prevent discovery. Doc. No. 178 at 2. The Court disagrees—neither justifies, at 19 this time, extending all case deadlines by six months. Moreover, potential discovery delays 20 due to upcoming holidays similarly do not justify such a lengthy extension. Id. at 3. 21 Other defendants propose a four (4) month extension. Id. at 4–6. In addition to 22 challenges regarding discovery from pseudonymous Plaintiffs, they also generally 23 reference upcoming holidays as a hurdle to discovery. Doc. No. 176-1 at 2–3. Again, 24 holidays occurring during the discovery period do not warrant delaying the case for several 25 months, particularly when the discovery period will include over two months in the new 26 calendar year. 27 Therefore, based on a review of the Joint Motion and record, and good cause 28 appearing, the Court GRANTS IN PART the Joint Motion. The Court will provide an 1 approximately three-month extension for all remaining case deadlines. The request for a 2 Status Conference is DENIED WITHOUT PREJUDICE. The parties should continue to 3 move this case forward, and if the deadlines require further adjustment based on future 4 events, the parties may move for relief at that time. The Court hereby ORDERS the 5 following: 6 III. SECOND AMENDED SCHEDULING ORDER 7 1. All remaining dates and deadlines set forth in the Court’s First Amended 8 Scheduling Order, dated October 9, 2024, are hereby VACATED. See Doc. No. 161. 9 2. Defendant Bonta shall meet and confer with Plaintiffs pursuant to Federal 10 Rule of Civil Procedure 26(f) no later than November 27, 2024; 11 3. All fact discovery shall be completed by all parties by February 14, 2025. 12 “Completed” means that all discovery under Fed. R. Civ. P. 30-36, and discovery 13 subpoenas under Fed. R. Civ. P. 45, must be initiated a sufficient period of time in advance 14 of the cut-off date, so that it may be completed by the cut-off date, taking into account the 15 times for service, notice, and response as set forth in the Federal Rules of Civil Procedure. 16 Counsel shall promptly and in good faith meet and confer regarding all discovery disputes 17 in compliance with Local Rule 26.1(a). The Court expects counsel to make every effort to 18 resolve all disputes without court intervention through the meet and confer process. If the 19 parties reach an impasse on any discovery issue, counsel shall follow the procedures 20 governing discovery disputes set forth in Judge Torres’ Civil Chambers Rules. A failure 21 to comply in this regard will result in a waiver of a party’s discovery issue. Absent an 22 order of the Court, no stipulation continuing or altering this requirement will be 23 recognized by the Court. 24 25 26 27 28 1 4. A Mandatory Settlement Conference (“MSC”) shall be conducted by Zoom 2 video conferencing on February 18, 2025 at 9:30 a.m. before Magistrate Judge Valerie E. 3 Torres.1 4 a. The following are mandatory procedures to be followed in preparation for 5 the MSC. Absent express permission from this Court, counsel must timely comply with 6 the dates and deadlines herein. Questions regarding the MSC or the mandatory guidelines 7 set forth herein may be directed to Judge Torres’ Chambers at (619) 557-6384. 8 b. Full Settlement Authority Required. Pursuant to Local Rule 16.1.c.1, all 9 parties, party representatives, including claims adjusters for insured parties, and the 10 principal attorney(s) responsible for the litigation must participate in the MSC.2 This 11 appearance must be made with full and complete authority to negotiate and enter into a 12 binding settlement.3 Counsel for a government entity is excused from this requirement if 13 the government attorney who participates in the MSC (i) has primary responsibility for 14 handling the case, and (ii) may negotiate settlement offers that the attorney is willing to 15 recommend to the government official having ultimate settlement authority. 16 17 18 1 Counsel may request the MSC be converted to an in-person appearance through a joint 19 call or email to Judge Torres’ Chambers (efile_torres@casd.uscourts.gov). Counsel must meet and confer prior to making such a request. 20 2 The attendance requirement includes parties that are indemnified by others. Any 21 deviation from this Order requires prior Court approval. 22 3 Full authority to settle means that the individuals at the MSC are authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable 23 to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th 24 Cir. 1989). Party participants need to have “unfettered discretion and authority” to change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 25 485-486 (D. Ariz. 2003). One of the purposes of requiring a person with complete 26 settlement authority to attend the conference is that the person’s view of the case may be altered during the face-to-face conference. Id. at 486. Limited or sum certain 27 authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th 28 Cir. 2001). 1 c. Confidential Settlement Brief. No later than seven (7) calendar days 2 before the MSC, each party must lodge a Confidential Settlement Brief by email to 3 efile_torres@casd.uscourts.gov. The Confidential Settlement Brief should not exceed ten 4 (10) pages, excluding exhibits, and must be formatted according to the requirements of 5 Local Rule 5.1(a). Parties attaching exhibits must attach only the relevant pages of multi- 6 page exhibits and must highlight the relevant portions. 7 d. Contents of Settlement Brief. All Confidential Settlement Briefs shall 8 include the content specified in the Court’s Chambers Rules, available at 9 https://www.casd.uscourts.gov/Judges/torres/docs/Civil%20Chambers%20Rules.pdf. 10 e. Procedure for Zoom Videoconference. Two (2) business days prior to 11 the MSC, the Court will email counsel of record an invitation with the Zoom meeting 12 information. Participants can join the Zoom video conference by following the ZoomGov 13 Meeting hyperlink or using the meeting ID and password provided. Each participant should 14 plan to join the Zoom video conference at least five (5) minutes before the start of the 15 MSC. Counsel is responsible for ensuring their clients can participate in the MSC. All 16 participants must display the same level of professionalism and attention during the MSC 17 as if they were attending in person (e.g., not be driving while speaking to the Court, or 18 otherwise distracted). 19 5. The parties shall designate their respective experts in writing by 20 March 20, 2025. The parties must identify any person who may be used at trial to present 21 evidence pursuant to Fed. R. Evid. 702, 703 or 705. This requirement is not limited to 22 retained experts. The parties shall designate rebuttal experts in writing by 23 April 3, 2025. The written expert designations shall include the name, address and 24 telephone number of the expert and a reasonable summary of the testimony the expert is 25 expected to provide, including any summary of facts and opinions required by Fed. R. Civ. 26 P. 26(a)(2)(C). The designations shall also include the normal rates the expert charges for 27 deposition and trial testimony. 28 1 6. By May 1, 2025, each party shall comply with the disclosure provisions in 2 Fed. R. Civ. P. 26(a)(2)(A) and (B). This disclosure requirement applies to all persons 3 retained or specially employed to provide expert testimony, or whose duties as an employee 4 of the party regularly involve giving expert testimony. Except as provided in the paragraph 5 below, any party that fails to make these disclosures shall not, absent substantial 6 justification, be permitted to use evidence or testimony not disclosed at any hearing or at 7 the time of trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ. 8 P. 37(c). 9 7. Any party shall supplement its disclosure regarding contradictory or rebuttal 10 evidence under Fed. R. Civ. P. 26(a)(2)(D) and 26(e) by May 15, 2025. 11 8. All expert discovery shall be completed by all parties by June 16, 2025. The 12 parties shall comply with the same procedures set forth in the paragraph governing fact 13 discovery. Failure to comply with this section or any other discovery order of the court 14 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 15 the introduction of experts or other designated matters in evidence. 16 9. All pre-trial motions must be filed by July 16, 2025. Counsel for the moving 17 party must obtain a motion hearing date from the law clerk of the judge who will hear the 18 motion. The period of time between the date you request a motion date and the hearing 19 date may vary from one district judge to another. Please plan accordingly. Failure to make 20 a timely request for a motion date may result in the motion not being heard. Deadlines for 21 filing motions in limine will be set by the district judge at the Pretrial Conference. 22 10. When filing a Motion for Summary Judgment and/or Adjudication, the parties 23 need not file a separate statement of material facts absent prior leave of the court. 24 11. For bench trials before the Honorable Roger T. Benitez, counsel shall file their 25 Memoranda of Contentions of Fact and Law and take any other action required by Local 26 Rule 16.1(f)(2) by October 13, 2025. 27 28 1 12. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 2 Civ. P. 26(a)(3) by October 13, 2025. Failure to comply with these disclosure requirements 3 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 4 13. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 5 October 20, 2025. At this meeting, counsel shall discuss and attempt to enter into 6 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 7 exchange copies and/or display all exhibits other than those to be used for impeachment. 8 The exhibits shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall 9 note any objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. 10 P. 26(a)(3). Counsel shall cooperate in the preparation of the proposed pretrial conference 11 order. 12 14. Counsel for plaintiff will be responsible for preparing the pretrial order and 13 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By 14 October 27, 2025, plaintiff’s counsel must provide opposing counsel with the proposed 15 pretrial order for review and approval. Opposing counsel must communicate promptly with 16 plaintiff’s counsel concerning any objections to form or content of the pretrial order, and 17 both parties shall attempt promptly to resolve their differences, if any, concerning the order. 18 15. The Proposed Final Pretrial Conference Order, including objections to any 19 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served, and 20 lodged with the assigned district judge by November 3, 2025, and shall be in the form 21 prescribed in and comply with Local Rule 16.1(f)(6). 22 16. The final Pretrial Conference is scheduled on the calendar of the Honorable 23 Roger T. Benitez on November 10, 2025 at 10:30 a.m.. 24 17. The parties must review the chambers’ rules for the assigned district judge 25 and magistrate judge. 26 18. A post-trial settlement conference before a magistrate judge may be held 27 within 30 days of verdict in the case. 28 1 19. The dates and times set forth herein will not be modified except for good cause 2 || shown. 3 20. Briefs or memoranda in support of or in opposition to any pending motion 4 not exceed twenty-five (25) pages in length without leave of a district court judge. No 5 ||reply memorandum shall exceed ten (10) pages without leave of a district court judge. 6 || Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 7 a table of authorities cited. 8 21. Plaintiff's counsel shall serve a copy of this order on all parties that enter this 9 || case hereafter. 10 IT IS SO ORDERED.
Dated: November 14, 2024 (Wea Honorable Valerie E. Torres 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28