1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 NATIONAL PUBLIC RADIO, INC. and Case No.: 3:21-cv-01079-MMA-AHG GRAHAM SMITH, 11 ORDER RESOLVING OPPOSED Plaintiffs, 12 JOINT MOTION AND GRANTING v. PLAINTIFFS’ MOTION TO 13 VACATE BRIEFING SCHEDULE U.S. CENTRAL COMMAND and 14 U.S. DEPARTMENT OF DEFENSE, [ECF No. 26] 15 Defendants. 16 17 18 19 Before the Court is the parties’ opposed joint motion regarding the briefing schedule 20 set forth in the Amended Scheduling Order (ECF No. 21). ECF No. 26. Plaintiffs seek to 21 vacate the remaining summary judgment briefing schedule deadlines, which Defendants 22 oppose. Id. 23 I. BACKGROUND 24 After the second Early Neutral Evaluation Conference in this matter on 25 February 16, 2022, and after issuing a mediator’s proposal that was not accepted by all 26 parties, the Court issued the operative Amended Scheduling Order, which set a briefing 27 schedule for cross-motions for summary judgment. ECF Nos. 20, 21. The Court issued the 28 following briefing schedule: 1 (1) Defendants must file their Motion for Summary Judgment by April 6, 2022. 2 (2) Plaintiffs must file their Opposition to Defendants’ summary judgment 3 motion and their Cross-Motion for Summary Judgment by May 6, 2022. (3) Defendants must file a Reply in support of their summary judgment 4 motion and their Opposition to Plaintiffs’ cross-motion by June 6, 2022. 5 (4) Plaintiffs must file a Reply in support of their cross-motion by June 21, 2022. 6 (5) A hearing on the Defendants’ Motion for Summary Judgment and 7 Plaintiffs’ Cross-Motion for Summary Judgment will be held on July 11, 2022 before the Honorable Michael M. Anello. 8
9 ECF No. 21 at 1–2 (emphasis omitted). Defendants filed their motion for summary 10 judgment on April 6, 2022. ECF No. 23. On April 20, 2022, pursuant to this Court’s 11 Chambers Rules (see Chmb.R. at 2), the parties filed the instant opposed joint motion. ECF 12 No. 26. This Order follows. 13 II. LEGAL STANDARD 14 Parties seeking to continue deadlines in the scheduling order must demonstrate good 15 cause. FED. R. CIV. P. 16(b)(4) (“A schedule may be modified only for good cause and with 16 the judge’s consent”); ECF No. 21 at 5 (Amended Scheduling Order, stating that “[t]he 17 dates set forth herein will not be modified except for good cause shown”); see also 18 Chmb.R. at 2 (stating that any request for continuance requires “[a] showing of good cause 19 for the request”). 20 Courts have broad discretion in determining whether there is good cause. See, e.g., 21 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). “Good cause” 22 is a non-rigorous standard that has been construed broadly across procedural and statutory 23 contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The 24 good cause standard focuses on the diligence of the party seeking to amend the scheduling 25 order and the reasons for seeking modification. Johnson, 975 F.2d at 609 (“[T]he focus of 26 the inquiry is upon the moving party’s reasons for seeking modification. . . . If that party 27 was not diligent, the inquiry should end.”) (internal citation omitted). 28 / / 1 III. DISCUSSION 2 Plaintiffs contend that they had “understood that Defendants’ summary judgment 3 motion would argue that CENTCOM’s two searches preceding the Second ENE satisfied 4 its FOIA obligations, and began to prepare its cross-motion based on that understanding.” 5 ECF No. 26-1 at 3.1 However, in Defendants’ motion for summary judgment (ECF No. 6 23), Plaintiffs “learned for the first time that CENTCOM has been conducting a third search 7 and review process since February 16, 2022.” ECF No. 26-1 at 3. Therefore, Plaintiffs 8 argue that “the [summary judgment m]otion does not state what search terms CENTCOM 9 is using and what databases it is searching, which prevents NPR from assessing 10 CENTCOM’s compliance and meaningfully addressing in its opposition, the 11 reasonableness of the agency’s efforts to comply with FOIA. … Nor does the Motion state 12 when the third search will be complete, leaving open the possibility that CENTCOM could 13 release additional responsive records that might moot summary judgment after NPR has 14 filed its opposition and cross-motion, or require further rounds of summary judgment 15 pleadings.” Id. Further, Plaintiff contends that “[e]ven if NPR agreed that CENTCOM’s 16 third search is targeting the appropriate search terms and databases captured in its FOIA 17 request, summary judgment on the current schedule would still be premature because NPR 18 may need to challenge CENTCOM’s exemptions to any documents resulting from the third 19 search.” Id. Thus, since “a second round of summary judgment … would be an inefficient 20 use of the Court’s and the parties’ time and resources,” Plaintiffs seek an Order from the 21 Court (1) vacating the current briefing schedule and (2) requiring the parties to file a joint 22 status report regarding the third search and proposed new scheduling deadlines. Id. at 4. 23 Defendants explain that the third search to which Plaintiffs refer was initiated in 24 order to evaluate the Court’s supplemental search term mediator’s proposal, and though 25 26 27 1 Due to discrepancies between original and imprinted page numbers, page numbers for docketed materials cited in this Order refer to those imprinted by the court’s electronic case 28 1 the proposal was not accepted by all parties, “CENTCOM opted to complete the search 2 once underway … and [would] voluntarily notify the Court and parties if additional 3 responsive records were identified.” ECF No. 26-1 at 5; see also id. at 6 (“when that 4 proposal was not accepted by all parties CENTCOM chose to moot foreseeable complaints 5 by completing the pending search and volunteering to disclose any new responsive records 6 anyway”). In response to Plaintiffs’ allegations that they do not know what search terms 7 are being used in the third search, Defendants explain that the search terms being used are 8 from the Mediator’s Proposal, which both sides had access to. Id. at 6. Further, Defendants 9 contend that their motion for summary judgment is “is expressly based on facts presented 10 well before the Mediator’s Proposal” and the third search conducted after the February 16 11 second ENE is “procedurally relevant but not necessary for summary judgment in either 12 party’s favor, nor is it material to Plaintiffs’ opposition to the pending motion.” Id. 13 Defendants reiterate that Plaintiffs are able to timely file their opposition and cross-motion 14 because “Plaintiffs were in possession of the responsive documents warranting summary 15 judgment long before [the third search].” Id. Defendants state that Plaintiffs are essentially 16 seeking an indefinite stay in proceedings, and propose instead that the Court either (1) 17 permit Defendants to end the third search if “Plaintiff is precluded from subsequent 18 reference or objection to doing so,” or (2) permit a mutual extension of briefing schedule 19 deadlines to dates certain. Id. at 7. 20 The Court has reviewed the joint motion, as well as Defendants’ motion for summary 21 judgment, and has considered the arguments of both sides. To avoid piecemeal issues on 22 summary judgment, the Court finds that the briefing schedule should be vacated so that the 23 Government’s search and production can be completed. Thus, good cause appearing, 24 Plaintiffs’ motion is GRANTED. The remaining deadlines set forth in the Court’s 25 Amended Scheduling Order (ECF No. 21), including the July 11, 2022 hearing before 26 Judge Anello, are VACATED.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 NATIONAL PUBLIC RADIO, INC. and Case No.: 3:21-cv-01079-MMA-AHG GRAHAM SMITH, 11 ORDER RESOLVING OPPOSED Plaintiffs, 12 JOINT MOTION AND GRANTING v. PLAINTIFFS’ MOTION TO 13 VACATE BRIEFING SCHEDULE U.S. CENTRAL COMMAND and 14 U.S. DEPARTMENT OF DEFENSE, [ECF No. 26] 15 Defendants. 16 17 18 19 Before the Court is the parties’ opposed joint motion regarding the briefing schedule 20 set forth in the Amended Scheduling Order (ECF No. 21). ECF No. 26. Plaintiffs seek to 21 vacate the remaining summary judgment briefing schedule deadlines, which Defendants 22 oppose. Id. 23 I. BACKGROUND 24 After the second Early Neutral Evaluation Conference in this matter on 25 February 16, 2022, and after issuing a mediator’s proposal that was not accepted by all 26 parties, the Court issued the operative Amended Scheduling Order, which set a briefing 27 schedule for cross-motions for summary judgment. ECF Nos. 20, 21. The Court issued the 28 following briefing schedule: 1 (1) Defendants must file their Motion for Summary Judgment by April 6, 2022. 2 (2) Plaintiffs must file their Opposition to Defendants’ summary judgment 3 motion and their Cross-Motion for Summary Judgment by May 6, 2022. (3) Defendants must file a Reply in support of their summary judgment 4 motion and their Opposition to Plaintiffs’ cross-motion by June 6, 2022. 5 (4) Plaintiffs must file a Reply in support of their cross-motion by June 21, 2022. 6 (5) A hearing on the Defendants’ Motion for Summary Judgment and 7 Plaintiffs’ Cross-Motion for Summary Judgment will be held on July 11, 2022 before the Honorable Michael M. Anello. 8
9 ECF No. 21 at 1–2 (emphasis omitted). Defendants filed their motion for summary 10 judgment on April 6, 2022. ECF No. 23. On April 20, 2022, pursuant to this Court’s 11 Chambers Rules (see Chmb.R. at 2), the parties filed the instant opposed joint motion. ECF 12 No. 26. This Order follows. 13 II. LEGAL STANDARD 14 Parties seeking to continue deadlines in the scheduling order must demonstrate good 15 cause. FED. R. CIV. P. 16(b)(4) (“A schedule may be modified only for good cause and with 16 the judge’s consent”); ECF No. 21 at 5 (Amended Scheduling Order, stating that “[t]he 17 dates set forth herein will not be modified except for good cause shown”); see also 18 Chmb.R. at 2 (stating that any request for continuance requires “[a] showing of good cause 19 for the request”). 20 Courts have broad discretion in determining whether there is good cause. See, e.g., 21 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). “Good cause” 22 is a non-rigorous standard that has been construed broadly across procedural and statutory 23 contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The 24 good cause standard focuses on the diligence of the party seeking to amend the scheduling 25 order and the reasons for seeking modification. Johnson, 975 F.2d at 609 (“[T]he focus of 26 the inquiry is upon the moving party’s reasons for seeking modification. . . . If that party 27 was not diligent, the inquiry should end.”) (internal citation omitted). 28 / / 1 III. DISCUSSION 2 Plaintiffs contend that they had “understood that Defendants’ summary judgment 3 motion would argue that CENTCOM’s two searches preceding the Second ENE satisfied 4 its FOIA obligations, and began to prepare its cross-motion based on that understanding.” 5 ECF No. 26-1 at 3.1 However, in Defendants’ motion for summary judgment (ECF No. 6 23), Plaintiffs “learned for the first time that CENTCOM has been conducting a third search 7 and review process since February 16, 2022.” ECF No. 26-1 at 3. Therefore, Plaintiffs 8 argue that “the [summary judgment m]otion does not state what search terms CENTCOM 9 is using and what databases it is searching, which prevents NPR from assessing 10 CENTCOM’s compliance and meaningfully addressing in its opposition, the 11 reasonableness of the agency’s efforts to comply with FOIA. … Nor does the Motion state 12 when the third search will be complete, leaving open the possibility that CENTCOM could 13 release additional responsive records that might moot summary judgment after NPR has 14 filed its opposition and cross-motion, or require further rounds of summary judgment 15 pleadings.” Id. Further, Plaintiff contends that “[e]ven if NPR agreed that CENTCOM’s 16 third search is targeting the appropriate search terms and databases captured in its FOIA 17 request, summary judgment on the current schedule would still be premature because NPR 18 may need to challenge CENTCOM’s exemptions to any documents resulting from the third 19 search.” Id. Thus, since “a second round of summary judgment … would be an inefficient 20 use of the Court’s and the parties’ time and resources,” Plaintiffs seek an Order from the 21 Court (1) vacating the current briefing schedule and (2) requiring the parties to file a joint 22 status report regarding the third search and proposed new scheduling deadlines. Id. at 4. 23 Defendants explain that the third search to which Plaintiffs refer was initiated in 24 order to evaluate the Court’s supplemental search term mediator’s proposal, and though 25 26 27 1 Due to discrepancies between original and imprinted page numbers, page numbers for docketed materials cited in this Order refer to those imprinted by the court’s electronic case 28 1 the proposal was not accepted by all parties, “CENTCOM opted to complete the search 2 once underway … and [would] voluntarily notify the Court and parties if additional 3 responsive records were identified.” ECF No. 26-1 at 5; see also id. at 6 (“when that 4 proposal was not accepted by all parties CENTCOM chose to moot foreseeable complaints 5 by completing the pending search and volunteering to disclose any new responsive records 6 anyway”). In response to Plaintiffs’ allegations that they do not know what search terms 7 are being used in the third search, Defendants explain that the search terms being used are 8 from the Mediator’s Proposal, which both sides had access to. Id. at 6. Further, Defendants 9 contend that their motion for summary judgment is “is expressly based on facts presented 10 well before the Mediator’s Proposal” and the third search conducted after the February 16 11 second ENE is “procedurally relevant but not necessary for summary judgment in either 12 party’s favor, nor is it material to Plaintiffs’ opposition to the pending motion.” Id. 13 Defendants reiterate that Plaintiffs are able to timely file their opposition and cross-motion 14 because “Plaintiffs were in possession of the responsive documents warranting summary 15 judgment long before [the third search].” Id. Defendants state that Plaintiffs are essentially 16 seeking an indefinite stay in proceedings, and propose instead that the Court either (1) 17 permit Defendants to end the third search if “Plaintiff is precluded from subsequent 18 reference or objection to doing so,” or (2) permit a mutual extension of briefing schedule 19 deadlines to dates certain. Id. at 7. 20 The Court has reviewed the joint motion, as well as Defendants’ motion for summary 21 judgment, and has considered the arguments of both sides. To avoid piecemeal issues on 22 summary judgment, the Court finds that the briefing schedule should be vacated so that the 23 Government’s search and production can be completed. Thus, good cause appearing, 24 Plaintiffs’ motion is GRANTED. The remaining deadlines set forth in the Court’s 25 Amended Scheduling Order (ECF No. 21), including the July 11, 2022 hearing before 26 Judge Anello, are VACATED. In consideration of Defendants’ request to avoid an 27 indefinite stay in the matter, the Court SETS a Status Conference via videoconference for 28 May 10, 2022 at 2:00 p.m. before Magistrate Judge Allison H. Goddard. Counsel are 1 required to attend; clients are welcome, but not required. The parties must send the Court 2 a joint status update and proposed schedule via email (to 3 efile_goddard@casd.uscourts.gov) (not filed) by May 6, 2022. To facilitate the 4 videoconference: 5 a. The Court will use its official Zoom video conferencing account to hold 6 the Status Conference. If you are unfamiliar with Zoom: Zoom is available on 7 computers through a download on the Zoom website (https://zoom.us/meetings) or 8 on mobile devices through the installation of a free app.2 Joining a Zoom conference 9 does not require creating a Zoom account, but it does require downloading the .exe 10 file (if using a computer) or the app (if using a mobile device). Participants are 11 encouraged to create an account, install Zoom and familiarize themselves with Zoom 12 in advance of the Status Conference.3 There is a cost-free option for creating a Zoom 13 account. 14 b. Prior to the start of the Status Conference, the Court will email each 15 participant an invitation to join a Zoom video conference. Again, if possible, 16 participants are encouraged to use laptops or desktop computers for the video 17 conference, as mobile devices often offer inferior performance. Participants shall 18 join the video conference by following the ZoomGov Meeting hyperlink in the 19 invitation. Participants who do not have Zoom already installed on their device 20 when they click on the ZoomGov Meeting hyperlink will be prompted to 21 download and install Zoom before proceeding. Zoom may then prompt 22 participants to enter the password included in the invitation. 23 24 25 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices. 26
27 3 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- us/categories/200101697-Getting-Started 28 1 c. Each participant should plan to join the Zoom video conference at least 2 five minutes before the start of the Status Conference to ensure that the conference 3 begins promptly at 2:00 p.m. 4 d. No later than May 6, 2022, counsel for each party shall send an e-mail 5 to the Court at efile_goddard@casd.uscourts.gov containing the following: 6 i. The name and title of each participant; 7 ii. An e-mail address for each participant to receive the Zoom 8 video conference invitation; 9 iii. telephone number where each participant may be reached if 10 technical difficulties arise; and 11 iv. A cell phone number for that party’s preferred point of 12 contact (and the name of the individual whose cell phone it is). 13 e. All participants shall display the same level of professionalism during 14 the Status Conference and be prepared to devote their full attention to the Status 15 Conference as if they were attending in person, i.e., cannot be driving while speaking 16 to the Court. Because Zoom may quickly deplete the battery of a participant’s device, 17 each participant should ensure that their device is plugged in or that a charging cable 18 is readily available during the video conference. 19 f. Counsel are advised that although the Status Conference will take place 20 on Zoom, all participants shall appear and conduct themselves as if it is proceeding 21 in a courtroom, i.e., counsel must dress in appropriate courtroom attire. 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / 1 ||IV. CONCLUSION 2 For the reasons set forth above, the Court orders as follows: 3 1. Plaintiffs’ motion to vacate the amended scheduling order is GRANTED. 4 No. 26 (referring to ECF No. 21). 5 2. The remaining deadlines set forth in the Court’s Amended Scheduling Order 6 || (ECF No. 21), including the July 11, 2022 hearing before Judge Anello, are VACATED. 7 3. The Court SETS a Status Conference via videoconference for May 10, 2022 8 || at 2:00 p.m. before Magistrate Judge Allison H. Goddard. 9 4. The parties must send the Court a joint status update and proposed schedule 10 || via email (to efile_goddard @casd.uscourts.gov) (not filed) by May 6, 2022. Each party’s 11 || videoconference participant contact information lists are also due via email on 12 || May 6, 2022. 13 14 IT IS SO ORDERED. 15 ||Dated: April 21, 2022 16 _Abiomt. Xl Honorable Allison H. Goddard 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28