1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NEVADA FLEET, LLC, Case No. 2:17-cv-01732-DAD-CSK 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION TO VACATE AND 14 FEDERAL EXPRESS CONTINUE DEADLINES CORPORATION, et al., 15 (ECF No. 212) Defendants. 16
17 18 On June 12, 2025, Plaintiff Nevada Fleet, LLC filed an ex parte application to 19 vacate the May 28, 2025 deadline to complete the deposition of Plaintiff’s expert, Carlos 20 Gurrola, and vacate the June 16, 2025 motions deadline. (ECF No. 212.) Alternatively, 21 Plaintiff requests a “[g]eneral continuance of 60-90 days and certain related cut-off 22 dates.” Pl. Mot. at 8. Because Plaintiff fails to establish good cause to modify the 23 schedule, the Court DENIES Plaintiff’s ex parte application. 24 I. DISCUSSION 25 A. Background 26 Plaintiff filed the Complaint initiating this action on August 18, 2017. (ECF No. 1.) 27 On March 3, 2025, before representation by Plaintiff’s fourth counsel of record (Tovar & 28 Cohen, LLP) was terminated, Plaintiff and Defendants Federal Express Corporation and 1 Automotive Rentals, Inc filed a joint stipulation to extend discovery deadlines to allow the 2 completion of certain dispositions of fact and expert witnesses, including Mr. Gurrola’s 3 deposition. (ECF No. 193 at 3.) In the joint stipulation, the parties agreed that Mr. 4 Gurrola’s deposition would be taken on March 27, 2025. (Id.) On March 4, 2025, District 5 Judge Dale Drozd granted Plaintiff and Defendants’ joint stipulation to extend deadlines, 6 ordering that discovery be completed in its entirety by March 28, 2025, including Mr. 7 Gurrola’s deposition on March 27, 2025, and that motions be filed by April 18, 2025. 8 (ECF No. 194.) On March 21, 2025, Plaintiff fired its fourth set of counsel (Tovar & 9 Cohen) without informing counsel, instead informing Defendant FedEx counsel. Id. at 3. 10 Though Plaintiff fired its counsel, it did not retain new counsel, resulting in Tovar & 11 Cohen filing a motion to withdraw as counsel for Plaintiff on April 7, 2025. (ECF No. 12 195.) 13 After Plaintiff fired Tovar & Cohen, Defendants filed an ex parte application to 14 vacate the April 18, 2025 motion deadline due to Defendants’ anticipated motion to 15 compel the deposition of Mr. Gurrola and Tovar & Cohen’s pending motion to withdraw 16 as counsel for Plaintiff. (ECF No. 198.) The district judge granted the request, continuing 17 the motion deadline to June 16, 2025, the Final Pretrial Conference to November 24, 18 2025, and trial to January 27, 2026. (ECF No. 199.) On April 25, 2025, a Joint Informal 19 Discovery Dispute Letter Brief was filed regarding Defendants’ inability to conduct the 20 remote deposition of Mr. Carlos Gurrola, a proposed expert witness retained by Plaintiff.1 21 (ECF No. 201.) On April 28, 2025, the Court held an informal discovery conference and 22 issued an order extending the March 28, 2025 deadline to complete discovery to May 23 28, 2025, solely limited to taking Mr. Gurrola’s deposition. (ECF Nos. 202, 203.) This 24 Court further ordered Plaintiff to produce Mr. Gurrola for his deposition on or before May 25 28, 2025. (Id.) In this order, the Court expressly warned Plaintiff that it “cannot continue
26 1 Defendants also raised the issue regarding Plaintiff’s confidentiality designations of 27 documents, which the Court did not decide. The parties were informed that if they could not reach a resolution as to this issue, Defendants could follow the formal procedures to 28 request sealing documents pursuant to E.D. Cal. Local Rule 141. 4/28/2025 Order at 2. 1 to refuse to participate in discovery as to Mr. Gurrola’s deposition. Plaintiff Nevada Fleet, 2 LLC is warned that the continued failure to adhere to its discovery obligations may result 3 in other potential sanctions, including limitations on the use of Mr. Gurrola’s testimony at 4 trial. See Fed. R. Civ. P. 37.” (ECF No. 203 at 2.) Plaintiff’s then counsel of record 5 served a copy of this order on Plaintiff. (See id.; ECF No. 204.) 6 On May 9, 2025, the district judge ordered Tovar & Cohen to inform Plaintiff of the 7 requirement that a corporation or entity appear through an attorney, and warned Plaintiff 8 that the failure to timely file either a notice of appearance by its new counsel or a notice 9 of voluntary dismissal may result in the dismissal of the action due to Plaintiff’s failure to 10 prosecute. (ECF No. 205; see also ECF No. 181.) On May 21, 2025, the district judge 11 granted Tovar & Cohen’s motion to withdraw as counsel for Plaintiff, requiring Plaintiff to 12 file within fourteen days either a notice of appearance by its new counsel or a notice of 13 voluntary dismissal. (ECF Nos. 195, 207.) The district judge summarized the history of 14 Plaintiff’s changing counsel: 15 On May 4, 2020, attorney Tanya Kim Harris was terminated as counsel of record for plaintiff and replaced by attorney 16 Mary Kathleen Gallagher. (Doc. No. 60.) On August 13, 2020, the previously assigned district judge issued an order 17 substituting attorney Brandon Claus Fernald as counsel of record for plaintiff in place of attorney Gallagher. (Doc. No. 18 69.) On May 14, 2024, attorney Fernald filed a motion to withdraw as counsel of record for plaintiff; the court granted 19 that motion on July 9, 2024. (Doc. Nos. 175, 181.) Notably, in almost identical circumstances to those now presented here, 20 plaintiff, through its principal Thomas Layton, emailed defendant’s counsel directly and informed opposing counsel 21 that it had terminated attorney Fernald without notifying Fernald directly of the termination. (Doc. No. 175 at 8, 10-11.) 22 Defendant’s counsel then forwarded that email to attorney Fernald. (Id. at 10-11.) Plaintiff’s current attorneys, Tovar and 23 Cohen, were added as plaintiff’s counsel of record on July 18, 2024. (Doc. No. 182.) … On March 19, 2025, plaintiff insisted 24 that attorneys Tovar and Cohen engage in conduct that was contrary to their judgment and best advice and that could not 25 be supported by a good faith argument. (Doc. No. 195 at ¶ 4.) Attorneys Tovar and Cohen refused to engage in plaintiff’s 26 proposed course of conduct on the grounds that doing so would not be in plaintiff’s best interest and because the 27 proposed conduct would be, in their view, unethical. (Id.) On March 21, 2025, defendants’ counsel informed attorney Tovar 28 that plaintiff’s principal, Thomas Layton, had advised 1 defendants’ counsel that he had terminated attorneys Tovar and Cohen as his counsel in this action. (Id. at ¶ 5.) 2 3 5/21/2025 Order at 1-2. 4 On May 30, 2025, Defendants moved for sanctions for Plaintiff’s failure to produce 5 its retained expert, Carlos Gurrola, for deposition by May 28, 2025 in violation of the 6 Court’s order. (ECF No. 208.) 7 On June 3, 2025, Plaintiff filed a notice of appearance by its new counsel, 8 Plaintiff’s fifth set of counsel. (ECF No. 210.) 9 Plaintiff’s opposition or statement of non-opposition to sanctions was due on or by 10 June 6, 2025; Defendants’ optional reply was due on or by June 11, 2025; and the 11 hearing was set for June 20, 2025. (ECF No. 209.) As of June 11, 2025, Plaintiff did not 12 file an opposition, statement of non-opposition, or a request for an extension of time to 13 file either. (ECF No. 211.) As a result, the hearing was vacated and the matter was 14 submitted on the record. (Id.) On June 12, 2025, this Court granted Defendants’ motion 15 for discovery sanctions, precluding Plaintiff from presenting its expert, Carlos Gurrola, at 16 trial. (ECF No. 214.) 17 Also on June 12, 2025, Plaintiff filed the instant ex parte application to vacate and 18 continue case deadlines. 19 B.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NEVADA FLEET, LLC, Case No. 2:17-cv-01732-DAD-CSK 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION TO VACATE AND 14 FEDERAL EXPRESS CONTINUE DEADLINES CORPORATION, et al., 15 (ECF No. 212) Defendants. 16
17 18 On June 12, 2025, Plaintiff Nevada Fleet, LLC filed an ex parte application to 19 vacate the May 28, 2025 deadline to complete the deposition of Plaintiff’s expert, Carlos 20 Gurrola, and vacate the June 16, 2025 motions deadline. (ECF No. 212.) Alternatively, 21 Plaintiff requests a “[g]eneral continuance of 60-90 days and certain related cut-off 22 dates.” Pl. Mot. at 8. Because Plaintiff fails to establish good cause to modify the 23 schedule, the Court DENIES Plaintiff’s ex parte application. 24 I. DISCUSSION 25 A. Background 26 Plaintiff filed the Complaint initiating this action on August 18, 2017. (ECF No. 1.) 27 On March 3, 2025, before representation by Plaintiff’s fourth counsel of record (Tovar & 28 Cohen, LLP) was terminated, Plaintiff and Defendants Federal Express Corporation and 1 Automotive Rentals, Inc filed a joint stipulation to extend discovery deadlines to allow the 2 completion of certain dispositions of fact and expert witnesses, including Mr. Gurrola’s 3 deposition. (ECF No. 193 at 3.) In the joint stipulation, the parties agreed that Mr. 4 Gurrola’s deposition would be taken on March 27, 2025. (Id.) On March 4, 2025, District 5 Judge Dale Drozd granted Plaintiff and Defendants’ joint stipulation to extend deadlines, 6 ordering that discovery be completed in its entirety by March 28, 2025, including Mr. 7 Gurrola’s deposition on March 27, 2025, and that motions be filed by April 18, 2025. 8 (ECF No. 194.) On March 21, 2025, Plaintiff fired its fourth set of counsel (Tovar & 9 Cohen) without informing counsel, instead informing Defendant FedEx counsel. Id. at 3. 10 Though Plaintiff fired its counsel, it did not retain new counsel, resulting in Tovar & 11 Cohen filing a motion to withdraw as counsel for Plaintiff on April 7, 2025. (ECF No. 12 195.) 13 After Plaintiff fired Tovar & Cohen, Defendants filed an ex parte application to 14 vacate the April 18, 2025 motion deadline due to Defendants’ anticipated motion to 15 compel the deposition of Mr. Gurrola and Tovar & Cohen’s pending motion to withdraw 16 as counsel for Plaintiff. (ECF No. 198.) The district judge granted the request, continuing 17 the motion deadline to June 16, 2025, the Final Pretrial Conference to November 24, 18 2025, and trial to January 27, 2026. (ECF No. 199.) On April 25, 2025, a Joint Informal 19 Discovery Dispute Letter Brief was filed regarding Defendants’ inability to conduct the 20 remote deposition of Mr. Carlos Gurrola, a proposed expert witness retained by Plaintiff.1 21 (ECF No. 201.) On April 28, 2025, the Court held an informal discovery conference and 22 issued an order extending the March 28, 2025 deadline to complete discovery to May 23 28, 2025, solely limited to taking Mr. Gurrola’s deposition. (ECF Nos. 202, 203.) This 24 Court further ordered Plaintiff to produce Mr. Gurrola for his deposition on or before May 25 28, 2025. (Id.) In this order, the Court expressly warned Plaintiff that it “cannot continue
26 1 Defendants also raised the issue regarding Plaintiff’s confidentiality designations of 27 documents, which the Court did not decide. The parties were informed that if they could not reach a resolution as to this issue, Defendants could follow the formal procedures to 28 request sealing documents pursuant to E.D. Cal. Local Rule 141. 4/28/2025 Order at 2. 1 to refuse to participate in discovery as to Mr. Gurrola’s deposition. Plaintiff Nevada Fleet, 2 LLC is warned that the continued failure to adhere to its discovery obligations may result 3 in other potential sanctions, including limitations on the use of Mr. Gurrola’s testimony at 4 trial. See Fed. R. Civ. P. 37.” (ECF No. 203 at 2.) Plaintiff’s then counsel of record 5 served a copy of this order on Plaintiff. (See id.; ECF No. 204.) 6 On May 9, 2025, the district judge ordered Tovar & Cohen to inform Plaintiff of the 7 requirement that a corporation or entity appear through an attorney, and warned Plaintiff 8 that the failure to timely file either a notice of appearance by its new counsel or a notice 9 of voluntary dismissal may result in the dismissal of the action due to Plaintiff’s failure to 10 prosecute. (ECF No. 205; see also ECF No. 181.) On May 21, 2025, the district judge 11 granted Tovar & Cohen’s motion to withdraw as counsel for Plaintiff, requiring Plaintiff to 12 file within fourteen days either a notice of appearance by its new counsel or a notice of 13 voluntary dismissal. (ECF Nos. 195, 207.) The district judge summarized the history of 14 Plaintiff’s changing counsel: 15 On May 4, 2020, attorney Tanya Kim Harris was terminated as counsel of record for plaintiff and replaced by attorney 16 Mary Kathleen Gallagher. (Doc. No. 60.) On August 13, 2020, the previously assigned district judge issued an order 17 substituting attorney Brandon Claus Fernald as counsel of record for plaintiff in place of attorney Gallagher. (Doc. No. 18 69.) On May 14, 2024, attorney Fernald filed a motion to withdraw as counsel of record for plaintiff; the court granted 19 that motion on July 9, 2024. (Doc. Nos. 175, 181.) Notably, in almost identical circumstances to those now presented here, 20 plaintiff, through its principal Thomas Layton, emailed defendant’s counsel directly and informed opposing counsel 21 that it had terminated attorney Fernald without notifying Fernald directly of the termination. (Doc. No. 175 at 8, 10-11.) 22 Defendant’s counsel then forwarded that email to attorney Fernald. (Id. at 10-11.) Plaintiff’s current attorneys, Tovar and 23 Cohen, were added as plaintiff’s counsel of record on July 18, 2024. (Doc. No. 182.) … On March 19, 2025, plaintiff insisted 24 that attorneys Tovar and Cohen engage in conduct that was contrary to their judgment and best advice and that could not 25 be supported by a good faith argument. (Doc. No. 195 at ¶ 4.) Attorneys Tovar and Cohen refused to engage in plaintiff’s 26 proposed course of conduct on the grounds that doing so would not be in plaintiff’s best interest and because the 27 proposed conduct would be, in their view, unethical. (Id.) On March 21, 2025, defendants’ counsel informed attorney Tovar 28 that plaintiff’s principal, Thomas Layton, had advised 1 defendants’ counsel that he had terminated attorneys Tovar and Cohen as his counsel in this action. (Id. at ¶ 5.) 2 3 5/21/2025 Order at 1-2. 4 On May 30, 2025, Defendants moved for sanctions for Plaintiff’s failure to produce 5 its retained expert, Carlos Gurrola, for deposition by May 28, 2025 in violation of the 6 Court’s order. (ECF No. 208.) 7 On June 3, 2025, Plaintiff filed a notice of appearance by its new counsel, 8 Plaintiff’s fifth set of counsel. (ECF No. 210.) 9 Plaintiff’s opposition or statement of non-opposition to sanctions was due on or by 10 June 6, 2025; Defendants’ optional reply was due on or by June 11, 2025; and the 11 hearing was set for June 20, 2025. (ECF No. 209.) As of June 11, 2025, Plaintiff did not 12 file an opposition, statement of non-opposition, or a request for an extension of time to 13 file either. (ECF No. 211.) As a result, the hearing was vacated and the matter was 14 submitted on the record. (Id.) On June 12, 2025, this Court granted Defendants’ motion 15 for discovery sanctions, precluding Plaintiff from presenting its expert, Carlos Gurrola, at 16 trial. (ECF No. 214.) 17 Also on June 12, 2025, Plaintiff filed the instant ex parte application to vacate and 18 continue case deadlines. 19 B. Legal Standards 20 “The district court is given broad discretion in supervising the pretrial phase of 21 litigation.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) 22 (citation and internal quotation marks omitted). Rule 16(b) provides that “[a] schedule 23 may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 24 16(b)(4).2 “The schedule may be modified ‘if it cannot reasonably be met despite the 25 diligence of the party seeking the extension.’” Zivkovic v. Southern California Edison Co., 26
27 2 The Court notes that Plaintiff cites to and relies upon the California Rules of Court, which are state court rules that do not apply to this federal district court. See Pl. Mot. at 28 4-6. 1 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 607). 2 C. Analysis 3 This action was filed in August 2017, and has been pending for almost eight (8) 4 years. Plaintiff has failed to establish good cause to modify the case schedule, and has 5 failed to demonstrate its diligence. See Zivkovic, 302 F.3d at 1087; Fed. R. Civ. P. 6 16(b)(4). Plaintiff’s ex parte application was filed on June 12, 2025, over two weeks after 7 the May 28, 2025 deadline to complete Mr. Gurrola’s deposition, and is therefore, an 8 untimely request as to this deadline. 9 In Plaintiff’s ex parte application, Plaintiff states it has not requested any previous 10 extensions. 6/12/2025 Decl. of Thomas Layton ¶ 13 (ECF No. 212 at 15). This is not 11 accurate. Plaintiff previously filed two ex parte applications to modify the scheduling 12 order, including on December 18, 2020 and July 8, 2021. (ECF No. 76-78, 93.) In 13 addition to Plaintiff’s ex parte applications to continue case deadlines, before March 14 2025, the district judge granted at least twenty (20) joint stipulations submitted by 15 Plaintiff and Defendants to extend case deadlines, including on January 18, 2019, July 16 15, 2019, September 17, 2019, November 25, 2019, February 6, 2020, May 1, 2020, 17 August 25, 2020, December 28, 2020, March 11, 2021, June 10, 2021, July 23, 2021, 18 October 1, 2021, March 31, 2022, May 6, 2022, June 21, 2022, October 11, 2022, July 19 25, 2024, October 11, 2024, January 15, 2025, and January 22, 2025. (See ECF Nos. 20 45, 47-49, 52-59, 74, 75, 80, 81, 86, 87, 89, 90, 101, 102, 113, 114, 123, 124, 129, 21 130,138, 139, 157, 158, 183-190.) As this history demonstrates, the parties’ frequent 22 requests to continue case deadlines have delayed this case for years. 23 Plaintiff argues that good cause is established to permit new counsel “to get up- 24 to-speed” where Plaintiff retained new counsel on May 31, 2025; new counsel obtained 25 access to the district court’s electronic case docket3 on June 2, 2025; and new counsel 26 filed its appearance on June 3, 2025. Pl. Mot. at 3. Plaintiff’s arguments fail. While the 27
28 3 Referred to as “CM/ECF,” or Case Management/Electronic Case Files. 1 Court appreciates the difficult situation in which Plaintiff’s new counsel finds themselves, 2 this is a problem entirely of Plaintiff Nevada Fleet’s own making. After Plaintiff jointly 3 requested and obtained yet another extension of the discovery deadline on March 3, 4 2025 (ECF Nos. 193, 194), Plaintiff fired its fourth set of counsel on March 21, 2025. 5 Plaintiff then waited more than two months to retain new counsel despite having been 6 previously warned about the importance of promptly retaining new counsel. In a July 8, 7 2024 order on a prior motion to withdraw by Plaintiff’s third set of counsel, the district 8 judge previously warned Plaintiff that the failure to promptly retain new counsel would 9 result in dismissal of the action. (ECF No. 181 at 3, 4.) Because Plaintiff failed to retain 10 new counsel, its prior counsel (Tovar & Cohen) was forced to file a motion to withdraw 11 as counsel rather than Plaintiff filing a substitution of counsel, as it has previously done. 12 See Docket. Even after Tovar & Cohen filed a motion to withdraw as counsel, Plaintiff 13 still did not retain new counsel. It waited until after the court issued a prophylactic order 14 on May 9, 2025, and until after the court granted the motion to withdraw on May 21, 15 2025. Had Plaintiff been diligent, the May 28 and June 16 case deadlines could have 16 been met, and if it was not possible to meet them, Plaintiff could have timely requested a 17 extension. 18 Further, to the extent Plaintiff argues that because it retained new counsel within 19 fourteen (14) days of the May 21, 2025 order granting Tovar & Cohen’s motion to 20 withdraw as counsel, Plaintiff acted diligently or in a timely fashion to justify vacating and 21 continuing other case deadlines, this argument fails. Plaintiff waited over two months to 22 retain new counsel. In addition, despite having actual knowledge of the May 28, 2025 23 deadline for completing Mr. Gurrola’s deposition and the June 16, 2025 motion filing 24 deadline as established by Plaintiff’s ex parte request, Plaintiff made no effort to request 25 an extension of either deadline, though it still had counsel of record until the motion to 26 withdraw was granted on May 21, 2025. By retaining new counsel and filing counsel’s 27 appearance within fourteen (14) days of the May 21 order, Plaintiff escaped dismissal of 28 / / / 1 || this action for failure to prosecute. See 5/21/2025 Order at 5.4 That does not equate to 2 || establishing diligence or good cause to justify this late request to modify the case 3 | schedule. 4 The Court has already addressed Defendants’ motion for discovery sanctions by 5 || separate order (ECF No. 214), and declines to further address Plaintiffs arguments 6 | raised in this ex parte request to modify case deadlines.°® 7] OU. CONCLUSION 8 For the foregoing reasons, the Court hereby ORDERS as follows: 9 (1) Plaintiff's ex parte application to vacate the May 28, 2025 deadline to complete 10 the deposition of Plaintiff's expert, Carlos Gurrola, and to vacate the June 16, 11 2025 motions deadline (ECF No. 212) is DENIED; and 12 (2) The case deadlines previously ordered by the Court remain, including the 13 June 16, 2025 motions deadline and the closing of discovery (ECF Nos. 154, 14 194, 199, 203). 15 16 | Dated: June 13, 2025 sve - S 17 CHI S00 KIM 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 | * As described above, this is not the first time Plaintiff has been so warned. See 7/28/2024 Order at 3, 4. 24 | © The Court also notes Plaintiff's arguments are confusing and appear to be conflicting. Once Plaintiff's new counsel had access to the case docket beginning on June 2, 2025, 25 | counsel had constructive knowledge of the case deadlines as they are readily apparent 26 and accessible in the case docket, including the June 6, 2025 deadline for Plaintiff's response to Defendants’ motion for sanctions. It’s unclear why Plaintiff also appears to 27 || argue that its principal (not counsel) did not know of the deadline to respond to the motion for sanctions. Regardless, the Court has already ruled on Defendants’ sanctions 28 | motion.