Pisciotti v. Brittingham

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 FRANK PISCIOTTI, CASE NO. 20-CV-05924-LK 11 Plaintiff, ORDER GRANTING IN PART 12 v. PLAINTIFF’S MOTION TO CONTINUE TRIAL AND 13 ROBERTA BRITTINGHAM, PRETRIAL DEADLINES 14 Defendant. 15

16 This matter comes before the Court on Plaintiff Frank Pisciotti’s Motion to Continue the 17 Trial Date and Pretrial Deadlines, Defendant Roberta Brittingham’s Opposition, and the parties’ 18 supporting declarations. Dkt. Nos. 55–56, 57–58. The Court GRANTS IN PART Pisciotti’s 19 motion. 20 I. INTRODUCTION 21 Trial in this matter is currently scheduled for June 14, 2022. Dkt. No. 41 at 2. The parties’ 22 motions in limine are due on May 2, 2022, their pretrial order is due on May 16, 2022, and their 23 trial briefs are due on May 23, 2022. Id. at 1–2. And last, the pretrial conference is scheduled for 24 May 27, 2022. Id. at 2. 1 Pisciotti moves the Court for a three-month extension of these deadlines because his lead 2 counsel is also lead counsel in another case currently pending in this district, Aquarian Foundation, 3 Inc. v. Lowndes, No. 2:19-CV-01879-RSM. Dkt. No. 55 at 1–2. According to Pisciotti, Aquarian 4 was set for trial on April 25, 2022 until recently, when Chief Judge Martinez “unexpectedly”

5 pushed trial to May 23, 2022 during the pretrial conference. Id. at 2. The Aquarian pretrial 6 deadlines and trial date now directly conflict with or overlap the Court’s pretrial deadlines in this 7 matter. Id. at 3–4 (table depicting overlapping schedule); Dkt. No. 57 at 3 (same). As for direct 8 conflicts, the parties’ trial briefs, proposed voir dire questions, proposed jury instructions, 9 deposition designations, and exhibit list are due on the first day of the Aquarian trial. Dkt. No. 55 10 at 4; Dkt. No. 57 at 3. And the pretrial conference in this case is set for the final day of the Aquarian 11 trial. Dkt. No. 55 at 4; Dkt. No. 57 at 3. The two schedules otherwise overlap for the entire month 12 of May. See Dkt. No. 57 at 3. 13 II. DISCUSSION 14 The Court may modify a schedule “only for good cause[.]” Fed. R. Civ. P. 16(b)(4). This

15 standard “primarily considers the diligence of the party seeking the amendment.” Johnson v. 16 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). As the Ninth Circuit warns, 17 carelessness is incompatible with a finding of diligence. Id. The Court’s inquiry thus focuses on 18 the moving party’s reasons for seeking a modification and, “[i]f that party was not diligent, the 19 inquiry should end.” Id. 20 Plaintiff emphasizes that his counsel is “a single-attorney law firm with one part-time 21 paralegal who works remotely.” Dkt. No. 55 at 4. Although counsel was prepared for successive 22 trials, the shift in the Aquarian schedule will force counsel to prepare for two trials at once and 23 then continue to meet pretrial deadlines in this case amidst trying Aquarian. Id. at 4–5. As counsel

24 notes, this would be “unreasonable, if not impossible.” Id. at 4–5. 1 Brittingham opposes continuance. She counters that “there is no actual conflict with this 2 case”—only “some overlap”—and insists that both cases can therefore “be tried without requiring 3 [Pisciotti’s counsel] to be in two places at once.” Dkt. No. 57 at 3. In Brittingham’s view, “[p]roper 4 planning and scheduling can ensure that work is completed in advance to avoid any overlapping

5 deadline.” Id. The Court finds this disingenuous. In these circumstances, it is unreasonable to 6 expect a single-attorney law firm with one part-time paralegal to “plan and schedule” for the 7 following changes that were put into effect only last week: 8 Old deadlines New deadlines March 28: Motions in limine (Aquarian) May 2: Motions in limine (Pisciotti) 9 April 11: Pretrial order (Aquarian) May 11: Pretrial order (Aquarian) April 18: Trial briefs (Aquarian) May 16: Pretrial order (Pisciotti) 10 April 25: Trial (Aquarian) May 18: Proposed FOF/COL (Aquarian) 11 May 2: Motions in limine (Pisciotti) May 18: Trial briefs (Aquarian) May 16: Pretrial order (Pisciotti) May 23: Voir dire etc. (Pisciotti) 12 May 23: Voir dire etc. (Pisciotti) May 23-27: Trial (Aquarian) May 27: Pretrial conference (Pisciotti) May 27: Pretrial conference (Pisciotti) 13 June 14-20: Trial (Pisciotti) June 14-20: Trial (Pisciotti) 14 Cf. Ball v. Manalto, Inc., No. C16-1523RSM, 2017 WL 2119329, at *2 (W.D. Wash. May 16, 15 2017) (“While pregnancy would almost certainly constitute good cause for a four month 16 continuance if Defendants were represented by a solo practitioner, the Court finds that it does not 17 constitute good cause when Defendants are represented by at least one other named counsel and a 18 firm full of associates that can certainly be brought up to speed on this case.”). Indeed, Brittingham 19 filed an unopposed motion to reschedule the pretrial conference in this case because her counsel 20 would be in trial in another matter on the date of the pretrial conference, Dkt No. 40 at 1, but now 21 inexplicably declines to extend the same courtesy to Pisciotti. See Dkt. No. 55 at 3 and table above 22 (counsel for Pisciotti scheduled to be in trial in Aquarian on the pretrial conference date in this 23 case). 24 1 The Court acknowledges the potential prejudice that Brittingham might suffer from a 2 continuance. See Dkt. No. 57 at 6–7. Although it is sympathetic to the “stress, anxiety, and 3 financial strain” of the case and her existing travel arrangements, such concerns are an inherent 4 downside of litigation. See Knussman v. Maryland, 272 F.3d 625, 641 (4th Cir. 2001) (noting that

5 “anxiety, stress, or other unpleasantness” is “inherent in most litigation” (cleaned up)); Karpenski 6 v. Am. Gen. Life Cos., LLC, No. 2:12-CV-01569-RSM, 2013 WL 6086230, at *2 (W.D. Wash. 7 Nov. 19, 2013) (“It is axiomatic that the trial court has inherent authority to control the disposition 8 of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants,” 9 including continuing case deadlines) (cleaned up). And, in any event, the “good cause” inquiry 10 focuses on the diligence of the moving party. See DRK Photo v. McGraw-Hill Glob. Educ. 11 Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017) (the “central inquiry” is “whether the requesting 12 party was diligent in seeking the amendment”). Here, Pisciotti was confronted with an unforeseen 13 change in circumstances and promptly sought a remedy. And the Court finds that its current pretrial 14 deadlines and trial date cannot reasonably be met. Johnson, 975 F.2d at 609. As such, good cause

15 exists to continue trial and all related pretrial deadlines. The Court declines, however, to adopt 16 Pisciotti’s proposed amended schedule. See Dkt. No. 55. 17 III. CONCLUSION 18 The Court GRANTS IN PART Pisciotti’s Motion to Continue. Dkt. No. 55. 19 The Court further ORDERS counsel to confer and identify a new trial date and new pretrial 20 deadlines falling between July 11, 2022 and September 6, 2022. The parties shall submit their 21 proposed dates by April 22, 2022. If the parties are unable to reach agreement, the Court will set a 22 schedule for them. 23

24 1 Dated this 15th day of April, 2022. 2 A 3 Lauren King United States District Judge 4 5 6 7 8 9 10 11 12 13 14

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