1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE RESENDEZ, Case No. 1:22-cv-01554-JLT-SAB 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES’ 13 v. STIPULATED MOTION TO MODIFY SCHEDULING ORDER 14 ADVANCED DRAINAGE SYSTEMS, INC., (ECF No. 9) 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 Plaintiff filed this action in the Madera County Superior Court on October 27, 2022. (ECF 21 No. 1.) Defendant removed the action to this Court on December 1, 2022. (Id.) A scheduling 22 order for this matter was issued on January 31, 2023. (ECF No. 8.) The scheduling order contains 23 the following dates and deadlines: 24 1. Non-Expert Discovery Deadline: October 27, 2023; 25 2. Expert Disclosure Deadline: November 20, 2023; 26 3. Supplemental Expert Disclosure Deadline: December 22, 2023; 27 4. Expert Discovery Deadline: February 2, 2024; 28 5. Dispositive Motion Filing Deadline: February 28, 2024; 1 6. Pretrial Conference: August 26, 2024, at 1:30 p.m., in Courtroom 4; and 2 7. Trial: October 22, 2024, at 8:30 a.m., in Courtroom 4. 3 (Id.) 4 II. 5 LEGAL STANDARDS 6 This Court generally has significant discretion and authority to control the conduct of 7 discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Federal Rule of Civil 8 Procedure 16(b) provides that the district court must issue a scheduling order that limits “the time 9 to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 10 16(b)(3)(A). A scheduling order “may be modified only for good cause and with the judge’s 11 consent.” Fed. R. Civ. P. 16(b)(4). 12 The “good cause” standard “primarily considers the diligence of the party seeking the 13 amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To 14 establish good cause, the party seeking the modification of a scheduling order must generally show 15 that even with the exercise of due diligence, they cannot meet the requirement of that order. Id. 16 The prejudice to other parties, if any, may be considered, but the focus is on the moving party’s 17 reason for seeking the modification. Id. If the party seeking to amend the scheduling order fails to 18 show due diligence the inquiry should end, and the court should not grant the motion to modify. 19 Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing 20 Mammoth Recreations, 975 F.2d 604 at 609). “Relevant inquiries [into diligence] include: whether 21 the movant was diligent in helping the court to create a workable Rule 16 order; whether matters 22 that were not, and could not have been, foreseeable at the time of the scheduling conference caused 23 the need for amendment; and whether the movant was diligent in seeking amendment once the 24 need to amend became apparent.” United States ex rel. Terry v. Wasatch Advantage Grp., LLC, 25 327 F.R.D. 395, 404 (E.D. Cal. 2018) (internal quotation marks and citation omitted) (alteration in 26 original). 27 It is “significant” when a party is seeking a “retroactive reopening” of discovery rather than 28 extending the discovery deadline. West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1 1524 (9th Cir. 1990). “The difference [between the two types of requests] is considerable” because 2 “a request for an extension acknowledges the importance of a deadline, [while] a retroactive 3 request suggests that the party paid no attention at all to the deadline.” Id. When ruling on a 4 motion to amend a Rule 16 scheduling order to reopen discovery, the Court is to “consider the 5 following factors: 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the 6 non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining 7 discovery within the guidelines established by the court, 5) the foreseeability of the need for 8 additional discovery in light of the time allowed for discovery by the district court, and 6) the 9 likelihood that the discovery will lead to relevant evidence.” City of Pomona v. SQM N. Am. 10 Corp., 866 F.3d 1060, 1066 (9th Cir. 2017). 11 III. 12 DISCUSSION 13 On October 31, 2023, the parties filed a stipulation to extend the case schedule, which the 14 Court construes as a stipulated motion to modify the scheduling order. (ECF No. 9.) The parties 15 stipulate to an extension of the October 27, 2023 non-expert discovery deadline and all subsequent 16 deadlines by ninety (90) days. (Id. at 2.) The parties proffer they exchanged written discovery in 17 spring 2023 and subsequently spent the next several months engaged in informal settlement 18 negotiations. (Id. at 2.) The parties eventually agreed that deposing Plaintiff was necessary before 19 settlement negotiations could continue and Plaintiff’s counsel agreed to “grant Defendant 20 deposition priority.” (Id.) The parties represent Plaintiff’s deposition was initially scheduled for 21 July 2023, but had to be rescheduled multiple times due to continued settlement efforts or 22 scheduling conflicts. (Id.) On October 17, 2023, Defendant took Plaintiff’s deposition. (Id.) 23 Plaintiff has not deposed any of Defendant’s witnesses. (Id.) 24 A. The Parties’ Stipulated Motion to Extend the Non-Expert Discovery Deadline 25 The non-expert discovery deadline expired on October 27, 2023. (ECF No. 9.) The parties 26 filed the instant stipulated motion to extend non-expert discovery on October 31, 2023. The parties 27 are therefore requesting that the Court sanction the parties’ “retroactive reopening” of non-expert 28 discovery to allow Plaintiff to begin deposing Defendant’s witnesses. West Coast Theater Corp., 1 897 F.2d at 1524 (noting a “considerable” difference between a motion to retroactively reopen 2 discovery and a request to extend the discovery deadline). Upon consideration of the legal 3 standards and the above proffered reasons for good cause, the Court finds the parties have not been 4 diligent and will not grant the parties’ motion to reopen non-expert discovery for an additional 5 ninety days. In the January 31, 2023 scheduling order, the Court expressly stated: 6 The parties are cautioned that the discovery/expert cut-off deadlines are the dates by which all discovery must be completed. Absent 7 good cause, discovery motions will not be heard after the discovery deadlines. Moreover, absent good cause, the Court will only grant 8 relief on a discovery motion if the relief requested requires the parties to act before the expiration of the relevant discovery 9 deadline. In other words, discovery requests and deposition notices must be served sufficiently in advance of the discovery deadlines to 10 permit time for a response, time to meet and confer, time to prepare, file and hear a motion to compel and time to obtain relief on a 11 motion to compel. Counsel are expected to take these contingencies into account when proposing discovery deadlines.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE RESENDEZ, Case No. 1:22-cv-01554-JLT-SAB 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES’ 13 v. STIPULATED MOTION TO MODIFY SCHEDULING ORDER 14 ADVANCED DRAINAGE SYSTEMS, INC., (ECF No. 9) 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 Plaintiff filed this action in the Madera County Superior Court on October 27, 2022. (ECF 21 No. 1.) Defendant removed the action to this Court on December 1, 2022. (Id.) A scheduling 22 order for this matter was issued on January 31, 2023. (ECF No. 8.) The scheduling order contains 23 the following dates and deadlines: 24 1. Non-Expert Discovery Deadline: October 27, 2023; 25 2. Expert Disclosure Deadline: November 20, 2023; 26 3. Supplemental Expert Disclosure Deadline: December 22, 2023; 27 4. Expert Discovery Deadline: February 2, 2024; 28 5. Dispositive Motion Filing Deadline: February 28, 2024; 1 6. Pretrial Conference: August 26, 2024, at 1:30 p.m., in Courtroom 4; and 2 7. Trial: October 22, 2024, at 8:30 a.m., in Courtroom 4. 3 (Id.) 4 II. 5 LEGAL STANDARDS 6 This Court generally has significant discretion and authority to control the conduct of 7 discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Federal Rule of Civil 8 Procedure 16(b) provides that the district court must issue a scheduling order that limits “the time 9 to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 10 16(b)(3)(A). A scheduling order “may be modified only for good cause and with the judge’s 11 consent.” Fed. R. Civ. P. 16(b)(4). 12 The “good cause” standard “primarily considers the diligence of the party seeking the 13 amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To 14 establish good cause, the party seeking the modification of a scheduling order must generally show 15 that even with the exercise of due diligence, they cannot meet the requirement of that order. Id. 16 The prejudice to other parties, if any, may be considered, but the focus is on the moving party’s 17 reason for seeking the modification. Id. If the party seeking to amend the scheduling order fails to 18 show due diligence the inquiry should end, and the court should not grant the motion to modify. 19 Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing 20 Mammoth Recreations, 975 F.2d 604 at 609). “Relevant inquiries [into diligence] include: whether 21 the movant was diligent in helping the court to create a workable Rule 16 order; whether matters 22 that were not, and could not have been, foreseeable at the time of the scheduling conference caused 23 the need for amendment; and whether the movant was diligent in seeking amendment once the 24 need to amend became apparent.” United States ex rel. Terry v. Wasatch Advantage Grp., LLC, 25 327 F.R.D. 395, 404 (E.D. Cal. 2018) (internal quotation marks and citation omitted) (alteration in 26 original). 27 It is “significant” when a party is seeking a “retroactive reopening” of discovery rather than 28 extending the discovery deadline. West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1 1524 (9th Cir. 1990). “The difference [between the two types of requests] is considerable” because 2 “a request for an extension acknowledges the importance of a deadline, [while] a retroactive 3 request suggests that the party paid no attention at all to the deadline.” Id. When ruling on a 4 motion to amend a Rule 16 scheduling order to reopen discovery, the Court is to “consider the 5 following factors: 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the 6 non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining 7 discovery within the guidelines established by the court, 5) the foreseeability of the need for 8 additional discovery in light of the time allowed for discovery by the district court, and 6) the 9 likelihood that the discovery will lead to relevant evidence.” City of Pomona v. SQM N. Am. 10 Corp., 866 F.3d 1060, 1066 (9th Cir. 2017). 11 III. 12 DISCUSSION 13 On October 31, 2023, the parties filed a stipulation to extend the case schedule, which the 14 Court construes as a stipulated motion to modify the scheduling order. (ECF No. 9.) The parties 15 stipulate to an extension of the October 27, 2023 non-expert discovery deadline and all subsequent 16 deadlines by ninety (90) days. (Id. at 2.) The parties proffer they exchanged written discovery in 17 spring 2023 and subsequently spent the next several months engaged in informal settlement 18 negotiations. (Id. at 2.) The parties eventually agreed that deposing Plaintiff was necessary before 19 settlement negotiations could continue and Plaintiff’s counsel agreed to “grant Defendant 20 deposition priority.” (Id.) The parties represent Plaintiff’s deposition was initially scheduled for 21 July 2023, but had to be rescheduled multiple times due to continued settlement efforts or 22 scheduling conflicts. (Id.) On October 17, 2023, Defendant took Plaintiff’s deposition. (Id.) 23 Plaintiff has not deposed any of Defendant’s witnesses. (Id.) 24 A. The Parties’ Stipulated Motion to Extend the Non-Expert Discovery Deadline 25 The non-expert discovery deadline expired on October 27, 2023. (ECF No. 9.) The parties 26 filed the instant stipulated motion to extend non-expert discovery on October 31, 2023. The parties 27 are therefore requesting that the Court sanction the parties’ “retroactive reopening” of non-expert 28 discovery to allow Plaintiff to begin deposing Defendant’s witnesses. West Coast Theater Corp., 1 897 F.2d at 1524 (noting a “considerable” difference between a motion to retroactively reopen 2 discovery and a request to extend the discovery deadline). Upon consideration of the legal 3 standards and the above proffered reasons for good cause, the Court finds the parties have not been 4 diligent and will not grant the parties’ motion to reopen non-expert discovery for an additional 5 ninety days. In the January 31, 2023 scheduling order, the Court expressly stated: 6 The parties are cautioned that the discovery/expert cut-off deadlines are the dates by which all discovery must be completed. Absent 7 good cause, discovery motions will not be heard after the discovery deadlines. Moreover, absent good cause, the Court will only grant 8 relief on a discovery motion if the relief requested requires the parties to act before the expiration of the relevant discovery 9 deadline. In other words, discovery requests and deposition notices must be served sufficiently in advance of the discovery deadlines to 10 permit time for a response, time to meet and confer, time to prepare, file and hear a motion to compel and time to obtain relief on a 11 motion to compel. Counsel are expected to take these contingencies into account when proposing discovery deadlines. Compliance with 12 these discovery cutoffs requires motions to compel be filed and heard sufficiently in advance of the discovery cutoff so that the 13 Court may grant effective relief within the allotted discovery time. A party's failure to have a discovery dispute heard sufficiently in 14 advance of the discovery cutoff may result in denial of the motion as untimely. 15 16 (ECF 8 at 3 (emphasis in original).) 17 The parties have not demonstrated that even with the exercise of due diligence, they could 18 not meet the requirements of the scheduling order. In their stipulation, the parties represent they 19 completed written discovery in “spring 2023,” then engaged in settlement negotiations for “several 20 months” and, in those discussions, agreed to “grant Defendant deposition priority” to depose 21 Plaintiff before Plaintiff deposed Defendant’s witnesses. (ECF No. 9 at 2.) The parties proffer 22 they attempted to schedule Plaintiff’s deposition in July 2023 but, due to scheduling conflicts, 23 could not depose Plaintiff until October 17, 2023. (Id.) Thus, there was a stagnant ten-day period 24 between the completion of Plaintiff’s deposition and the non-expert discovery deadline. Clearly, 25 the parties should have moved for modification of the scheduling order earlier than the date the 26 instant motion was submitted. The parties have provided no reason why they did not present this 27 foreseeable motion to the Court at an earlier date, despite the Court’s express “caution[]” to the 28 parties regarding the requirements for discovery deadlines in the January 31, 2023 scheduling 1 order. (ECF 8 at 3.) The Court also considers the relatively short timeframe between the non- 2 expert discovery deadline on October 27, 2023 and the parties’ filing of the instant motion on 3 October 31, 2023. However, the Ninth Circuit has affirmed a court’s similar denial of a motion to 4 reopen discovery made just three days after the original discovery period ended. See West Coast 5 Theater Corp., 897 F.2d at 1524. 6 While this is a stipulated motion—which the Court recognizes is supported by a declaration 7 from Defendant’s counsel—and there is no demonstration of prejudice to any party, the moving 8 parties have not demonstrated diligence in adhering to the guidelines first proposed by the parties 9 in the joint scheduling order (ECF No. 6), then confirmed by the parties at the January 31, 2023 10 status conference (ECF No. 7), and then established by the Court in the January 31, 2023 11 scheduling order (ECF No. 8). Further, although there may be additional relevant discovery to be 12 uncovered given Plaintiff has yet to take any depositions, the foreseeability of the need for Plaintiff 13 to take depositions of defense witnesses was clearly present at earlier points in this litigation, 14 namely after written discovery was exchanged in the spring of 2023 until the non-expert discovery 15 deadline on October 27, 2023. See City of Pomona, 866 F.3d at 1066. The Court finds the lack of 16 diligence in failing to move the Court at an earlier date leads the Court to conclude the parties’ 17 stipulated motion to reopen fact discovery and modify the scheduling order is not supported by 18 good cause. 19 The Court notes that the parties may agree to conduct non-expert discovery after the 20 October 27, 2023 deadline. The Court will not prohibit the parties from doing so. However, if the 21 parties agree to engage non-expert discovery after October 27, 2023, any motion to compel or other 22 non-expert discovery motion made to the Court “will result in denial of the motion as untimely.” 23 (See ECF 8 at 3). Accordingly, the Court denies the parties’ stipulated motion to reopen non- 24 expert discovery. 25 B. The Parties’ Stipulated Motion to Extend the Remaining Deadlines 26 The parties proffer that they have agreed to extend the following deadlines by ninety days: 27 (1) expert disclosure deadline on November 20, 2023; (2) supplemental expert disclosure deadline 28 on December 22, 2023; (3) expert discovery deadline on February 2, 2024; (4) dispositive motion eee IR III IER ISD EEE III OEE ES ESE! NED OE
1 |filing deadline on February 28, 2025; (5) the pretrial conference set for August 26, 2024; and (6) 2 |the jury trial set for October 22, 2023. (ECF No. 9 at 2.) 3 The Court finds good cause to grant the timely stipulated extension of the above-listed 4 |deadlines; however, finds a ninety-day extension of each deadline to be excessive without a 5 |reasonable explanation as to the requested timeframe. Therefore, the Court will grant the parties’ 6 |stipulated extension to modify all deadlines after the expired non-expert discovery deadline for 7 |sixty (60) days. Should the parties require an additional modification to the deadlines in the instant 8 laction, the parties may make such a request in conformance with the scheduling order. ! 9 V. 10 CONCLUSION AND ORDER 11 Based on the foregoing, IT IS HEREBY ORDERED that: 12 1. The parties’ stipulation to reopen non-expert discovery is DENIED; 13 2. The parties’ stipulation to modify the scheduling order in GRANTED, but is 14 limited to a sixty (60) day extension of each deadline other than non-expert 15 discovery as follows: 16 a. Expert Disclosure Deadline: January 19, 2024; 17 b. Supplemental Expert Disclosure Deadline: February 20, 2024; 18 C. Expert Discovery Deadline: April 2, 2024; 19 d. Dispositive Motion Filing Deadline: April 29, 2024; 20 e. Pretrial Conference: October 28, 2024, at 1:30 p.m., in Courtroom 4; and 21 f. Trial: January 7, 2025, at 8:30 a.m., in Courtroom 4. 7 IT IS SO ORDERED. DAM Le 23 || Dated: _ November 2, 2023
UNITED STATES MAGISTRATE JUDGE
25 26 | “Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting 27 the relief requested. The parties are advised that due to the impacted nature of civil cases on the district judges in the Eastern District of California, Fresno Division, that stipulations to continue set dates are 28 disfavored and will not be granted absent good cause.” (ECF No. 8 at 7 (emphasis in original).)