Romero v. United States Department of Justice

• Court: District Court, S.D. California
• Decided: May 17, 2022
• Docket: 3:19-cv-02138
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO ROMERO, Case No.: 19-CV-2138-JAH(WVG)

12 Plaintiff, ORDER DENYING PLAINTIFF’S EX 13 v. PARTE MOTION TO MODIFY THE SCHEDULING ORDER 14 UNITED STATES DEPARTMENT OF JUSTICE et al., 15 Defendants. 16 17 18 Pending before the Court is Plaintiff’s Ex Parte Application to Modify the 19 Scheduling Order filed on May 12, 2022 (“Ex Parte Motion”). (Doc. No. 39.) Pursuant to 20 the Court’s Civil Chamber Rules VI, Defendant Merrick B. Garland (“Defendant”) filed 21 his Opposition to Plaintiff’s Ex Parte Application to Modify Scheduling Order 22 (“Opposition”) on May 13, 2022. Plaintiff’s Ex Parte Motion requested the Court extend 23 the fact discovery deadline, mandatory settlement conference, and mandatory settlement 24 statement deadline by 60 days. For the reasons set forth below, Plaintiff’s Ex Parte Motion 25 is DENIED. 26 Rule 16(b)(4) of the Federal Rules of Civil Procedure (“Rule 16(b)(4)”) governs 27 when a Court may modify a scheduling order. In determining whether to modify a 28 scheduling order, the Court considers the “good cause” standard set out by Rule 16(b)(4). 1 Rule 16(b)(4)’s “good cause” standard primarily considers the diligence of the parties 2 seeking the amendment. The district court may modify the pretrial schedule “if it cannot 3 reasonably be met despite the diligence of the party seeking the extension.” Johnson v. 4 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citing to Fed.R.Civ.P. 16 5 advisory committee’s notes (1983 amendment); Harrison Beverage Co. v. Dribeck 6 Importers, Inc., 133 F.R.D. 463, 469 (D.N.J.1990); Amcast Indus. Corp. v. Detrex Corp., 7 132 F.R.D. 213, 217 (N.D.Ind.1990); Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 8 1987); 6A Wright, Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d 9 ed. 1990) (“good cause” means scheduling deadlines cannot be met despite party’s 10 diligence). Moreover, Civil Local Rule 16.1(b) requires all counsel “take all steps 11 necessary to bring an action to readiness for trial.” Civ. L.R. 16.1(b). 12 The Court finds good cause does not exist as Plaintiff has not made a diligent effort 13 to conduct discovery within the Scheduling Order’s deadlines, Plaintiff has unnecessarily 14 delayed in his efforts to notice and depose all necessary witnesses, and sufficient time 15 remains in the current Scheduling Order for Plaintiff to complete fact discovery. At the 16 October 20, 2021 Case Management Conference, the Parties discussed with the Court all 17 dates and deadlines to be included in the Scheduling Order. During the Case Management 18 Conference, Plaintiff represented his need for additional depositions beyond the ten 19 allowed by Rule 30 of the Federal Rules of Civil Procedure. Recognizing the substantial 20 number of depositions Plaintiff intended to take, the Court extended a total of 12 21 depositions and advised the parties to begin the discussion of scheduling depositions as 22 soon as possible. The Court also allowed an additional month for fact discovery based upon 23 its discussion with counsel and set the current deadline of June 17, 2022. The Scheduling 24 Order was issued on the same day. (Doc. No. 35.) 25 Plaintiff’s Ex Parte Motion does not support a finding that Plaintiff has diligently 26 made efforts towards completing discovery by the current deadlines set by the Court. The 27 Ex Parte Motion claims good cause exists as Defendant’s initial disclosures listed six 28 Bureau of Prison (“BOP”) witnesses who could be contacted through defense counsel and 1 “Plaintiff believed that he could easily set the depositions of these witnesses through 2 defense counsel.” (Doc. No. 39-1, at 2:4-5.) Despite the Court’s admonishment to start 3 discussions about depositions early, it appears Plaintiff did not attempt to schedule or 4 notice any depositions until May 3, 2022 – approximately five and a half months after the 5 Case Management Conference. Plaintiff now seeks additional time for fact discovery 6 claiming good cause exists as Plaintiff must track down, notice or subpoena, and depose 7 nine witnesses who are no longer BOP employees. (Doc. No. 39, at 5:15-26.) Plaintiff’s 8 Ex Parte Motion also stated he is still waiting on the last known contact information for 9 four former BOP employees, and deposing witnesses who potentially live outside of the 10 state will cause further delay to this case. Id. However, the Ex Parte Motion fails to explain 11 why Plaintiff did not investigate the whereabouts of these nine individuals as soon as 12 discovery commenced. It also failed to explain Plaintiff’s delay in investigating the location 13 of these nine individuals once Defendant provided supplemental responses on March 14, 14 2022. 15 Further, Plaintiff’s reasons why he is unable to comply with the Scheduling Order 16 despite his diligent efforts is insufficient for a finding of good cause. Plaintiff’s Ex Parte 17 Motion states the new trial date for an elder abuse case, the numerous depositions related 18 to the elder abuse case, and preparation of several motions for other cases during the 19 months of March and April 2022 are the reasons why Plaintiff is unable to complete fact 20 discovery before the deadline. However, an impacted schedule and preoccupation with 21 other cases does not constitute good cause. See Mondares v. Kaiser Foundation Hospital, 22 No. 10-CV-2676-BTM (WVG), 2011 WL 5374613, at *2 (S.D. Cal. Nov. 7, 2011) 23 (“[O]ther trials and a busy schedule . . . actually militate against a finding of diligence, as 24 counsel essentially admitted she was not diligent in this case because she was busy 25 litigating other cases.”) (original emphasis); Dunfee v. Truman Capital Advisors, LP, No. 26 12-CV-1925-BENM (DHB), 2013 WL 5603258, at *4 (S.D. Cal. Oct. 11, 2013) (“[G]ood 27 cause is not established when a party demonstrates they were preoccupied attending to 28 other matters.”). l Finally, Plaintiff has not demonstrated why he cannot complete fact discovery within 2 ||the remaining time provided by the current Scheduling Order. Although the parties have 3 ||agreed upon May 19, 2022 for Plaintiff's deposition and May 25, 2022 and May 27, 2022 4 ||for two BOP employees, it appears Plaintiff has yet to serve subpoenas on any of the five 5 || former BOP employees whom Defendant provided a last known address on May 10, 2022 6 May 12, 2022. The Ex Parte Motion also failed to explain why depositions have not 7 ||been noticed for two former BOP employees who may live locally. Plaintiff has not 8 ||demonstrated due diligence in conducting the discovery that has been exchanged to date, 9 has Plaintiff demonstrated with due diligence why he cannot complete discovery in the 10 || time remaining. 11 The Court finds Plaintiff has not made a diligent effort to conduct discovery within 12 || the Scheduling Order’s deadlines, Plaintiff has unnecessarily delayed in his efforts to notice 13 depose all necessary witnesses, and sufficient time remains in the current Scheduling 14 || Order for Plaintiff to complete fact discovery by June 17, 2022. The Court reaffirms the 15 |/deadlines and due dates in its Scheduling Order and Plaintiff's Ex Parte Motion is 16 || DENIED. 17 Due to a conflict with the Court’s calendar, the Court sua sponte CONTINUES the 18 June 21, 2022 Mandatory Settlement Conference to July 18, 2022 at 9:00 a.m. Counsel 19 submit settlement statements directly to chambers via efile _Gallo@casd.uscourts.gov 20 ||no later than July 11, 2022. 21 IT IS SO ORDERED. 22 || Dated: May 17, 2022 2 UA Ss 24 Hon. William V. Gallo 25 United States Magistrate Judge 26 27 28