Securities and Exchange Commission v. Armijo

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 SECURITIES AND EXCHANGE Case No.: 3:21-cv-01107-TWR-AHG COMMISSION, 13 ORDER DENYING JOINT MOTION Plaintiff, TO CONTINUE EARLY NEUTRAL 14 EVALUATION CONFERENCE AND v. 15 CASE MANAGEMENT ROBERT JOSEPH ARMIJO and CONFERENCE 16 JOSEPH FINANCIAL, INC., 17 [ECF No. 16] Defendants.

25 26 Before the Court is the parties’ joint motion to continue the Early Neutral Evaluation 27 Conference (“ENE”) and Case Management Conference (“CMC”), currently scheduled for 28 November 12, 2021. ECF No. 16. 1 Parties seeking to continue an ENE must demonstrate good cause. ECF No. 10 at 7 2 (“An ENE may be rescheduled only upon a showing of good cause”); Chmb.R. at 2 (stating 3 that any request for continuance requires “[a] showing of good cause for the request”); see, 4 e.g., FED. R. CIV. P. 6(b) (“When an act may or must be done within a specified time, the 5 court may, for good cause, extend the time”). 6 “Good cause” is a non-rigorous standard that has been construed broadly across 7 procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 8 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to 9 amend the scheduling order and the reasons for seeking modification. Johnson v. Mammoth 10 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“[T]he focus of the inquiry is upon 11 the moving party’s reasons for seeking modification. . . . If that party was not diligent, the 12 inquiry should end.”) (internal citation omitted). Therefore, “a party demonstrates good 13 cause by acting diligently to meet the original deadlines set forth by the court.” Merck v. 14 Swift Transp. Co., No. CV-16-01103-PHX-ROS, 2018 WL 4492362, at *2 (D. Ariz. Sept. 15 19, 2018). 16 Here, the parties have represented to the Court that “Plaintiff’s lead counsel, Alise 17 Johnson, and [Plaintiff’s] Regional Trial Counsel, Andrew Schiff [], have scheduling 18 conflicts and cannot attend the ENE as currently scheduled.” ECF No. 16 at 2. Therefore, 19 the parties seek a continuance of the ENE and CMC. Id. The parties identified 20 November 19, November 22, and November 23 as mutually agreeable conference dates. 21 Id. 22 As an initial matter, the parties’ motion is deficient. First, the parties failed to provide 23 a declaration from counsel, as required by the Court’s Chambers Rules and the Court’s 24 October 5, 2021 Order. Chmb.R. at 2 (requiring that the joint motion for continuance 25 include a “declaration from counsel seeking the continuance that describes the steps taken 26 to comply with the existing deadlines, and the specific reasons why the deadlines cannot 27 be met”); ECF No. 10 at 7 (same). The Court will take the parties at their words without 28 the required declaration, but will not do so again. 1 Second, the parties’ motion failed to include specific facts or any framework for a 2 finding of diligence. The motion merely recounts that Plaintiff’s counsel and representative 3 with full settlement authority “have scheduling conflicts and cannot attend the ENE as 4 currently scheduled.” ECF No. 16 at 2. Without more, this is simply insufficient. Court 5 staff reached out to the parties for more detailed reasoning for the requested continuance, 6 and Plaintiff’s counsel responded that “[s]ince that is the day after a national holiday, [she] 7 had longstanding plans to take off that Friday to visit family,” acknowledging that the plans 8 were not “a sure thing” until more recently, when she found out “whether other family 9 members would be available.” Email to Chambers (Nov. 1, 2021 at 4:12 PM); Email to 10 Chambers (Nov. 1, 2021 at 4:53 PM). Plaintiff’s counsel also responded that “Mr. Schiff’s 11 conflict has been resolved so that he could attend the ENE but it would be without the 12 benefit of lead counsel who has been working with the Defense counsel on these matters. 13 Thus, we thought it better to ask for the short1 continuance.” Email to Chambers (Nov. 1, 14 2021 at 4:12 PM). This information should have been included in the required declaration. 15 Upon due consideration, the Court does not find good cause to grant the continuance. 16 Thus, the joint motion (ECF No. 16) is DENIED. 17 The Court now turns to Ms. Johnson’s informal email request to be excused from 18 the ENE. Email to Chambers (Nov. 1, 2021 at 4:12 PM) (“If the Court would rather keep 19 the date, then Mr. Schiff can attend”); Email to Chambers (Nov. 1, 2021 at 4:53 PM) 20 (“Given Mr. Wright’s desire to not postpone until December, it’s probably best if you 21 proceed with Mr. Schiff on that day.”). In its October 5, 2021 Order, the Court reiterated 22 that lead counsel is required to attend the ENE. ECF No. 10 at 2 (requiring attendance of 23 “the primary attorney(s) responsible for the litigation”); Id. at 4 (same); Id. at 6 (same). 24 25 26 1 During an email exchange with court staff, the parties stated their preference for the ENE 27 to be briefly continued by a few days, but not until mid-December, which was the next available date on the Court’s calendar. Email to Chambers (Nov. 1, 2021 at 4:45 PM); 28 1 || Although the request should have been brought by motion, the Court will consider it at this 2 ||time. Upon consideration,” the Court GRANTS IN PART Ms. Johnson’s request that her 3 ||attendance be excused. The Court ORDERS that Ms. Johnson be fully available on 4 ||telephonic standby during the entire ENE, which could last into the late afternoon or early 5 |}evening. Additionally, the Court reminds Mr. Schiff that “[a]ll who attend the ENE must 6 || be legally and factually prepared to discuss and resolve the case.” ECF No. 10 at 4. 7 8 IT IS SO ORDERED. 9 || Dated: November 3, 2021 Mp LS 44. 4 | ln / A 10 Honorable Allison H. Goddard United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23

25 ||? Defendants’ counsel stated that “[w]e would like to avoid a continuance of the ENE to 26 mid-December es [and] would like to hold the ENE sooner rather than later” and noted that “[a]lthough it would be valuable to have Ms. Johnson there on Zoom, I am fine with 27 |\|Mr. Schiff participating at the ENE. If the need arises on a particular issue, perhaps 28 Ms. Johnson can be available by telephone.” Email to Chambers (Nov. 1, 2021 at 4:45 PM); Email to Chambers (Nov. 1, 2021 at 5:09 PM).