1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Southern Counties Oil Company, No. CV-18-02307-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Lucas Henry, et al.,
13 Defendants. 14 15 Pending before the Court is the parties’ seventh stipulation to extend deadlines. 16 (Doc. 137.) As explained below, the Court requires more information before deciding 17 whether to grant the stipulation. 18 BACKGROUND 19 On July 23, 2018, Plaintiff filed the complaint. (Doc. 1.) 20 On October 31, 2018, the undersigned judge inherited this case. (Doc. 42.) 21 On December 17, 2018, the Court issued a scheduling order, setting various 22 deadlines including a November 1, 2019 deadline for fact and expert discovery and a 23 December 20, 2019 deadline for dispositive motions. (Doc. 51.) The order emphasized 24 that “the Court intends to enforce the deadlines set forth in this Order, and the parties should 25 plan their litigation activities accordingly.” (Id. at 7.) 26 The Court has since extended the deadlines, at the parties’ requests, six times. 27 (Docs. 64, 78, 96, 122, 130, 132.) The last time was on June 10, 2021, at which point the 28 Court included and emphasized an express warning to the parties: “No further extensions 1 will be granted.” (Doc. 132.) 2 The Court’s June 10, 2021 order extended the discovery deadline to November 1, 3 2021 and the dispositive motions deadline to November 29, 2021. (Id.) The extended 4 discovery deadline—which was exactly two years later than the original discovery deadline 5 and just shy of three years from the start of discovery—allowed the parties over four and a 6 half additional months to conclude discovery. 7 Nevertheless, despite having been warned that no further extensions would be 8 granted, the parties scheduled three fact witness depositions for the week before the 9 discovery deadline, such that if the depositions had to be canceled for any reason—a not- 10 uncommon occurrence—there would be no way to conclude discovery by the Court’s six- 11 times-extended and final deadline. (Doc. 137 at 3.) 12 On October 20, 2021, one of Plaintiff’s attorneys, Philip K. Lem, learned that his 13 daughter’s third grade class was exposed to Covid-19. (Id.) The following day, Mr. Lem’s 14 daughter took a Covid-19 test, and on October 22, 2021, she received a positive result. 15 (Id.) Following CDC guidance, Plaintiff needed to isolate due to his daughter’s positive 16 test result. (Id.) Because it was “Defendant’s preference that the scheduled depositions 17 take place in person,” the parties cancelled the depositions. (Id.) They then waited several 18 more days, until the day of the fact discovery deadline, to inform the Court of the parties’ 19 decision to cancel the eleventh-hour depositions (rather than trying to find some way to 20 make them happen) and to request an additional 90-day extension for all pending deadlines. 21 (Doc. 137.) 22 DISCUSSION 23 The Court is responsible for securing “the just, speedy, and inexpensive 24 determination of every action and proceeding.” Fed. R. Civ. P. 1. To that end, the Court 25 must, “as soon as practicable” at the dawn of every litigation, issue a scheduling order, 26 which “must limit the time to . . . complete discovery, and file motions.” Fed. R. Civ. P. 27 16(b)(2)-(3). Pursuant to Rule 16(b)(4), the Court’s “schedule may be modified only for 28 good cause” and with the Court’s consent. “Rule 16(b)’s ‘good cause’ standard primarily 1 considers the diligence” of the party or parties seeking to modify the scheduling order. 2 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “The district 3 court may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence 4 of the party seeking the extension.’” Id. “If that party was not diligent, the inquiry should 5 end.” Id. “[A]s a practical matter, extraordinary circumstances is a close correlate of good 6 cause” and is “not intended to be a less rigorous standard than good cause.” Id. at 610. 7 The parties assert that “good cause exists to extend pending deadlines by 90 days” 8 due to what the parties characterize as “extraordinary circumstances.” (Id. at 2.) The Court 9 is not so sure. At this point, nineteen months into the pandemic, isolating due to Covid-19 10 exposure has become commonplace and is but one of the many mundane logistical reasons 11 why a deposition might need to be rescheduled or conducted by different means or by 12 different attorneys. Because the parties scheduled the depositions for the week before the 13 deadline—thereby putting themselves in a situation in which the depositions could not be 14 rescheduled before the final deadline—the parties should have found a way to ensure the 15 depositions were not cancelled. The depositions could have been conducted remotely via 16 videoconferencing, which has become increasingly common during the pandemic. United 17 States for use & benefit of Chen v. K.O.O. Constr., Inc., 445 F. Supp. 3d 1055, 1057 (S.D. 18 Cal. 2020) (“While the Court is sympathetic to the challenges to the legal community 19 during this pandemic, attorneys and litigants are adapting to new ways to practice law, 20 including preparing for and conducting depositions remotely. In addition to finding no 21 good cause to extend fact discovery for sixty days, the Court also finds the parties have not 22 diligently sought to complete depositions because they are rejecting the use of remote 23 videoconference depositions for reasons of convenience and not true prejudice.”). It is not 24 clear to the Court that “Defendants’ preference that the scheduled depositions take place in 25 person” (Doc. 137 at 3) was a good enough reason for the parties to disregard the urgency 26 of completing the depositions before the deadline, particularly where no explanation has 27 been provided for that preference. Alternatively, even assuming the depositions needed to 28 be conducted in person for some unspecified reason, the parties have not explained why 1 another of Plaintiff’s three attorneys could have conducted them. At the very least, if the 2 parties could not troubleshoot this emergency of their own making, the parties could have 3 brought the issue to the Court’s attention when Mr. Lem learned he would have to isolate, 4 before cancelling the depositions, instead of cancelling the depositions and waiting until 5 the discovery period elapsed before seeking an extension. 6 Even if the circumstances were truly “extraordinary,” this situation could have 7 easily been avoided by scheduling all depositions by early October, to allow time for them 8 to be rescheduled if necessary. Mori v. Baroni, 2008 WL 2509143, *3 (E.D. Cal. 2008) 9 (“Plaintiffs’ lack of prior planning is not this court’s emergency.”). This approach raises 10 an inference that the parties failed to “plan their litigation activities” in a manner that 11 ensured compliance with the deadlines. (Doc. 51.) 12 The Court further notes that Plaintiff has not made any effort to demonstrate the 13 importance of the three remaining depositions. United States v. Cathcart, 2009 WL 14 1817006, *2 (N.D. Cal. 2009) (parties failed to “persuasively demonstrate that the 15 deposition testimony is necessary to support their dispositive motion(s)”). 16 The parties appear to have simply assumed the extension would be granted, despite 17 the Court’s express warning that no further extensions would be granted. This assumption 18 was unfortunate. Jimenez v. Montgomery, 2016 WL 4060099, *1 (C.D. Cal.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Southern Counties Oil Company, No. CV-18-02307-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Lucas Henry, et al.,
13 Defendants. 14 15 Pending before the Court is the parties’ seventh stipulation to extend deadlines. 16 (Doc. 137.) As explained below, the Court requires more information before deciding 17 whether to grant the stipulation. 18 BACKGROUND 19 On July 23, 2018, Plaintiff filed the complaint. (Doc. 1.) 20 On October 31, 2018, the undersigned judge inherited this case. (Doc. 42.) 21 On December 17, 2018, the Court issued a scheduling order, setting various 22 deadlines including a November 1, 2019 deadline for fact and expert discovery and a 23 December 20, 2019 deadline for dispositive motions. (Doc. 51.) The order emphasized 24 that “the Court intends to enforce the deadlines set forth in this Order, and the parties should 25 plan their litigation activities accordingly.” (Id. at 7.) 26 The Court has since extended the deadlines, at the parties’ requests, six times. 27 (Docs. 64, 78, 96, 122, 130, 132.) The last time was on June 10, 2021, at which point the 28 Court included and emphasized an express warning to the parties: “No further extensions 1 will be granted.” (Doc. 132.) 2 The Court’s June 10, 2021 order extended the discovery deadline to November 1, 3 2021 and the dispositive motions deadline to November 29, 2021. (Id.) The extended 4 discovery deadline—which was exactly two years later than the original discovery deadline 5 and just shy of three years from the start of discovery—allowed the parties over four and a 6 half additional months to conclude discovery. 7 Nevertheless, despite having been warned that no further extensions would be 8 granted, the parties scheduled three fact witness depositions for the week before the 9 discovery deadline, such that if the depositions had to be canceled for any reason—a not- 10 uncommon occurrence—there would be no way to conclude discovery by the Court’s six- 11 times-extended and final deadline. (Doc. 137 at 3.) 12 On October 20, 2021, one of Plaintiff’s attorneys, Philip K. Lem, learned that his 13 daughter’s third grade class was exposed to Covid-19. (Id.) The following day, Mr. Lem’s 14 daughter took a Covid-19 test, and on October 22, 2021, she received a positive result. 15 (Id.) Following CDC guidance, Plaintiff needed to isolate due to his daughter’s positive 16 test result. (Id.) Because it was “Defendant’s preference that the scheduled depositions 17 take place in person,” the parties cancelled the depositions. (Id.) They then waited several 18 more days, until the day of the fact discovery deadline, to inform the Court of the parties’ 19 decision to cancel the eleventh-hour depositions (rather than trying to find some way to 20 make them happen) and to request an additional 90-day extension for all pending deadlines. 21 (Doc. 137.) 22 DISCUSSION 23 The Court is responsible for securing “the just, speedy, and inexpensive 24 determination of every action and proceeding.” Fed. R. Civ. P. 1. To that end, the Court 25 must, “as soon as practicable” at the dawn of every litigation, issue a scheduling order, 26 which “must limit the time to . . . complete discovery, and file motions.” Fed. R. Civ. P. 27 16(b)(2)-(3). Pursuant to Rule 16(b)(4), the Court’s “schedule may be modified only for 28 good cause” and with the Court’s consent. “Rule 16(b)’s ‘good cause’ standard primarily 1 considers the diligence” of the party or parties seeking to modify the scheduling order. 2 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “The district 3 court may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence 4 of the party seeking the extension.’” Id. “If that party was not diligent, the inquiry should 5 end.” Id. “[A]s a practical matter, extraordinary circumstances is a close correlate of good 6 cause” and is “not intended to be a less rigorous standard than good cause.” Id. at 610. 7 The parties assert that “good cause exists to extend pending deadlines by 90 days” 8 due to what the parties characterize as “extraordinary circumstances.” (Id. at 2.) The Court 9 is not so sure. At this point, nineteen months into the pandemic, isolating due to Covid-19 10 exposure has become commonplace and is but one of the many mundane logistical reasons 11 why a deposition might need to be rescheduled or conducted by different means or by 12 different attorneys. Because the parties scheduled the depositions for the week before the 13 deadline—thereby putting themselves in a situation in which the depositions could not be 14 rescheduled before the final deadline—the parties should have found a way to ensure the 15 depositions were not cancelled. The depositions could have been conducted remotely via 16 videoconferencing, which has become increasingly common during the pandemic. United 17 States for use & benefit of Chen v. K.O.O. Constr., Inc., 445 F. Supp. 3d 1055, 1057 (S.D. 18 Cal. 2020) (“While the Court is sympathetic to the challenges to the legal community 19 during this pandemic, attorneys and litigants are adapting to new ways to practice law, 20 including preparing for and conducting depositions remotely. In addition to finding no 21 good cause to extend fact discovery for sixty days, the Court also finds the parties have not 22 diligently sought to complete depositions because they are rejecting the use of remote 23 videoconference depositions for reasons of convenience and not true prejudice.”). It is not 24 clear to the Court that “Defendants’ preference that the scheduled depositions take place in 25 person” (Doc. 137 at 3) was a good enough reason for the parties to disregard the urgency 26 of completing the depositions before the deadline, particularly where no explanation has 27 been provided for that preference. Alternatively, even assuming the depositions needed to 28 be conducted in person for some unspecified reason, the parties have not explained why 1 another of Plaintiff’s three attorneys could have conducted them. At the very least, if the 2 parties could not troubleshoot this emergency of their own making, the parties could have 3 brought the issue to the Court’s attention when Mr. Lem learned he would have to isolate, 4 before cancelling the depositions, instead of cancelling the depositions and waiting until 5 the discovery period elapsed before seeking an extension. 6 Even if the circumstances were truly “extraordinary,” this situation could have 7 easily been avoided by scheduling all depositions by early October, to allow time for them 8 to be rescheduled if necessary. Mori v. Baroni, 2008 WL 2509143, *3 (E.D. Cal. 2008) 9 (“Plaintiffs’ lack of prior planning is not this court’s emergency.”). This approach raises 10 an inference that the parties failed to “plan their litigation activities” in a manner that 11 ensured compliance with the deadlines. (Doc. 51.) 12 The Court further notes that Plaintiff has not made any effort to demonstrate the 13 importance of the three remaining depositions. United States v. Cathcart, 2009 WL 14 1817006, *2 (N.D. Cal. 2009) (parties failed to “persuasively demonstrate that the 15 deposition testimony is necessary to support their dispositive motion(s)”). 16 The parties appear to have simply assumed the extension would be granted, despite 17 the Court’s express warning that no further extensions would be granted. This assumption 18 was unfortunate. Jimenez v. Montgomery, 2016 WL 4060099, *1 (C.D. Cal. 2016) 19 (“[R]espondent should not have assumed, as he apparently did, that the Court would grant 20 the extension.”); Spears v. City of Indianapolis, 74 F.3d 153, 158 (7th Cir. 1996) (“If the 21 court allows litigants to continually ignore deadlines and seek neverending extensions 22 without consequence, soon the court’s scheduling orders would become meaningless.”); 23 see also In re Benham, 2013 WL 3872185, *10 (C.D. Cal. 2013) (“Multiple requests to 24 extend the same deadline are generally disfavored.”). 25 Because the parties have not been diligent, “the inquiry should end.” Johnson, 975 26 F.2d at 609. However, the practical result of denying this stipulation would be that Plaintiff 27 would not have the opportunity to complete three depositions, and the Court is concerned 28 that perhaps Plaintiff was forced to schedule the depositions so close to the deadline 1 || because the deponents would not make themselves available at an earlier date, and then the 2|| depositions were cancelled because Defendants were being inflexible and refusing to 3 || conduct the depositions via videoconferencing.! If this were the case, Plaintiff should have 4|| immediately brought this to the Court’s attention—before the depositions were cancelled. || Nevertheless, the Court does not want Plaintiff to suffer prejudice if Defendants’ 6 || inflexibility caused the conflict. Furthermore, although at this point Covid-19 isolation 1s || not an “extraordinary” circumstance, the Court is sympathetic to an attorney who is forced 8 || to scramble when his third-grader tests positive. 9 Although the parties filed a joint motion, Plaintiff is the party in need of relief and || is, for the purposes of this motion, the party whose diligence is at issue. Thus, the Court 11 || will hold a hearing to determine whether Plaintiff was diligent enough to merit an extension || of time. (The parties are cautioned up front that, in the event an extension is granted, it 13 || will be a shorter extension than the requested 90 days.) At the hearing, the parties should be prepared to offer (1) a more in-depth explanation of the events precipitating the joint 15 || motion and (2) a proposed solution that will not delay this case three more months. 16 Accordingly, 17 IT IS ORDERED that a telephonic hearing on the parties’ joint motion for 18 || extension of time (Doc. 137) is set for November 5, 2021 at 9:00 a.m. Arizona time. 19 || Counsel are directed to call (866) 390-1828; Access Code: 9667260 five minutes prior to 20 || the scheduled hearing. Counsel are advised that speaker phones, headsets and connection through the internet are not permitted. 22 Dated this 3rd day of November, 2021. 23 im a 24 } t _ Dominic W. Lanza 25 United States District Judge 26 27 28 _To be clear, the parties’ bare-bones stipulation does not suggest that Defendants’ inflexibility was the cause of the current situation. The Court is simply speculating about the existence of potential extenuating circumstances that weren’t brought to its attention.
_5-