Stemmelin v. Matterport, Inc.

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

10 JOHN STEMMELIN, 11 Plaintiff, No. C 20-04168 WHA

12 v.

13 MATTERPORT, INC., et al., ORDER DENYING MOTION TO MODIFY SCHEDULING ORDER 14 Defendants. AND VACATING HEARING

15 16 17 In this false and deceptive advertising action, plaintiff seeks to modify the scheduling 18 order to file a motion for partial summary judgment. This motion is appropriate for disposition 19 on the papers. See Civ. L.R. 7-6. 20 This is not the first time a party herein has sought to modify the schedule of this 21 litigation. As detailed in an October 2021 order, the parties largely squandered seven months 22 of discovery opportunity, with defendant producing only eleven documents, and plaintiff 23 failing to raise any issues whatsoever with the Court until a mere three weeks before the 24 deadline for the motion for class certification. The October 2021 order gave the parties a 25 revised schedule and left them with a warning: “This order stresses to both parties that further 26 changes to the schedule will not be made lightly and will require a compelling justification” 27 (Dkt. No. 70). The new deadline for the motion for class certification was December 23, 2021, 1 Now, months after the (extended) dispositive motion deadline, plaintiff seeks to file a 2 motion for partial summary judgment. Per Rule 16(b)(4), a case schedule can be modified for 3 good cause “if it cannot reasonably be met despite the diligence of the party seeking the 4 extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 5 Plaintiff has failed to meet this standard. He primarily stresses that it was not appropriate 6 to move for summary judgment prior to a decision on class certification. The class 7 certification motion was denied on March 14, 2022, more than three months before the 8 dispositive motion deadline. By design, this gave plaintiff more than enough time to prepare a 9 summary judgment motion. Indeed, plaintiff did not even raise this motion until more than 10 two months after the deadline passed. At no point during the interim did plaintiff raise the 11 issue of needing more time. In short, plaintiff has not been diligent. 12 The withdrawal of plaintiff's co-counsel has no bearing on these issues. Nor does 5 13 permitting summary judgment now serve judicial economy. The motion is DENIED. The 14 hearing is VACATED. IT IS SO ORDERED. 16

= 17 Dated: October 12, 2022.

19 A Mm ee LIAM ALSUP 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28