Wilson v. Pan Norcal, LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] Sheryl Wilson, No. 2:18-cv-00660-KJM-KJN 12 Plaintiff, ORDER 13 v. 14 Pan NorCal, LLC, et al., IS Defendants. 16 17 Plaintiff Sheryl Wilson renews her ex parte application to continue the January 23, 2024 18 | trial date six months due to her attorney’s ongoing recovery from a cardiac emergency. As 19 | explained below, the court grants plaintiffs ex parte application. 20 | I. BACKGROUND 21 The court incorporates by reference the facts and procedural history of this case from its 22 | prior order. Prior Order, ECF No. 101. Because plaintiff did not show manifest injustice would 23 | be avoided if the trial were continued—and so did not meet the appropriate legal standard under 24 | Federal Rule of Civil Procedure 16(e)—the court denied plaintiffs first ex parte application for a 25 | continuance without prejudice to renewal. See id. Plaintiff has filed a renewed ex parte 26 | application to continue the January trial. Renewed Ex Parte Appl., ECF No. 130. Defendants 27 | oppose. See Opp’n, ECF No. 131.

1 II. LEGAL STANDARD 2 The trial in this case can be delayed only by modifying the final pretrial order. After a 3 district court issues a final pretrial order, it may modify the order “only to prevent manifest 4 injustice.” Fed. R. Civ. P. 16(e). A district court should consider four factors when deciding 5 whether to modify a final pretrial order: 6 (1) the degree of prejudice or surprise to the defendants if the order 7 is modified; (2) the ability of the defendants to cure any prejudice; 8 (3) the impact of the modification on the orderly and efficient 9 conduct of the case; and (4) any degree of willfulness or bad faith on 10 the part of the party seeking the modification. 11 Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting Byrd v. Guess, 137 F.3d 12 1126, 1131 (9th Cir. 1998), superseded by statute on other grounds as noted in Hunt). “It is the 13 moving party’s burden to show that a review of these factors warrants a conclusion that manifest 14 injustice would result if the pretrial order is not modified.” Byrd, 137 F.3d at 1132. 15 III. ANALYSIS 16 Though this ex parte application does not follow the court’s standing order, the court 17 accepts review of plaintiff’s ex parte application. The court reminds the parties they must comply 18 with the court’s standing order for any future filings. 19 Plaintiff’s ex parte application shows manifest injustice will be avoided if the trial is 20 continued. Taken together, the four factors under the Hunt test above weigh in favor of granting 21 the continuance. See Hunt, 672 F.3d at 616. 22 The first and second factors slightly weigh in favor of granting the continuance. Though 23 plaintiff’s application was submitted less than a month before the trial date, the prior application 24 and the court’s denial without prejudice to renewal provided defendants notice of the possibility 25 of a continuance. See generally Prior Order; Renewed Ex Parte Appl. It is not clear here a delay 26 would surprise defendants with new claims or new evidence. Though a continuance will cause 27 inconvenience to defendants and their witnesses, Opp’n to Prior Appl. at 2–8, ECF No. 98, a 28 continuance is necessary at this juncture because plaintiff will not have proper representation at 29 trial otherwise, see Renewed Ex Parte Appl. at 2–4. Mr. Zink has demonstrated he is not of 1 reasonable health to proceed as counsel for trial, his partner is retiring and cannot take over and 2 he has made reasonable but unsuccessful efforts to contact other qualified attorneys to represent 3 plaintiff. See id. Moreover, plaintiff’s pending application provides an explanation for the 4 timeline leading up to the first ex parte application and why a delay in the request was 5 unavoidable. See Renewed Ex Parte Appl. at 2–4; cf. Dompatci Mgmt. Sols. v. Vensure HR, Inc., 6 No. 17-02399, 2020 WL 5502359, at *2 (E.D. Cal. Sept. 11, 2020) (denying request for 7 continuance in part because the plaintiff did not demonstrate it was necessary and did not explain 8 the delay in filing the motion). Mr. Zink has also stated clear plans to find alternative counsel 9 should his health not recover in time to represent plaintiff in six months’ time. See Renewed Ex 10 Parte Appl. at 3–4. 11 The third factor, “the impact of the modification on the orderly and efficient conduct of 12 the case,” is neutral. Hunt, 672 F.3d 616 (internal citation omitted). While continuing the case 13 would cost time and money as well as disturb the preexisting court order for trial, it is also the 14 only way an orderly trial could occur. The fourth factor, willfulness or bad faith, weighs in favor 15 of a continuance. Plaintiff’s renewed application makes clear that Mr. Zink has been diligent 16 despite the difficult circumstances and there is no evidence of bad faith. See Renewed Ex Parte 17 Appl. at 2–4; cf. Dompatci Mgmt. Sols. 2020 WL 5502359, at *2 (denying request for 18 continuance in part because the plaintiff did not demonstrate why the plaintiff’s counsel’s 19 ailments prevented him from preparing for trial). 20 The court recognizes the inconvenience a continuance would pose to defendants. 21 However, plaintiff has demonstrated a continuance is necessary to prevent manifest injustice. For 22 the reasons above, the court grants plaintiff’s renewed ex parte application for continuance of 23 trial. To offset prejudice to defendants, all discovery, pre-trial and trial deadlines will not be 24 continued. See Opp’n at 3. The court directs the parties to meet and confer and request a status 25 conference regarding setting a new trial date within 90 days. The court also directs Mr. Zink to 26 file a declaration as soon as possible and no later than 60 days from the date of this order 27 regarding his efforts to identify new or co-counsel, with the goal of actually identifying such 28 counsel within the 60 days provided. ] This order resolves ECF No. 130. 2 IT IS SO ORDERED. 3 | DATED: January 3, 2024.

CHIEF f | ED STATES DISTRICT JUDGE