Yammine v. Toolbox for HR Spolka z Ograniczona Odpowiedzialnoscia Spolka Komandytowa

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Marco Yammine, No. CV-21-00093-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Toolbox for HR Spolka z Ograniczona Odpowiedzialnoscia Spolka Komandytowa, 13 14 Defendant. 15 Before the Court is Toolbox for HR Spόlka Z Ograniczoną Odpowiedzialnoṡcią 16 Spόlka Komandytowa’s (“Toolbox’s”) Notice of Motion for the Third Extension of the 17 Fact Discovery Deadline and Modifying the Scheduling Order (“Third Motion for 18 Extension”) (Doc. 81) and Plaintiff’s Memorandum of Law in Opposition to Defendant’s 19 Motion for the Extension of Time (Doc. 84). Having carefully considered the briefing in 20 this matter, Toolbox’s Third Motion for Extension will be denied. 21 I. 22 Normally, “[a] schedule may be modified only for good cause and with the judge’s 23 consent.” Fed. R. Civ. P. 16(b)(4). Under this standard, “[t]he pretrial schedule may be 24 modified if it cannot reasonably be met despite the diligence of the party seeking the 25 extension. If the party seeking the modification was not diligent, the inquiry should end 26 and the motion to modify should not be granted.” Zivkovic v. S. Cal. Edison Co., 302 27 F.3d 1080, 1087 (9th Cir. 2002) (internal quotation marks and citation omitted). 28 “Although the existence or degree of prejudice to the party opposing the modification 1 might supply additional reasons to deny a motion, the focus of the inquiry is upon the 2 moving party’s reasons for seeking modification.” Johnson v. Mammoth Recreations, 3 Inc., 975 F.2d 604, 609 (9th Cir. 1992). “If that party was not diligent, the inquiry should 4 end.” Id. “Federal courts in Arizona and within the Ninth Circuit ‘have articulated and 5 undertaken a three-step inquiry in resolving the question of diligence in the context of 6 determining good cause under Rule 16.’” Upton v. Corizon Health Care Inc., No. CV-17- 7 01502-PHX-JAT, 2019 WL 581274, at *3 (D. Ariz. Feb. 12, 2019) (quoting Morgal v. 8 Maricopa County Bd. of Supervisors, 284 F.R.D. 452, 460 (D. Ariz. June 6, 2012)) 9 (brackets omitted). Those three steps are: 10 (1) that he was diligent in assisting the court in creating a 11 workable Rule 16 order; (2) that his noncompliance with a 12 Rule 16 deadline occurred or will occur, notwithstanding his diligent efforts to comply, because of the development of 13 matters which could not have been reasonably foreseen or 14 anticipated at the time of the Rule 16 scheduling conference; and (3) that he was diligent in seeking amendment of the Rule 15 16 order, once it became apparent that he could not comply 16 with the order. 17 18 Id. (quoting Morgal, 284 F.R.D. at 460). The moving party bears the burden of proving 19 that the three steps are met. Morgal, 284 F.R.D. at 460. 20 II. 21 Looking at the first Morgal step, Defendant was diligent in assisting the court in 22 creating a workable Rule 16 scheduling order. Defendant participated in a telephonic 23 scheduling conference with this Court on July 8, 2021. (Doc. 49; see Doc. 50.) But 24 Defendant does not satisfy the second step. As noted in Plaintiff’s brief, Defendant did 25 not serve discovery requests until March 18, 2022, the last day possible day to serve 26 those requests. (Doc. 84 at 5.) That there would be conflict between the parties on the 27 appropriate scope of written discovery which could slow down the fact discovery 28 process, including taking depositions, was reasonably foreseeable. 1 What is more, the March 18, 2022, deadline for written discovery was already the 2|| product of an extension that the Court granted on January 26, 2022. (Doc. 63.) The || original written discovery deadline was December 18, 2021. (Doc. 62.) On January 26, 4|| 2022, a full 39 days after the first motion for extension of discovery deadlines was filed, 5 || the parties requested an extension until March 18, 2022. (Doc. 62.) Clearly, Defendant 6|| has not been diligent in this case—he filed on the last day of the new deadline. 7 In that same order, the Court granted other lengthy discovery deadline extensions, 8 || including the deadline for fact discovery, with the caveat that it would grant “no further 9|| extensions absent a showing of extraordinary circumstances.” (Doc. 63.) An extraordinary circumstance did arise, and this Court granted an additional two-week 11} extension of the fact discovery deadline. (Doc. 77.) In that order, the Court again noted that it would not grant another extension “absent a showing of extraordinary 13 || circumstances.” (/d.) That some disputes have arisen between the parties over the scope 14|| of discovery requests is not “extraordinary.” 15 Defendant has not satisfied its burden under the second step. The Court need not proceed further. Defendant has not shown that it acted with diligence in trying to meet the 17 || discovery deadlines. 18 Il. 19 Accordingly, 20 IT IS ORDERED denying Toolbox’s Third Motion for Extension. 21 Dated this 25th day of May, 2022. 22 Wicheal T. Fburde Michael T. Liburdi 25 United States District Judge 26 27 28

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