Robin Lambert v. National Railroad Passenger Corporation et al

Filing 21

ORDER by Judge Dean D. Pregerson: granting 17 Ex Parte Application that the scheduling order is hereby modified with the dates continued as follows:FACT DISCOVERY CUT-OFF: 3/13/15;EXPERT DISCOVERY CUT-OFF: 1/26/15;LAST DAY TO FILE MOTIONS: 3/9/15;FINAL PRE TRIAL CONFERENCE: 6/1/15, at 11:00 a.m.;6 DAY JURY TRIAL: 6/9/15, at 9:00 a.m. (lc). Modified on 11/24/2014 .(lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBIN LAMBERT,

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Plaintiff,
v.
NATIONAL RAILROAD PASSENGER
CORPORATION dba AMTRAK, a
Company doing business in
California form unknown;
DIANE PITTS, an individual,
Defendants.
___________________________

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Case No. CV 13-08316 DDP (MANx)
ORDER GRANTING EX PARTE
APPLICATION FOR RELIEF FROM
DEADLINES
(DOCKET NUMBER 17)

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Plaintiff has filed an ex parte application seeking relief

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from the Court’s scheduling order of March 24, 2014.

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16(b)(4), a scheduling order “may be modified only for good cause

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and with the judge's consent.”

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submissions and the procedural history of the case, the Court finds

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good cause to modify the scheduling order.

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Under Rule

Having considered the parties’

“Rule 16(b)’s ‘good cause’ standard primarily considers the

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diligence of the party seeking the amendment.”

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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argue that Plaintiff has not been diligent in pursuing discovery,

Johnson v. Mammoth
Defendants

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because she had from March to October to seek the depositions and

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information she now seeks and did not do so, despite having raised

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the possibility of deposing at least two of the witnesses in

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question.

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(Opp’n § III.C.1.)

But “diligence” presumes that things are functioning normally.

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“Good cause” may be satisfied where there are “extraordinary” or

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“extenuating circumstances.”

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Court finds such an extraordinary circumstance in the total

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breakdown in communication between lawyer and client following

Johnson, 975 F.2d at 610.

Here the

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mediation on August 18, 2014.

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also Opp’n at 8:16.)

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for discovery to continue, because attorney and client could not

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coordinate efforts and play their respective roles.

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(See generally Dkt. No. 12.

See

That breakdown made it essentially impossible

Defendants argue that Plaintiff and her counsel should have

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pursued this discovery “in the many months prior to the mediation.”

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(Opp’n at 8:18.)

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breakdown in the attorney-client relationship, it is easy to say

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that pursuing the discovery earlier would have been prudent.

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from Plaintiff’s counsel’s representations at oral arguments on the

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motion to withdraw, it appears that all sides initially believed

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the mediation was likely to lead to a successful settlement.

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if it did not, there were still nearly two months remaining on the

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clock for fact discover afterward.

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2014.)

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neglecting their duty of diligence in not pursuing this discovery

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prior to the mediation.

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With hindsight, knowing that there would be a

But

And

(Scheduling Order, March 24,

Thus, Plaintiff and her counsel were not necessarily

Additionally, Plaintiff’s attorney likely did not expect to
remain as counsel after his motion to withdraw, and it would have
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been reasonable of him to expect that the Court would grant new

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counsel an extension of time to repair any deficiencies in

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discovery that would have resulted from the failure of the

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relationship with prior counsel.

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ruled that counsel could not withdraw, the same need to repair the

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damage done in the period when the relationship was non-functional

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nonetheless exists.

Although the Court ultimately

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Defendants also argue that Plaintiff’s ex parte application is

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barred by Rule 6(b)(1)(B), which states that the court may extend a

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deadline “with or without motion” before the deadline has passed or

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“on motion” if it has already passed.

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motion” means a noticed motion, and therefore the ex parte

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application is untimely because the fact discovery cut-off from

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which Plaintiff seeks relief has already passed.

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10.)

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their merits, even after the deadline has passed.

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United Student Aid Funds, Inc., No. 13CV1845-L BLM, 2014 WL

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4658744, at *3 (S.D. Cal. Sept. 17, 2014); Baker v. Ensign, No.

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11-CV-2060-BAS WVG, 2014 WL 4352167, at *4-5 (S.D. Cal. Aug. 29,

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2014).

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noticed motion is required nonetheless addresses the merits of the

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ex parte motion.

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AJB, 2012 WL 4061773, at *5 (S.D. Cal. Sept. 14, 2012).

Defendants argue that “on

(Opp’n at 4:4-

But courts often consider ex parte motions1 to extend time on
See Henderson v.

Even the case Defendants cite for the proposition that a

Gurvey v. Legend Films, Inc., No. 3:09-CV-00942
And Rule 6

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There is no substantive difference between an “ex parte
application” and an “ex parte motion.” “The expression ‘ex parte
motion’ is a term of art . . . . [It is] a ‘hybrid’ form of ex
parte communication: a request for action by the court made outside
the framework of the rules. These are usually captioned, ‘Ex parte
Application,’ ‘Ex parte Motion,’ or ‘Ex parte Request.’” Mission
Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490 (C.D.
Cal. 1995).
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itself contemplates that “motions,” under the rule, may be ex parte

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where appropriate.

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find the ex parte motion to be untimely.

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Fed. R. Civ. P. 6(c)(1)(A).

The Court does not

Finally, the Court finds good cause to grant ex parte relief,

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because denying the application and requiring a noticed motion in

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this case would only further delay the required discovery and the

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trial date, because both sides would be prejudiced by such

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additional delay, and because Defendants have adequately and

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eloquently stated their objections to an extension of the

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scheduling order.
The scheduling order is hereby modified with the dates
continued as follows:

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FACT DISCOVERY CUT-OFF: 3-13-15

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EXPERT DISCOVERY CUT-OFF: 1-26-15

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LAST DAY TO FILE MOTIONS: 3-9-15

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FINAL PRE TRIAL CONFERENCE: 6-1-15, at 11:00 a.m.

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6 DAY JURY TRIAL: 6-9-15, at 9:00 a.m.

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IT IS SO ORDERED.

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Dated: November 24, 2014
DEAN D. PREGERSON
United States District Judge

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