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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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBIN LAMBERT, 12 13 14 15 16 17 Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION dba AMTRAK, a Company doing business in California form unknown; DIANE PITTS, an individual, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-08316 DDP (MANx) ORDER GRANTING EX PARTE APPLICATION FOR RELIEF FROM DEADLINES (DOCKET NUMBER 17) 18 19 Plaintiff has filed an ex parte application seeking relief 20 from the Court’s scheduling order of March 24, 2014. 21 16(b)(4), a scheduling order “may be modified only for good cause 22 and with the judge's consent.” 23 submissions and the procedural history of the case, the Court finds 24 good cause to modify the scheduling order. 25 Under Rule Having considered the parties’ “Rule 16(b)’s ‘good cause’ standard primarily considers the 26 diligence of the party seeking the amendment.” 27 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 28 argue that Plaintiff has not been diligent in pursuing discovery, Johnson v. Mammoth Defendants 1 because she had from March to October to seek the depositions and 2 information she now seeks and did not do so, despite having raised 3 the possibility of deposing at least two of the witnesses in 4 question. 5 (Opp’n § III.C.1.) But “diligence” presumes that things are functioning normally. 6 “Good cause” may be satisfied where there are “extraordinary” or 7 “extenuating circumstances.” 8 Court finds such an extraordinary circumstance in the total 9 breakdown in communication between lawyer and client following Johnson, 975 F.2d at 610. Here the 10 mediation on August 18, 2014. 11 also Opp’n at 8:16.) 12 for discovery to continue, because attorney and client could not 13 coordinate efforts and play their respective roles. 14 (See generally Dkt. No. 12. See That breakdown made it essentially impossible Defendants argue that Plaintiff and her counsel should have 15 pursued this discovery “in the many months prior to the mediation.” 16 (Opp’n at 8:18.) 17 breakdown in the attorney-client relationship, it is easy to say 18 that pursuing the discovery earlier would have been prudent. 19 from Plaintiff’s counsel’s representations at oral arguments on the 20 motion to withdraw, it appears that all sides initially believed 21 the mediation was likely to lead to a successful settlement. 22 if it did not, there were still nearly two months remaining on the 23 clock for fact discover afterward. 24 2014.) 25 neglecting their duty of diligence in not pursuing this discovery 26 prior to the mediation. 27 28 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 2 1 been reasonable of him to expect that the Court would grant new 2 counsel an extension of time to repair any deficiencies in 3 discovery that would have resulted from the failure of the 4 relationship with prior counsel. 5 ruled that counsel could not withdraw, the same need to repair the 6 damage done in the period when the relationship was non-functional 7 nonetheless exists. Although the Court ultimately 8 Defendants also argue that Plaintiff’s ex parte application is 9 barred by Rule 6(b)(1)(B), which states that the court may extend a 10 deadline “with or without motion” before the deadline has passed or 11 “on motion” if it has already passed. 12 motion” means a noticed motion, and therefore the ex parte 13 application is untimely because the fact discovery cut-off from 14 which Plaintiff seeks relief has already passed. 15 10.) 16 their merits, even after the deadline has passed. 17 United Student Aid Funds, Inc., No. 13CV1845-L BLM, 2014 WL 18 4658744, at *3 (S.D. Cal. Sept. 17, 2014); Baker v. Ensign, No. 19 11-CV-2060-BAS WVG, 2014 WL 4352167, at *4-5 (S.D. Cal. Aug. 29, 20 2014). 21 noticed motion is required nonetheless addresses the merits of the 22 ex parte motion. 23 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 24 1 25 26 27 28 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). 3 1 itself contemplates that “motions,” under the rule, may be ex parte 2 where appropriate. 3 find the ex parte motion to be untimely. 4 Fed. R. Civ. P. 6(c)(1)(A). The Court does not Finally, the Court finds good cause to grant ex parte relief, 5 because denying the application and requiring a noticed motion in 6 this case would only further delay the required discovery and the 7 trial date, because both sides would be prejudiced by such 8 additional delay, and because Defendants have adequately and 9 eloquently stated their objections to an extension of the 10 11 12 scheduling order. The scheduling order is hereby modified with the dates continued as follows: 13 FACT DISCOVERY CUT-OFF: 3-13-15 14 EXPERT DISCOVERY CUT-OFF: 1-26-15 15 LAST DAY TO FILE MOTIONS: 3-9-15 16 FINAL PRE TRIAL CONFERENCE: 6-1-15, at 11:00 a.m. 17 6 DAY JURY TRIAL: 6-9-15, at 9:00 a.m. 18 19 IT IS SO ORDERED. 20 21 22 Dated: November 24, 2014 DEAN D. PREGERSON United States District Judge 23 24 25 26 27 28 4

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