Feezor v. Golden Bear Restaurant Group, Inc. et al

Filing 61

ORDER denying 54 Motion to Amend the Scheduling Order signed by Judge Garland E. Burrell, Jr on 3/14/12. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Lary Feezor,
Plaintiff,

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v.

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GOLDEN BEAR RESTAURANT GROUP,
INC., dba ARBY’S; A&R INVESTMENT
COMPANY; CARISCH, INC. dba
ARBY’S; CARISCH BROTHERS, L.P.
dba ARBY’S,

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Defendants.
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2:09-cv-03324-GEB-CMK
ORDER

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On

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February

16,

2012,

Defendant

A&R

Investment

Company

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(“Defendant”) filed a motion for relief from the scheduling order under

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Federal

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Specifically, Defendant requests that the Court amend the February 6,

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2012 law and motion hearing deadline so that Defendant could file a

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motion in which it seeks to have co-Defendants Golden Bear and Carisch

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Brothers defend and indemnify it in this action. No party has opposed

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Defendant’s motion.

Rule

of

Civil

Procedure

(“Rule”)

16(b)(4).

(ECF

No.

54.)

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Rule 16(b)(4) prescribes: “A schedule may be modified only for

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good cause and with the judge’s consent.” “The schedule may be modified

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if it cannot reasonably be met despite the diligence of the party

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seeking the extension.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080,

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1087 (9th Cir. 2002) (internal quotation marks omitted). “[T]he focus of

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the inquiry is upon the moving party’s reasons for seeking modification.

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If that party was not diligent, the inquiry should end.” Johnson v.

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

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Defendant argues it “had only 31 ‘work’ days to prepare this

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motion, obtain declarations, review the case files, correspondence,

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pleadings, documents dating back to November 30, 2009[,] and research

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the law before the hearing cut off [sic] date of February 6, 2012.

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Moreover it was over the holidays, and during an incredibly busy time at

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[Defendant’s] law firm.” (Def.’s Mot. 5:55-6:1.) However, Defendant also

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states that in April 2010, Defendant’s former attorney “inquired as to

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the status of [Defendants Golden Bear and Carisch Brothers’] willingness

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to defend and indemnify [Defendant].” Id. 3:5-7. Further, Defendant

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asserts that on November 17, 2011, it “sent a detailed letter to

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[Defendants Golden Bear and Carisch Brothers], where [it] . . . cited

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seminal case law establishing that [Defendant] was being generous with

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its offer because as a matter of law [D]efendant Carisch Brothers [was]

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required to defend and indemnify it.” Id. 4:24-5:2.

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Since it is evident that Defendant’s counsel has know about

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the duty to defend and indemnify issue since at least April 2010,

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Defendant has not demonstrated that it acted with diligence in complying

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with the deadline in the scheduling order it seeks to amend. Further,

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Defendant has now shown that it sought to litigate the matter in a

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timely manner after Defendant was apprised of the facts it contends

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justify the amendment it seeks. The motion record is silent concerning

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when Defendant first became aware of the defend and indemnify issue.

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Since Defendant has not shown that good cause justifies amending the

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scheduling order, Defendant’s motion is DENIED.

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Dated:

March 14, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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