Lambey v. California Department of Insurance, et. al.

Filing 45

ORDER signed by Judge Kimberly J. Mueller on 8/28/13 SETTING Hearing date on 26 Motion for Summary Judgment for 9/27/2013 at 10:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. The Court AMENDS the 18 Scheduling Order to hear defendant's motion. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT COURT OF CALIFORNIA

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PATRICK LAMBEY,

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Plaintiff,

No. 2:11-CV-02392-KJM-KJN

vs.

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CALIFORNIA DEPT. INS., et al.,

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Defendants.

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ORDER

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Defendant California Department of Insurance filed this ex-parte motion to

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amend the court’s pretrial scheduling order on August 22, 2013. (ECF 43.) The scheduling

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order, issued on February 7, 2012, set September 20, 2013 as the deadline for hearing

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dispositive motions. (ECF 18.) Defendant seeks to extend this deadline by one week, to

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September 27, 2013, so that the court can consider its motion for summary judgment.

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Defendant seeks this ex-parte relief because, on August 21, 2013 it improperly noticed its

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motion for summary judgment to be heard on September 13, 2013, a date that did not comply

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with Local Rule 230(b)’s requirement that motions be heard “not less than twenty-eight (28)

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days after service and filing of the motion.” September 13 is fewer than twenty-eight days after

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August 21. The court informed defendant of its error on September 22, 2013. (ECF 42.)

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Because no other available hearing dates exist before this case’s deadline for dispositive

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motions, defendant seeks the instant relief.

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Defendant’s counsel argues good cause exists to grant the motion. Counsel

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explains he originally intended to notice the motion to be heard on September 20, 2013;

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through a phone call to chambers on August 19, 2013 counsel learned that September 20 was

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not an available date for this court to hear civil motions. (ECF 43 at 2.) That same day, August

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19, 2013, after counsel learned September 20 was not an available date, he miscounted the days

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available to notice the hearing for the only available calendar day before the pretrial scheduling

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order deadline: September 13, 2013. (Id. at 3.) Counsel further asserts that plaintiff will suffer

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no prejudice because a September 27, 2013 hearing date will provide plaintiff more time to

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respond to the motion. (Id.) Furthermore, defendant argues plaintiff was on notice as of July

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29, 2013 that defendant would file a motion for summary judgment: the parties signed a

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stipulation on that day agreeing that each side could file longer briefs in support of and in

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opposition to defendant’s anticipated motion for summary judgment. (Id.)

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Plaintiff opposes the instant motion, arguing no good cause exists to modify the

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scheduling order because defendant knew September 20 was the deadline for dispositive

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motions. (ECF 44 at 3.) Plaintiff asserts defendant knew of this deadline because it was set in

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the scheduling order and because the parties explicitly referenced it in their July 29, 2013

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stipulation agreeing to file longer briefs. (Id.) Defendant should be held to its mistake,

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plaintiff argues.

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The court finds good cause exists to grant defendant’s motion. FED. R. CIV. P.

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16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”).

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This is a complex case, as the parties recognized in seeking a stipulation to extend allowable

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page limits in anticipation of defendant’s motion for summary judgment. (ECF 22 at 2.)

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Defendant’s motion may help sharpen the issues for trial, serving the overarching purposes of

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the Federal Rules of Civil Procedure. FED. R. CIV. P. 1 (the Rules “should be construed and

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administered to secure the just, speedy, and inexpensive determination of every action and

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proceeding”). Furthermore, plaintiff will suffer little prejudice: the parties’ page-limit
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stipulation demonstrates plaintiff knew defendant would shortly file a motion for summary

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judgment. (ECF 22.) Plaintiff has now been served with the motion for summary judgment. A

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September 27 hearing date, one week after the scheduling order deadline, will provide plaintiff

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more than the twenty-eight days of notice required by the Local Rules.

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Accordingly, the court amends the scheduling order to hear defendant’s motion
for summary judgment on September 27, 2013 at 10:00 a.m.
IT IS SO ORDERED.
DATED: August 28, 2013.

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UNITED STATES DISTRICT JUDGE
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