Ortiz v. Enhanced Recovery Company

Filing 53

ORDER signed by Magistrate Judge Deborah Barnes on 1/9/19 DENYING 47 Motion and DENYING 52 Ex Parte Application. (Coll, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENE ORTIZ, 12 13 14 15 No. 2:17-cv-0607 KJM DB PS Plaintiff, v. ORDER ENHANCED RECOVERY COMPANY, Defendant. 16 17 Plaintiff is proceeding in this action pro se. This matter was, therefore, referred to the 18 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the undersigned are a motion by plaintiff and an ex parte application by defendant. 20 In this regard, on July 26, 2018, plaintiff filed a “MOTION FOR A HEARING.” (ECF 21 No. 47.) Therein, plaintiff alleged that defendant informed plaintiff that defendant “will be filing 22 a motion” to compel discovery from plaintiff. (Id. at 1.) Plaintiff sought a hearing on the matter 23 before granting defendant’s motion to compel. (Id. at 1-2.) However, defendant never filed a 24 motion to compel and plaintiff’s motion was not noticed for hearing before the undersigned. 25 Accordingly, plaintiff’s July 26, 2018 motion for a hearing will be denied. 26 Moreover, on March 30, 2018, the undersigned issued a pretrial scheduling order in this 27 action. (ECF No. 41.) On December 28, 2018, defendants filed an “EX PARTE APPLICATION 28 TO EXTEND CERTAIN DATES IN THE PRETRIAL SCHEDULING ORDER.” (ECF No. 1 1 52.) Therein, defendant seeks to extend the deadlines for the completion of discovery, law and 2 motion, the date of the final pretrial conference, and the date of the jury trial. (Id. at 2) (emphasis 3 in original). Defendant asserts that Rule 16(b)(4) of the Federal Rules of Civil Procedure requires 4 good cause to modify a scheduling order and that “Local Rule 144(c) provides” that the court 5 may “grant an initial extension ex parte upon the affidavit of counsel[.]” (Id.) 6 Defendant is correct that Rule 16 applies to motions to amend the scheduling order. In 7 this regard, “[o]nce the district court ha[s] filed a pretrial scheduling order pursuant to Federal 8 Rule of Civil Procedure 16 . . . that rule’s standards control[].” Johnson v. Mammoth 9 Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). “‘Unlike Rule 15(a)’s liberal amendment 10 policy which focuses on the bad faith of the party seeking to interpose an amendment and the 11 prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the 12 diligence of the party seeking the amendment.’” Manriquez v. City of Phoenix, 654 Fed. Appx. 13 350, 351 (9th Cir. 2016) (quoting Johnson, 975 F.2d at 609). Pursuant to Rule 16(b) the schedule in this action “shall not be modified except upon a 14 15 showing of good cause.” Fed. R. Civ. P. 16(b). “The district court may modify the pretrial 16 schedule ‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’” 17 Johnson, 975 F.2d at 609 (quoting Fed. R. Civ. P. 16 advisory committee’s notes (1983 18 amendment)). 19 However, the discussion of good cause and diligence found in defendant’s application is 20 somewhat cursory. Moreover, defendant misunderstands Local Rule 144. In this regard, Local 21 Rule 144 concerns extending or shortening the time for filings such as “to respond to a complaint, 22 cross-claim or counterclaim, or to respond to interrogatories, requests for admissions, or request 23 for production of documents[.]” Local Rule 144(a). Here, defendant is seeking more than simply 24 an extension of a filing deadline. Defendant’s application, therefore, will be denied. 25 //// 26 //// 27 //// 28 //// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s July 26, 2018 motion (ECF No. 47) is denied; and 3 2. Defendant’s December 28, 2018 ex parte application (ECF No. 52) is denied.1 4 Dated: January 9, 2019 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DLB:6 DB/orders/orders.pro se/ortiz0607.ex.parte.den.ord 23 24 25 26 27 28 1 If defendant wishes to amend the scheduling order in this action, defendant should first seek a stipulation from plaintiff. Absent a stipulation, any motion to amend the schedule in this action shall be filed in compliance with Local Rule 230. 3

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