Cioban-Leontiy v. Silverthorn Resort Associates, LP et al

Filing 87

ORDER signed by District Judge Morrison C. England, Jr. on 11/6/2018 GRANTING 63 Motion to Modify Initial Pretrial Scheduling Order. The deadline for completing discovery, with the exception of expert discovery, will therefore be continued to 2/1/2019, with additional deadlines to be calculated accordingly. (Huang, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OLGA CIOBAN-LEONTIY,

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No. 2:17-cv-01626-MCE-DMC

Plaintiff,
v.

ORDER

SILVERTHORN RESORT
ASSOCIATES, LP, a California Limited
Partnership, WATERWAY
HOUSEBOAT BUILDERS, a foreign
corporation, VOLVO PENTA OF THE
AMERICAS, LLC, a Delaware Limited
Liability Company, and DOES 1-50,
inclusive,
Defendants.

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Through the present action, Plaintiff Olga Cioban-Leontiy (“Plaintiff”) seeks

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damages for personal injuries she sustained after jumping from a houseboat in Lake

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Shasta, California. Plaintiff’s Complaint was originally filed in Shasta County Superior

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Court on May 10, 2017, and included causes of action for products liability and

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negligence. In addition to suing Defendant Silverthorn Resort Associates, LP

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(“Silverthorn”), the marina where the houseboat had been rented, Plaintiff’s Complaint

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also named Twin Anchors Marine, Ltd. and Volvo Penta of the Americas, LLC (“Volvo

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Penta”) as additional Defendants.
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On August 3, 2017, after filing its answer to Plaintiff’s Complaint the previous day,

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Volvo Penta filed a Notice of Removal to this Court on the basis of federal question

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jurisdiction pursuant to 28 U.S.C. § 1331, the Federal Boat Safety Act of 1971, the

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Inland Navigation Rules, and maritime jurisdiction in accordance with 28 U.S.C. § 1333.

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ECF No. 1. Then, on August 4, 2017, the Court issued its initial Pretrial Scheduling

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Order (“PTSO”), which set various deadlines, including a deadline that fact discovery be

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completed within 365 days after the federal case was opened.

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Silverthorn now moves to extend the deadlines contained in the Scheduling Order
on grounds that the issues and parties in this case have been in such flux that

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commencing full blown discovery until very recently was impracticable. Although as

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indicated above Plaintiff’s Complaint was filed on May 10, 2017, Plaintiff thereafter

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added Waterway Houseboat Builders, the entity that allegedly constructed the

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houseboat, and then dismissed Waterway in May of 2018. In addition, as recently as

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August 8, 2018, Plaintiff sought to file an amended Complaint to add the owner of the

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houseboat as a defendant before ultimately withdrawing that motion. In addition, the

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issue of whether Volvo Penta’s cost waiver settlement was made in good faith (so as to

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preclude counterclaims from, among others, Silverthorn) remains unresolved at the

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present time.

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Once a district court has issued a PTSO pursuant to Federal Rule of Civil

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Procedure 16, that Rule’s standards control. Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 607-08 (9th Cir. 1992). Prior to the final pretrial conference in this matter,

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which is presently set for June 22, 2017, the Court can modify its PTSO upon a showing

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of “good cause.” See Fed. R. Civ. P. 16(b).

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“Unlike Rule 15(a)’s liberal amendment policy, which focuses on the bad faith of

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the party seeking to interpose an amendment and the prejudice to the opposing party,

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Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking

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the amendment.” Johnson, 975 F.2d at 609. In explaining this standard, the Ninth

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Circuit has stated that:
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[a] district court may modify the pretrial schedule “if it cannot
reasonably be met despite the diligence of the party seeking
the extension.” Moreover, carelessness is not compatible with
a finding of diligence and offers no reason for granting of relief.
Although the existence or degree of prejudice to the party
opposing the modification might supply additional reasons to
deny a motion, the focus of the inquiry is upon the moving
party’s reasons for seeking modifications. If that party was not
diligent, the inquiry should end.

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Id. (citations omitted).
In opposing the Motion, Plaintiff does not appear to controvert the fact that the

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parties and issues implicated by this case have remained a moving target, virtually up to

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and including the present. Instead, Plaintiff’s primary argument appears to be that fact

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discovery technically closed, pursuant to the Court’s initial Scheduling Order, on

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August 3, 2018, with Silverthorn not moving to extend that discovery deadline through

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the present Motion until August 23, 2018, nearly three weeks later. According to

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Plaintiff, that delay militates against any finding of due diligence on Silverthorn’s part that

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would support the granting of an extension.
Silverthorn, in response, not only points out that it has neither sought nor obtained

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any previous extensions in this matter, but also argues that Plaintiff herself should be

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estopped from enforcing the existing discovery cutoff given her own shifting approach

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towards litigating the lawsuit. Significantly, too, the Court notes that Plaintiff participated

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in scheduling various depositions in this case in August and September, only to

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subsequently invoke the discovery deadline after August 3, 2018 had passed.

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After reviewing the circumstances of this matter in its entirety the Court concludes

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that Silverthorn has demonstrated diligence sufficient to justify an extension.

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Silverthorn’s Motion to Modify Initial Pretrial Scheduling Order (ECF No. 63) is

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accordingly GRANTED.1 The deadline for completing discovery, with the exception of

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expert discovery, will therefore be continued for six months, to February 1, 2019, with

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additional deadlines to be calculated accordingly.

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IT IS SO ORDERED.
Dated: November 6, 2018
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Because the Court determined that oral argument would not be of material assistance, this
Motion was submitted on the briefs in accordance with E.D. Local Rule 230(g).

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