Frazier v. Ulta Beauty Inc.

Filing 24

STIPULATION and ORDER signed by District Judge Troy L. Nunley on 5/10/2022 CONTINUING the discovery cut off, and related deadlines, out by a minimum of 45 days, which would be 6/30/2022 for the discovery cutoff. (Huang, H)

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KING & SIEGEL LLP
JULIAN BURNS KING, Bar No. 298617
[e-mail]
ELLIOTT J. SIEGEL, Bar No.286798
[e-mail]
ROBERT J. KING, Bar No. 302545
[e-mail]
724 S. Spring Street, Suite 201
Los Angeles, CA 90014
Telephone:
213.465.4802
Facsimile:
213.465.4803
Attorneys for Plaintiff
SARAH FRAZIER
Barbara A. Blackburn, Bar No. 253731
[e-mail]
Nathaniel H. Jenkins, Bar No. 312067
[e-mail]
LITTLER MENDELSON P.C.
500 Capitol Mall
Suite 2000
Sacramento, California 95814
Telephone:
916.830.7200
Fax No.:
916.561.0828
Attorneys for Defendant
ULTA SALON, COSMETICS & FRAGRANCE, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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SARAH FRAZIER, an individual,

Case No. 2:20-cv-01608-TLM-DB
Stipulation and Order to Further
Modify the Scheduling Order

Plaintiff,
v.

Complaint filed:

ULTA SALON, COSMETICS, &
FRAGRANCE, INC., a Delaware corporation
and DOES 1-10, inclusive,,

08/11/2020

Amended Complaint filed: 09/10/2020

Defendant.

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LITTLER MENDELSON P.C.
500 Capitol Mall
Suite 2000
Sacramento, CA 95814
916.830.7200

Stipulation and Order to Further
Modify the Scheduling Order

1

2:20-CV-01608-TLN-DB

Plaintiff Sarah Frazier (“Plaintiff”) and Defendant Ulta Salon, Cosmetics &

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Fragrance, Inc. (“Defendant”) (collectively, the “Parties”), by and through their respective counsel of

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record, hereby agree and respectfully stipulate as follows:

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WHEREAS, Plaintiff filed her Complaint on August 11, 2020, but did not serve

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Defendant with this Complaint. Instead, Plaintiff filed a First Amended Complaint on September 10,

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2020 (ECF No. 5), and served Defendant with the First Amended Complaint on September 15, 2020,

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and Defendant answered on October 20, 2020;

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WHEREAS, on October 29, 2020, the Parties met and conferred regarding Plaintiff’s

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contention that Defendant’s Answer was deficient, and in turn, Defendant agreed to file an Amended

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Answer, and did so on November 20, 2020;

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WHEREAS, on August 12, 2020, this Court issued its Initial Scheduling Order, which

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requires the Parties to complete discovery no later than 240 days after the last day that a defendant

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may answer the complaint (which here was October 20, 2020). Accordingly, the current discovery cut

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off is June 17, 2021 (making the deadline for either party to serve any further discovery requests May

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18, 2021).

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WHEREAS, pursuant to Federal Rule of Civil Procedure (“FRCP”) 26(f), the Parties

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exchanged initial disclosure statements and documents on December 14, 2020. Thereafter, over the

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next five months, the Parties propounded and responded to written discovery requests, and met and

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conferred to resolve alleged deficiencies in the discovery responses, including serving amended

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discovery responses, as well as engaging in efforts to streamline Defendant’s search for Electronically

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Stored Information (“ESI”) pursuant to Plaintiff’s discovery request.

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WHEREAS, on May 21, 2021, this Court issued its signed Order accepting Plaintiff’s

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and Defendant’s Joint Stipulation to Modify the Initial Scheduling Order (the “First Joint

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Stipulation”). Pursuant to the First Joint Stipulation, the discovery cut off was extended to December

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14, 2021.

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WHEREAS, after obtaining the initial discovery extension, the Parties engaged in

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written discovery efforts and took depositions of available witnesses, but have yet to complete

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LITTLER MENDELSON P.C.
500 Capitol Mall
Suite 2000
Sacramento, CA 95814
916.830.7200

Stipulation and Order to Further
Modify the Scheduling Order

2

2:20-CV-01608-TLN-DB

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depositions. The Parties have attempted to set depositions, but have encountered issues locating

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pertinent witnesses (namely, former employees of Defendant, including two of Plaintiff’s former

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managers) and have had issues with witness availability. Specifically, both Parties wish to take the

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deposition of Tonja Springer, Plaintiff’s former direct manager, and have diligently attempted to serve

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Ms. Springer with a deposition subpoena, to which Ms. Springer appears to be actively avoiding

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service of same. Additionally, Defendant took the first part of Plaintiff’s deposition in July 2021, but

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due to scheduling conflicts, have not been able to complete Plaintiff’s deposition. Accordingly, the

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Parties will not be able to complete these depositions and/or enforce the deposition subpoena for Ms.

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Springer prior to the previous discovery cut off on December 14, 2021, due to witness unavailability.

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Accordingly, on December 15, 2021, this Court issued its signed Order accepting Plaintiff’s and

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Defendant’s Second Joint Stipulation to Modify the Initial Scheduling Order.

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WHEREAS, Defendant attempted to serve four pertinent witnesses with deposition

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subpoenas, all former employees of Defendant, including Plaintiff’s former manager, Tonja Springer,

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and other relevant managers, Chris Galway-Howard and Carolyn Manick, along with Plaintiff’s

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alleged harasser, Shalyce Beck, all of whom are pertinent and critical witnesses to Plaintiff’s

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allegations. Despite diligent efforts, Defendant was not able to effectuate service on any of these

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individuals.

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WHEREAS, on February 2, 2022, this Court issued its signed Order accepting

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Plaintiff’s and Defendant’s Joint Stipulation to Modify the Initial Scheduling Order (the “Third Joint

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Stipulation”). Pursuant to the Third Joint Stipulation, the discovery cut off was extended to May 16,

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2021.

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WHEREAS, several key deposition remain unscheduled due to service difficulties and

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the parties agree to a brief thirty (30) day extension of the discovery cut-off in order to complete

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discovery.

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WHEREAS, the Parties still intend to pursue early mediation of this matter in hopes

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to reach a reasonable, global resolution of the lawsuit and to prevent any further need for further

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written discovery, and trial preparation. However, the Parties have further agreed that in order to have

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LITTLER MENDELSON P.C.
500 Capitol Mall
Suite 2000
Sacramento, CA 95814
916.830.7200

Stipulation and Order to Further
Modify the Scheduling Order

3

2:20-CV-01608-TLN-DB

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a productive mediation, the depositions of the individuals listed above need to be taken. As described

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above, due to witness unavailability and/or inability to effectuate service of deposition subpoenas

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pursuant to FRCP Rule 45, the Parties have not completed these depositions.

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WHEREAS, good cause exists to modify the Court’s scheduling Order as follows:

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The district court is given broad discretion in supervising the pretrial phase of

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litigation…” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and

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internal quotation marks omitted). “A schedule may be modified only for good cause and with the

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judge’s consent.” Fed. R. Civ. P. 16(b)(4); see e.g. Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d

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339, 343 (5th Cir. 1990) (court impliedly granted motion to modify scheduling order by allowing

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summary judgment motion after pretrial motion cut-off date).

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To establish “good cause,” parties seeking modification of a scheduling order must

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generally show that, even with the exercise of due diligence, they cannot meet the order’s timetable.

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Johnson, supra, 975 F.2d at 609; see e.g., Hood v. Hartford Life & Acc. Ins. Co., 567 F.Supp.2d 1221,

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1224 (E.D. Cal. 2008) (granting request for modification that was promptly made when it became

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apparent that compliance with the scheduling order was not possible). In determining “good cause,”

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courts also consider the importance of the requested modification, the potential prejudice in allowing

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the modification, and, conversely, whether denial of the requested modification would result in

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prejudice. Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (involving

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amendment of pleadings).

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Here, good cause exists for an extension of the discovery cut off given the Parties’

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inability to complete necessary discovery. This matter was initially filed on August 11, 2020; however

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Plaintiff did not immediately serve Defendant. By the time Plaintiff served Defendant with her First

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Amended Complaint, and Defendant filed an Amended Answer and the Parties exchanged their Rule

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26(f) disclosures, less than six months remained within the then-existing Scheduling Order’s timetable

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to complete all necessary discovery. Even then, the Parties diligently engaged in written discovery

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efforts, including a request that Defendant conduct a search of voluminous ESI, which took several

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months to complete. Once the Parties obtained an extension of the initial discovery deadline, they

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LITTLER MENDELSON P.C.
500 Capitol Mall
Suite 2000
Sacramento, CA 95814
916.830.7200

Stipulation and Order to Further
Modify the Scheduling Order

4

2:20-CV-01608-TLN-DB

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continued to engage in written discovery efforts and they took depositions of available witnesses.

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However, the unavailability of pertinent witnesses (including Plaintiff’s former manager and alleged

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harasser) has prevented the parties from completing discovery. In addition, the Parties have agreed to

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submit to early mediation and hope to reach a global resolution of this matter, but will need additional

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time in order to complete limited depositions prior to a mediation. If mediation is unsuccessful, the

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Parties will need additional time to conduct further discovery and prepare for trial.

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THEREFORE, upon good cause shown, the Parties stipulate to continue the

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discovery cut off (and related deadlines) out by a minimum of 45 days (which would be June 30, 2022

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for the discovery cutoff).

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KING & SIEGEL, LLP

Dated: May 9, 2022

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_/s/Robert J. King_____
JULIAN BURNS KING
ELLIOT J. SIEGEL
ROBERT J. KING
Attorney for Plaintiff
SARAH FRAZIER

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Dated: May 9, 2022

LITTLER MENDELSON P.C.

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/s/Nathaniel H. Jenkins
BARBARA A. BLACKBURN
NATHANIEL H. JENKINS
Attorneys for Defendant
ULTA SALON, COSMETICS & FRAGRANCE,
INC.

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ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated: May 10, 2022
Troy L. Nunley
United States District Judge

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LITTLER MENDELSON P.C.
500 Capitol Mall
Suite 2000
Sacramento, CA 95814
916.830.7200

Stipulation and Order to Further
Modify the Scheduling Order

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2:20-CV-01608-TLN-DB