Operating Engineers Pension Trust Fund et al v. Terrasearch et al

Filing 97

ORDER by Judge ARMSTRONG denying 96 Stipulation (lrc, COURT STAFF) (Filed on 2/8/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 OPERATING ENGINEERING’ PENSION

TRUST FUND; F.G. CROSTHWAITE and
7 RUSSELL E. BURNS, as Trustees,

Case No: C 10-04964 SBA
ORDER DENYING REQUEST TO
MODIFY TRIAL DATE

Plaintiffs,

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Docket 96
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vs.

10 TERRASEARCH, a California Corporation,

3 MAK, LLC, a California Limited Liability
11 Company, TERRASEARCH GULF, a

California partnership, SIMON MAKDESSI,
12 as an individual, and ISSAM MAKDISSY, as

an individual, and DOES 1-20,
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Defendants.
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On November 10, 2010, Plaintiffs Operating Engineers’ Pension Trust Fund and its

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trustees, F.G. Crosthwaite and Russell E. Burns, commenced the instant action under the

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Employee Retirement Income Security Act, 29 U.S.C. § 1001-1461, against Defendants

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Terrasearch and 3 Mak LLC. On May 31, 2012, Plaintiffs, upon stipulation of the parties,

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filed an Amended Complaint joining Simon Makdessi and Issam Makdissy as Defendants.

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Pursuant to the Court’s scheduling order entered on February 22, 2012, fact discovery is

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scheduled to close on January 29, 2013. Dkt. 73, 74. A two-day bench trial is set for May

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20, 2013. Id.

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On February 6, 2013, the parties submitted a stipulated request to modify the Court’s

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pretrial schedule. Dkt. 96. Among other things, the parties seek to enlarge the fact

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discovery cut off by approximately seven months, from January 29, 2013, to August 20,

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2013, and to continue the trial date from May 20, 2013, to November 18, 2013. The parties

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contend that they require additional time to prepare their respective cases due to discovery-

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related issues that have recently arisen as to Defendants Makdessi and Makdissy.

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Federal Rule of Civil Procedure 16 provides that deadlines established in a case

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management order may “be modified only for good cause[.]” Fed. R. Civ. P. 16(b)(4).

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“Good cause” exists when a deadline “cannot reasonably be met despite the diligence of the

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party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609

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(9th Cir. 1992) (citation omitted). Thus, “Rule 16(b)’s ‘good cause’ standard primarily

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considers the diligence of the party seeking the amendment.” Id.; see also Coleman v.

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Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). “If the party seeking the

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modification ‘was not diligent, the inquiry should end’ and the motion to modify should not

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be granted.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting

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Johnson, 975 F.2d at 609).

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The record demonstrates that the parties have had ample opportunity to conduct

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discovery and prepare their respective cases for trial, and that their purported need for

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additional time is attributable to their own lack of diligence. This action has been pending

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for over two years since its filing on November 10, 2010. At the time Defendants Makdessi

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and Makdissy were joined in this action (by stipulation) on May 31, 2012, Dkt. 79, the

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parties were well aware of the pretrial schedule entered by the Court on February 22, 2012.

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Dkt. 73, 74. As such, it was incumbent upon the parties to commence discovery as

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expeditiously as possible. Yet, Plaintiffs waited until August and September 2012 before

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serving Makdessi and Makdissy with any discovery requests. Worse yet, these Defendants

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waited until December 2012 and January 2013 before serving any discovery requests on

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Plaintiffs. Thus, based on the record presented, the Court is persuaded that the basis for the

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instant request to continue the pretrial schedule and trial date in this action is due to the

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parties’ lack of diligence.1 Accordingly,

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The parties, of course, remain free to stipulate to the jurisdiction of a Magistrate
Judge of this Court, in which case the matter would be reassigned and scheduled in
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IT IS HEREBY ORDERED THAT the parties’ stipulated request to modify the trial
date is DENIED. This Order terminates Docket 96.
IT IS SO ORDERED.
Dated: 2/8/13

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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