Haley v. Clark Construction Group-California, Inc.

Filing 58


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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LAWRENCE HALEY, 8 Plaintiff, v. 9 10 11 CLARK CONSTRUCTION GROUPCALIFORNIA, INC., Case No. 18-cv-07542-HSG ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION TO MODIFY SCHEDULING ORDER Re: Dkt. No. 46 United States District Court Northern District of California Defendant. 12 Plaintiff Lawrence Haley moved ex parte to modify the scheduling order to extend the fact 13 14 discovery deadline from August 19, 2019 to October 2, 2019. Dkt. No. 46 (“Mot.”). The Court 15 held a hearing on the ex parte application on August 22, 2019. Having carefully considered the 16 parties’ arguments, the Court DENIES Plaintiff’s ex parte application, and explains its reasoning 17 briefly for the record. 18 19 I. LEGAL STANDARD Federal Rule of Civil Procedure 16 provides that “[a] schedule may be modified only for 20 good cause and with the judge’s consent.” Fed. R. Civ. P. 16. “Rule 16(b)’s ‘good cause’ 21 standard primarily considers the diligence of the party seeking the amendment.” Johnson v. 22 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992); see also Fed. R. Civ. P. 16 23 Advisory Committee’s Notes (1983 amendment) (noting court may modify schedule “if it cannot 24 reasonably be met despite the diligence of the party seeking the extension”). Thus, “Rule 16(b)’s 25 ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Id.; 26 see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). Where the moving 27 party has not been diligent, the inquiry ends, and the motion should be denied. Zivkovic v. S. Cal. 28 Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975 F.2d at 609. Whether or not to 1 reopen discovery is in the discretion of the district court: the district court has “wide latitude in 2 controlling discovery.” United States v. Reliance Ins. Co., 799 F.2d 1382, 1387 (9th Cir. 1986). 3 II. DISCUSSION Plaintiff filed his ex parte application the day discovery closed, seeking to extend the 4 5 discovery deadline because of Defendant’s purportedly belated production of documents. Mot. at 6 3–4. According to Plaintiff, those produced documents “revealed more than six (6) additional 7 witnesses.” Mot. at 4. However, Plaintiff’s motion fails to specifically identify what additional 8 discovery Plaintiff requests. At the hearing, Plaintiff’s counsel clarified that she was seeking to 9 depose Bashir Zayid and Steve Highland, individuals whose email addresses were included in 10 Defendant’s “belatedly produced documents.” See Dkt. No. 46-3, Ex. 12. The Court finds Plaintiff failed to show good cause why he should be allowed to extend United States District Court Northern District of California 11 12 discovery. The alleged “belatedly produced documents” were just five additional emails, totaling 13 nineteen pages, which Defendant produced to Plaintiff on August 6, 2019, weeks before the 14 discovery cut-off. See id. Plaintiff accuses Defendant of “trial by ambush and document 15 dumping,” but Defendant’s conduct hardly qualifies for such labels. See Mot. at 4. Given the 16 minimal number of documents, Plaintiff could have sought to depose Mr. Zayid and Mr. Highland 17 well before the August 19, 2019 discovery cut-off. Further, some of these documents were 18 already produced to Plaintiff, and Defendant identified Mr. Zayid in a discovery response in July 19 2019. See Dkt. No. 49-1 ¶¶ 12, 20. Plaintiff clearly was not diligent in seeking to extend 20 discovery. 21 III. 22 23 24 25 26 27 CONCLUSION For the reasons set forth above, the Court DENIES Plaintiff’s ex parte application to modify the scheduling order. IT IS SO ORDERED. Dated: 10/9/2019 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 28 2

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