Haley v. Clark Construction Group-California, Inc.

Filing 58

ORDER by Judge Haywood S. Gilliam, Jr. DENYING PLAINTIFFS EX PARTE 46 APPLICATION TO MODIFY SCHEDULING ORDER. (ndrS, COURT STAFF) (Filed on 10/9/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LAWRENCE HALEY,

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Plaintiff,
v.

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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.
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Plaintiff Lawrence Haley moved ex parte to modify the scheduling order to extend the fact

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discovery deadline from August 19, 2019 to October 2, 2019. Dkt. No. 46 (“Mot.”). The Court

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held a hearing on the ex parte application on August 22, 2019. Having carefully considered the

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parties’ arguments, the Court DENIES Plaintiff’s ex parte application, and explains its reasoning

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briefly for the record.

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I.

LEGAL STANDARD
Federal Rule of Civil Procedure 16 provides that “[a] schedule may be modified only for

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good cause and with the judge’s consent.” Fed. R. Civ. P. 16. “Rule 16(b)’s ‘good cause’

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standard primarily considers the diligence of the party seeking the amendment.” Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992); see also Fed. R. Civ. P. 16

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Advisory Committee’s Notes (1983 amendment) (noting court may modify schedule “if it cannot

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reasonably be met despite the diligence of the party seeking the extension”). Thus, “Rule 16(b)’s

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‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Id.;

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see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). Where the moving

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party has not been diligent, the inquiry ends, and the motion should be denied. Zivkovic v. S. Cal.

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Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975 F.2d at 609. Whether or not to

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reopen discovery is in the discretion of the district court: the district court has “wide latitude in

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controlling discovery.” United States v. Reliance Ins. Co., 799 F.2d 1382, 1387 (9th Cir. 1986).

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II.

DISCUSSION
Plaintiff filed his ex parte application the day discovery closed, seeking to extend the

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discovery deadline because of Defendant’s purportedly belated production of documents. Mot. at

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3–4. According to Plaintiff, those produced documents “revealed more than six (6) additional

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witnesses.” Mot. at 4. However, Plaintiff’s motion fails to specifically identify what additional

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discovery Plaintiff requests. At the hearing, Plaintiff’s counsel clarified that she was seeking to

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depose Bashir Zayid and Steve Highland, individuals whose email addresses were included in

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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

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discovery. The alleged “belatedly produced documents” were just five additional emails, totaling

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nineteen pages, which Defendant produced to Plaintiff on August 6, 2019, weeks before the

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discovery cut-off. See id. Plaintiff accuses Defendant of “trial by ambush and document

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dumping,” but Defendant’s conduct hardly qualifies for such labels. See Mot. at 4. Given the

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minimal number of documents, Plaintiff could have sought to depose Mr. Zayid and Mr. Highland

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well before the August 19, 2019 discovery cut-off. Further, some of these documents were

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already produced to Plaintiff, and Defendant identified Mr. Zayid in a discovery response in July

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2019. See Dkt. No. 49-1 ¶¶ 12, 20. Plaintiff clearly was not diligent in seeking to extend

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discovery.

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III.

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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

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