Cross v. Central Contra Costa Transit Authority
Filing
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ORDER DENYING MOTION TO MODIFY SCHEDULING ORDER AND CONTINUE HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by Judge Jon S. Tigar denying 63 Administrative Motion. (kc, COURT STAFF) (Filed on 6/5/2024)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SHANNON CROSS,
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Plaintiff,
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v.
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CENTRAL CONTRA COSTA TRANSIT
AUTHORITY,
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United States District Court
Northern District of California
Case No. 21-cv-01312-JST
Defendant.
DENYING MOTION TO MODIFY
SCHEDULING ORDER AND
CONTINUE HEARING ON
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Re: ECF No. 63
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Before the Court is Plaintiff’s motion for a modified scheduling order and continuance of
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hearing on Defendant’s motion for summary judgment. ECF No. 63. The Court will deny the
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motion.
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I.
BACKGROUND
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On February 24, 2021, Plaintiff Shannon Cross filed this action against her former
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employer Central Contra Costa Transit Authority (“CCCTA”) for discrimination, retaliation, and
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harassment in violation of California’s Fair Employment and Housing Act and Title VII of the
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Civil Rights act, after she was terminated from her job as a transit operator. ECF No. 1. Cross, a
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Black Muslim woman, alleges she was subject to harassment and discrimination for her religious
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practice of wearing a Hijab. Id. ¶ 1. Soon after she complained to Human Resources about the
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harassment and discrimination, she was terminated. Id. CCCTA denies these allegations of
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harassment and discrimination. Rather, CCCTA contends it terminated Cross for legitimate, non-
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discriminatory reasons—for sideswiping a bicyclist, running 30 stop signs and red lights over the
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course of two hours, failing to stop at BART crosswalks, and using her cellphone while in the
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operator’s seat of the bus. ECF No. 56 at 9.
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On June 14, 2021, the Court, in accordance with the parties’ proposed scheduled, issued its
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scheduling order setting the fact discovery cut off date as May 13, 2022; the expert discovery
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cutoff date as August 31, 2022; and the dispositive motion deadline as August 4, 2022. ECF No.
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18. That same day the Court referred the case to Magistrate Judge Westmore for settlement, after
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which the parties engaged in multiple settlement conferences. ECF Nos. 19, 24, 33, 55. Pursuant
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to the parties’ stipulations, the Court amended its scheduling order seven times. ECF Nos. 26, 28,
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31, 35, 38, 42, 50. The latest and operative scheduling order set the close of fact discovery as
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December 21, 2023; the close of expert discovery as April 4, 2024; and the dispositive motion
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deadline as May 16, 2024. ECF No. 50.
On April 11, 2024, CCCTA filed a motion for summary judgment, noticing it for May 16,
United States District Court
Northern District of California
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2024, in accordance with the scheduling order. ECF No. 56. On April 25, 2024, the day her
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response was due, Cross filed a motion for an extension of time, until May 17, 2024, to file a
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response to CCCTA’s motion, which the Court granted. ECF Nos. 58, 59. On May 17, 2024,
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Cross filed this motion for a modified scheduling order and continuance of the summary judgment
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hearing, requesting the Court: (1) allow the parties defer expert disclosure, discovery, and Daubert
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motions until after the hearing on CCCTA’s summary judgment motion; (2) continue the hearing
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on the summary judgment motion until September 12, 2024, to allow time for Cross to complete
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necessary discovery; and continue the trial date to April 14, 2025. ECF No. 63 at 2. CCCTA
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opposed the motion. ECF No. 64.
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II.
The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367.
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JURISDICTION
III.
LEGAL STANDARD
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A.
Rule 16
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A “scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly
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disregarded by counsel without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610
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(9th Cir. 1992) (quotation marks and citation omitted). Rather, a scheduling order “may be
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modified only for good cause with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s
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‘good cause’ standard primarily considers the diligence of the party seeking the amendment.”
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Johnson, 975 F.2d at 609. “Although the existence or degree of prejudice to the party opposing
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the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon
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the moving party’s reasons for seeking modification. If that party was not diligent, the inquiry
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should end.” Id. (citation omitted).
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B.
Rule 56(d)
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Rule 56(d) of the Federal Rules of Civil Procedure provides:
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If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition [to a
motion for summary judgment], the court may: (1) defer considering
the motion [for summary judgment] or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.
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United States District Court
Northern District of California
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Generally, Rule 56(d) allows a court to deny or postpone a motion for summary judgment “if the
nonmoving party has not had an opportunity to make full discovery.” Celotex Corp. v. Catrett,
477 U.S. 317, 326 (1986). To prevail on a Rule 56(d) motion, the “parties opposing a motion for
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summary judgment must make (a) a timely application [that] (b) specifically identifies (c) relevant
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information, (d) where there is some basis for believing that the information sought actually
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exists.” Blough v. Holland Realty. Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (quotation marks
and citations omitted). Courts generously grant Rule 56(d) motions, “unless the non-moving party
has not diligently pursued discovery of the evidence.” Burlington N. Santa Fe R. Co. v.
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Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773–74 (9th Cir. 2003)
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(citations omitted).
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IV.
DISCUSSION
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Cross filed this motion under Rule 56(d) of the Federal Rules of Civil Procedure,
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contending additional discovery is needed to oppose CCCTA’s motion for summary judgment.
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Specifically, Cross seeks: (1) to depose CCCTA HR Manager Lisa Rettig; (2) additional time to
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depose CCCTA’s Rule 30(b)(6) witness; (3) records responding to Cross’s January 10, 2023,
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document production request; and (4) expert declarations. ECF No. 63. CCCTA argues the
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motion is more appropriately analyzed as a modification of the Court’s scheduling order under
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Rule 16(b)(4) because it comes after the close of discovery and motion cutoff dates set by the
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United States District Court
Northern District of California
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Court’s scheduling order. ECF 64 at 3 (citing Chicago Title Co. v. Mireles, No. CV 22-1995
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MWF (AFMx), 2023 WL 4155406, at *1 (C.D. Cal. Feb. 27, 2023) and Clauder v. Cnty. of San
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Bernardino, ED CV 14-2011 PA (JCx), 2016 WL 145864, at *3 (C.D. Cal. Jan 11, 2016)).
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“Regardless, under both Rule 56(d) and Rule 16 the party making the request must show
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diligence.” Chicago Title Co., 2023 WL 4155406, at *2. Cross has failed to do so.
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Cross’s purported need to take the deposition of Lisa Rettig and complete the Rule
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30(b)(6) witness deposition is insufficient to modify the Court’s scheduling order, as Cross failed
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to diligently pursue witness depositions while discovery was open. Cross initially noticed Ms.
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Rettig’s deposition for December 19, 2022, but recognized that given the holidays and pre-existing
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vacations, it would need to be rescheduled. Trembly Decl. ¶¶ 9–10, ECF No. 65. Seven months
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later, on July 19, 2023, Cross noticed Ms. Rettig’s deposition for August 10, 2023, but cancelled
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eight days prior due to counsel’s family obligations. Id. ¶ 12. Cross noticed Ms. Rettig’s
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deposition again for August 24, 2023, but canceled the day before. Id. ¶ 14. The parties then
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agreed to reschedule Ms. Rettig’s deposition to September 21, 2023, but Cross failed to appear.
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Id. ¶ 15. Cross then let the fact deadline discovery expire without attempting to reschedule Ms.
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Rettig’s deposition. Id. As for CCCTA’s Rule 30(b)(6) deposition, the parties agreed for Cross to
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conduct the deposition after the December 21, 2023 fact discovery cutoff and set the deposition for
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January 30, 2024. Id. ¶ 18. Although Cross contends she did not finish deposing the Rule
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30(b)(6) witness, she never noticed a second day for the deposition, nor did she move the Court
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for an opportunity to do so. Id. ¶ 19. It was not until May 15, 2024, just two days before her
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deadline to oppose CCCTA’s motion for summary judgment, that Cross proposed she be allowed
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to continue the deposition before filing her opposition. Id.
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Cross’s need for documents responsive to her January 10, 2023, request is likewise
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insufficient. CCCTA contends the parties met and conferred over the scope of that request for
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several months and that it has produced all responsive documents. ECF No. 64 at 5. At no time
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before the fact-discovery cutoff date did Cross claim that CCCTA’s document production was
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insufficient or otherwise move to compel supplemental production. Trembly Decl. ¶ 6, ECF No.
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65. Instead, Cross waited until December 28, 2023, after fact discovery had closed, to raise any
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concern. Id. This does not constitute diligence. See Helfand v. Gerson, 105 F.3d 530, 536 (9th
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Cir. 1997) (failure to obtain information was plaintiffs’ fault when they did not challenge the
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assertion of privilege or bring a motion to compel production).
United States District Court
Northern District of California
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Finally, Cross has failed to show diligence in pursuing expert witness discovery. Cross
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contends that certain facts raised by the motion for summary judgment, such as whether the
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termination of Cross following a single collision is consistent with the transit authority’s policy
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and practice and whether the fault of the bicyclist was a major contributor to the collision, are
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within the topics of anticipated expert testimony, and evidence precluding summary judgment will
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be obtained from such experts. ECF No. 63 at 6. However, according to Cross, at least one of the
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experts is unavailable to begin work on the declaration until the beginning of June and will need at
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least until the end of June to complete their work. Id. As CCCTA points out, however, Cross has
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had several years to retain experts and obtain expert discovery. See ECF No. 50. She fails to
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explain why she could not have obtained her expert declarations earlier.
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Cross justifies her delay in pursuing discovery on the basis of the parties’ ongoing
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settlement efforts. Cross explains that “to facilitate settlement possibilities, [she] deferred
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completion of some discovery” in order “to limit the accrual of attorneys’ fees and costs, to make
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settlement more feasible.” ECF No. 63 at 3. Cross’s desire to limit costs does not justify her
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failure to complete discovery in accordance with the Court’s scheduling order. See Wood v.
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Boeing Co., No. C20-512 MJP, 2021 WL 1720993, at *3 (W.D. Wash. Apr. 30, 2021) (“While the
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Court understands that Wood sought to limit costs, that does not justify the failure to be prepared
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to oppose a dispositive motion.”). Cross also argues “the parties agreed to defer expert disclosure
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and discovery until after that process concluded.” ECF No. 63 at 3. CCCTA disputes this. ECF
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No. 64 at 6. Because there is no written evidence of the asserted agreement, the Court is unable to
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find that one was ever reached. Nor do counsel’s scheduling conflicts provide good cause. See
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Fitch v. City of Claremont, LA CV 14-07852 JAK (SSx), 2015 WL 13357605, at *12 (C.D. Cal.
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Dec. 8, 2015) (“That Plaintiff’s counsel has a busy practice is not a sufficient excuse.”); Shafer v.
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C.R. Bard, Inc., No. C 20-1056 RSM, 2021 WL 4441428, at *1 (W.D. Wash. Sept. 28, 2021) (no
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good cause to continue trial because “conflict was of his counsel’s own making” and plaintiff
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“failed to demonstrate diligence in bringing it to the Court’s attention.”).
Cross had years to complete discovery in this case and agreed to the close of fact discovery
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on December 21, 2023; the close of expert discovery on April 4, 2024; and dispositive motion
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deadline of May 16, 2024. ECF No. 50. If Cross believed additional time was necessary to
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complete discovery in order to effectively oppose summary judgment, she could—and should—
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have sought to amend those dates prior to their expiration. Instead, she waited until the day her
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response to CCCTA’s motion was due. Cross has failed to demonstrate diligence.
CONCLUSION
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United States District Court
Northern District of California
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For the foregoing reasons, Cross’s motion to modify the scheduling order is denied. Cross
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will have seven days from the date of this order to file a response to CCCTA’s motion for
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summary judgment. CCCTA’s reply is due seven days thereafter. The motion shall be deemed
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submitted as of the date the reply brief is due. No hearing will be held on the motion unless the
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Court so orders at a later date.
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IT IS SO ORDERED.
Dated: June 5, 2024
______________________________________
JON S. TIGAR
United States District Judge
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