Cervantes et al v. A.D.F. Custom Concrete Construction, Inc. et al

Filing 26

ORDER RE: 21 CONTINUING HEARING DATE AND EXTENDING BRIEFING SCHEDULE by Judge Richard Seeborg. (rslc2, COURT STAFF) (Filed on 5/21/2009)

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United States District Court

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For the Northern District of California

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JUAN CERVANTES, RAFAEL ARVIZU, NICOLAS GOMEZ, CESAR NAVA, and ALEJANDRO CRUZSANDOVAL, on behalf of themselves and all others similarly situated, Plaintiffs, v. A.C.F. CUSTOM CONCRETE CONSTRUCTION, INC., ART C. FISHER, and DOES 1 through 20, inclusive, Defendants. ____________________________________/

No. 5:08 CV 4798 RS

ORDER CONTINUING HEARING DATE AND EXTENDING BRIEFING SCHEDULE

THIS MATTER is before the Court on plaintiffs' motion to change time. On May 1, 2009, defendants filed a summary judgment motion, which they noticed for hearing on June 24, 2009-- well beyond the 35-day minimum notice period prescribed by Civil Local Rule 7-2. Motion for Summary Judgment, filed May 1, 2009. Accordingly, under the local rules, plaintiff's opposition is currently due on June 3, 2009, and defendants' reply is due June 10, 2009. See Rule 7-3(b) & (c) (providing that the opposition is due 21 days before the motion hearing and the reply is due 14 days before the motion hearing). On May 11, 2009, plaintiffs moved to continue the hearing date because plaintiffs' counsel has previously made plans to be out of the country on June 24 and will not return until July 5. Plaintiffs request the hearing date be moved to September 2009. Defendants, who oppose plaintiffs'

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motion to change time, consent to the summary judgment hearing's postponement, but only until July. Defendants' proposal appears more reasonable, and accordingly, the summary judgment hearing in this case will be continued until Wednesday, July 29, 2009, at 9:30 a.m, in Courtroom 4, 5th Floor, United States Courthouse, San Jose, California. Counsel state they are unable to agree on a briefing schedule for the summary judgment motion. Civil Local Rule 7-7(d), which governs orders for continuance of motion hearings, states: Unless the order for continuance specifies otherwise, the entry of an order continuing the hearing of a motion automatically extends the time for filing and serving opposing papers or reply papers to 21 and 14 days, respectively, preceding the new hearing date, unless the date for filing the papers has already passed prior to the date of the order for continuance. In this case, Rule 7-7(d) would make the opposition due July 8 and the reply due July 15. Plaintiffs note, however, that the 60 day opt-in notice period in this case ends on July 4. Accordingly, the Court will extend the briefing schedule by five days to give plaintiffs' counsel more time to prepare his opposition following the July 4 deadline. Thus, the opposition will be due July 13. Defendants' reply deadline will also be extended five days, to July 20. Accordingly, plaintiffs' motion to change time is granted. Defendants' summary judgment motion will be heard on July 29, 2009. Plaintiffs' opposition deadline is extended to July 13, 2009, and defendants' reply deadline is extended to July 20, 2009.

United States District Court

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For the Northern District of California

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IT IS SO ORDERED.

Dated:

5/21/09 RICHARD SEEBORG United States Magistrate Judge

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