Makaeef v. Trump University, LLC et al

Filing 513

ORDER Denying Defendats' Ex Parte 510 Application to Continue the November 28, 2016 Trial Date. The Court resets the hearing on jury instructions to November 10, 2016 at 1:30pm. Signed by Judge Gonzalo P. Curiel on 9/15/16. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 SONNY LOW, J.R. EVERETT and JOHN BROWN, on Behalf of Themselves and All Others Similarly Situated, 13 14 15 16 17 18 Case No.: 3:10-cv-00940-GPC-WVG ORDER DENYING DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE THE NOVEMBER 28, 2016 TRIAL DATE Plaintiffs, v. TRUMP UNIVERSITY, LLC, a New York Limited Liability Company, and DONALD J. TRUMP, [ECF No. 510.] Defendants. 19 20 Before the Court is Defendants’ ex parte application to continue the November 28, 21 2016 trial date to January 2, 2017. ECF No. 510. Plaintiffs filed an opposition on 22 September 14, 2016. ECF No. 512. Based on the reasoning below, the Court DENIES 23 Defendants’ ex parte application to continue the November 28, 2016 trial date. 24 25 DISCUSSION “A schedule may be modified only for good cause and with the judge’s consent.” 26 Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the diligence of 27 the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 28 604, 609 (9th Cir. 1992). “The pretrial schedule may be modified if it cannot reasonably 1 3:10-cv-00940-GPC-WVG 1 be met despite the diligence of the party seeking the extension. If the party seeking the 2 modification was not diligent, the inquiry should end and the motion to modify should 3 not be granted.” Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 4 2002) (citation and internal quotation marks omitted). 5 I. 6 Good Cause Defendants request that the Court continue the scheduled November 28, 2016 trial 7 date until after the conclusion of the Flo & Eddie, Inc. v. Sirius XM Radio Inc., No. 13- 8 5693-PSG-GJS (C.D. Cal.) (“Sirius XM”) trial. The Sirius XM trial is scheduled to begin 9 on November 15, 2016. See ECF No. 510-1, Declaration of Daniel M. Petrocelli 10 (“Petrocelli Decl.”) ¶ 3. Mr. Daniel Petrocelli, Esq. is the lead counsel for the Sirius XM 11 trial and for the trial in the instant case. Id. ¶¶ 2–3. Defendants contend that defense 12 counsel will have inadequate time to prepare for trial in the instant case if a trial 13 continuance is not granted. 14 The instant case has been pending for six and a half years. See ECF No. 1. The 15 Court has repeatedly accommodated Defendants’ requests with respect to scheduling 16 trial. See, e.g., ECF No. 512-2 at 5, 10, 15, 49, 74, 83. Although defense counsel agreed 17 to a November 15, 2016 date for the Sirius XM trial in January 2016, defense counsel did 18 not inform the Court about the possibility of a conflict with the November 28, 2016 trial 19 date until August 26, 2016. See id. at 254. Defense counsel had multiple opportunities to 20 raise the issue with the Court prior to August 26, 2016 but did not do so. In light of these 21 facts, the Court concludes that Defendants have failed to establish good cause to continue 22 the November 28, 2016 trial date. 23 24 II. Actual Conflict Defendants assert that (1) an actual conflict exists between trial in the Sirius XM 25 case and the November 18, 2016 hearing on jury instructions in the instant case, and that 26 (2) a potential conflict exists between the two trials. 27 28 The Court VACATES the November 18, 2016 hearing on jury instructions and RESETS the hearing to November 10, 2016 at 1:30pm. The hearing will be held 2 3:10-cv-00940-GPC-WVG 1 concurrently with the scheduled hearing on motions in limine. The parties shall file and 2 email, in WordPerfect or Word format, to the Court’s email address at 3 joint proposed jury instructions and special verdict forms, 4 including any objections with relevant supporting authorities on or before October 28, 5 2016. 6 With respect to the trial date, Defendants do not establish that an actual conflict 7 exists between trial in the Sirius XM case and in the instant case. Defense counsel is 8 directed to prepare for trial as scheduled. 9 10 CONCLUSION For the foregoing reasons, the Court hereby (1) DENIES Defendants’ ex parte 11 application to continue the November 28, 2016 trial date to January 2, 2017 and (2) 12 RESETS the hearing on jury instructions to November 10, 2016 at 1:30pm. 13 IT IS SO ORDERED. 14 15 Dated: September 15, 2016 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:10-cv-00940-GPC-WVG

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