Low 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) (jao).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SONNY LOW, J.R. EVERETT and
JOHN BROWN, on Behalf of Themselves
and All Others Similarly Situated,

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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.

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Before the Court is Defendants’ ex parte application to continue the November 28,

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2016 trial date to January 2, 2017. ECF No. 510. Plaintiffs filed an opposition on

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September 14, 2016. ECF No. 512. Based on the reasoning below, the Court DENIES

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Defendants’ ex parte application to continue the November 28, 2016 trial date.

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DISCUSSION
“A schedule may be modified only for good cause and with the judge’s consent.”

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Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the diligence of

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the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 609 (9th Cir. 1992). “The pretrial schedule may be modified if it cannot reasonably
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be met despite the diligence of the party seeking the extension. If the party seeking the

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modification was not diligent, the inquiry should end and the motion to modify should

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not be granted.” Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th Cir.

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2002) (citation and internal quotation marks omitted).

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I.

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Good Cause
Defendants request that the Court continue the scheduled November 28, 2016 trial

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date until after the conclusion of the Flo & Eddie, Inc. v. Sirius XM Radio Inc., No. 13-

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5693-PSG-GJS (C.D. Cal.) (“Sirius XM”) trial. The Sirius XM trial is scheduled to begin

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on November 15, 2016. See ECF No. 510-1, Declaration of Daniel M. Petrocelli

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(“Petrocelli Decl.”) ¶ 3. Mr. Daniel Petrocelli, Esq. is the lead counsel for the Sirius XM

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trial and for the trial in the instant case. Id. ¶¶ 2–3. Defendants contend that defense

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counsel will have inadequate time to prepare for trial in the instant case if a trial

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continuance is not granted.

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The instant case has been pending for six and a half years. See ECF No. 1. The

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Court has repeatedly accommodated Defendants’ requests with respect to scheduling

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trial. See, e.g., ECF No. 512-2 at 5, 10, 15, 49, 74, 83. Although defense counsel agreed

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to a November 15, 2016 date for the Sirius XM trial in January 2016, defense counsel did

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not inform the Court about the possibility of a conflict with the November 28, 2016 trial

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date until August 26, 2016. See id. at 254. Defense counsel had multiple opportunities to

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raise the issue with the Court prior to August 26, 2016 but did not do so. In light of these

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facts, the Court concludes that Defendants have failed to establish good cause to continue

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the November 28, 2016 trial date.

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II.

Actual Conflict
Defendants assert that (1) an actual conflict exists between trial in the Sirius XM

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case and the November 18, 2016 hearing on jury instructions in the instant case, and that

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(2) a potential conflict exists between the two trials.

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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
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concurrently with the scheduled hearing on motions in limine. The parties shall file and

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email, in WordPerfect or Word format, to the Court’s email address at

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[e-mail] joint proposed jury instructions and special verdict forms,

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including any objections with relevant supporting authorities on or before October 28,

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2016.

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With respect to the trial date, Defendants do not establish that an actual conflict

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exists between trial in the Sirius XM case and in the instant case. Defense counsel is

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directed to prepare for trial as scheduled.

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CONCLUSION
For the foregoing reasons, the Court hereby (1) DENIES Defendants’ ex parte

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application to continue the November 28, 2016 trial date to January 2, 2017 and (2)

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RESETS the hearing on jury instructions to November 10, 2016 at 1:30pm.

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IT IS SO ORDERED.

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Dated: September 15, 2016

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