Sharp v. Covenant Care LLC et al
Filing
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ORDER denying Defendant's 50 Motion to Modify the Scheduling Order. The 8/24/2012 pretrial motions filing is reinstated. Deadline has passed and no further pretrial motions shall be accepted for filing. Signed by Magistrate Judge William McCurine, Jr on 9/21/2012. (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DENNIS SHARP,
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Plaintiff,
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v.
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COVENANT CARE LLC; COVENANT
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CARE LA JOLLA, LLC dba LA JOLLA
NURSING AND REHABILITATION
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CENTER; LA JOLLA - CAL ASSOCIATES )
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L.P.; and DOES 1 through 10, Inclusive,
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Defendants.
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Case No. 11-cv-1379 CAB (WMc)
ORDER DENYING DEFENDANT’S
MOTION TO MODIFY SCHEDULING
ORDER
[ECF No. 50.]
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I. INTRODUCTION
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On August 21, 2012, the Court held a telephonic discovery conference. [ECF Nos. 45, 47.]
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After hearing from counsel of record, the Court: (1) vacated the deadline to file motions for
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summary judgment pending further order of the Court; and (2) issued a supplemental briefing
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schedule on the issue of whether the Court should stay this litigation or modify the scheduling order
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in light of Defendants’ planned modifications to the subject property. [ECF No. 46.] After careful
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consideration of the parties’ positions at the telephonic discovery conference as well as the parties’
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supplemental briefing, the Court DENIES Defendants’ Motion to Modify the Scheduling Order.
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[ECF No. 50.]
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11cv1379 CAB (WMc)
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II. STANDARD OF REVIEW
The Court will only modify dates set forth in a scheduling order upon a showing of good
cause by the moving party. Specifically, Fed. R. Civ. P. 16 states:
(b) Scheduling.
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(1) Scheduling Order. Except in categories of actions exempted by local rule, the
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district judge-or a magistrate judge when authorized by local rule-must issue a
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scheduling order:
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(A) after receiving the report from the parties under Rule 26(f); or
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(B) after consulting with the parties’ attorneys and any unrepresented parties
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at a scheduling conference or by telephone, mail, or other means.
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(2) Time to Issue. The judge must issue the scheduling order as soon as practicable,
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but in any event within the earlier of 120 days after any Defendant has been served
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with the complaint or 90 days after any Defendant has appeared.
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(3) Contents of the Order.
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(A) Required Contents. The scheduling order must limit the time to join
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other parties, amend the pleadings, complete discovery, and file motions.
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(B) Permitted Contents. The scheduling order may:
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(I) modify the timing of disclosures under Rules 26(a) and (e)(1);
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(ii) modify the extent of discovery;
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(iii) provide for disclosure or discovery of electronically stored
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information;
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(iv) include any agreements the parties reach for asserting claims of
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privilege or of protection as trial-preparation material after
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information is produced;
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(v) set dates for pretrial conferences and for trial; and
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(vi) include other appropriate matters
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(4) Modifying a Schedule. A schedule may be modified only for good cause and
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with the judge’s consent.
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11cv1379 CAB (WMc)
1 Accordingly, under Rule 16, the court is required to issue a scheduling order as soon as practicable,
2 and the order “must limit the time to join other parties, amend the pleadings, complete discovery, and
3 file motions.” Fed.R.Civ.P. 16(b)(3)(A). Once a scheduling order has been filed pursuant to Rule 16,
4 the “schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P.
5 16(b)(4). “ Rule 16(b)'s ‘good cause’ standard primarily considers the diligence of the party seeking
6 the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). If the
7 moving party fails to demonstrate diligence, “the inquiry should end.” Id. For example, good cause
8 may be found where the moving party shows it assisted the court with creating a workable scheduling
9 order, that it is unable to comply with the scheduling order's deadlines due to matters not reasonably
10 foreseeable at the time the scheduling order issued, and that it was diligent in seeking a modification
11 once it became apparent it could not comply with the scheduling order. Jackson v. Laureate, Inc.,
12 186 F.R.D. 605, 608 (E.D.Cal.1999) (citations omitted).
13 III. DISCUSSION
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A. Defendants’ Motion To Modify The Scheduling Order
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Defendants request a modification of the Court’s Scheduling Order to allow additional time
16 for the filing of a motion for summary judgment.1 Defendants’ anticipated motion for summary
17 judgment would be based on their remedial efforts to bring the subject property into compliance with
18 the Americans with Disabilities Act (“ADA”). Construction began on the subject property on
19 September 4, 2012. [Dettmer Decl., ECF No. 50-3.] In support of their motion, Defendants contend
20 they were unable to complete construction before the August 24, 2012 motion cut-off date due to a
21 slow permit approval process. In addition, Defendants argue an extension of the motion filing
22 deadline promotes efficiency within the court because the motion for summary judgment would
23 address standing and mootness issues, thereby streamlining issues for trial.
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In the alternative, Defendants urge the Court to stay the litigation to accommodate their
25 construction schedule and set a status conference in late November, 2012.
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The current pretrial motion cutoff date in this case was August 24, 2012. [ECF No. 35.] This deadline
reflects an extension of the original pretrial motion date of June 25, 2012 and was jointly proposed by the parties.
[ECF Nos. 25, 35.]
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11cv1379 CAB (WMc)
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B. Plaintiff’s Opposition
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Plaintiff argues Defendants have not been diligent in seeking a continuance and fail to
3 demonstrate good cause to allow them more time under the Scheduling Order to file a motion for
4 summary judgment. Specifically, Plaintiff notes Defendants’ request for additional time to file a
5 motion for summary judgment came only three days before the August 24, 2012 filing deadline.
6 Plaintiff also argues the Court’s Scheduling Order was in place for seven months and Plaintiff’s
7 demand for injunctive relief had been in Defendants’ possession for 10 months before they requested
8 an extension of the motion cut-off date. Plaintiff contends the delay in remediation efforts to the
9 subject property is a result of Defendants’ poor planning as they did not submit the architectural plans
10 for barrier removal until May of 2012 and did not begin construction until September 4, 2012, eleven
11 days after the motion cut-off date. Plaintiff argues allowing defendant additional time to complete
12 construction and then file a motion for summary judgment, all in an effort to moot Plaintiff’s claims,
13 is inefficient and prejudicial.
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C. Defendants Have Failed to Demonstrate Good Cause to Modify The Scheduling
15 Order
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In this case, the Court has already given the parties and Defendants, in particular, sufficient
17 time to identify the necessary items for remediation and begin construction on the property at issue.
18 Specifically, the Complaint was filed on June 21, 2011; an Answer was filed on July 21, 2011; and
19 an Early Neutral Evaluation Conference (“ENE) was scheduled for August 30, 2011. [ECF Nos.1,
20 6 and 8.] At the parties’ request, the ENE was continued to September 22, 2011. A case
21 management conference was held on November 10, 2011. The Court’s normal course is to issue a
22 Scheduling Order immediately after the case management conference.2 However, because the parties
23 represented to the Court that they were near settlement, the Court postponed issuing its Scheduling
24 Order for two months and set a status conference for January 18, 2012. In the Order setting the status
25 conference, the Court advised counsel to “be prepared to discuss the progress of settlement as well
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The Court notes the parties failed to assist the court with creating a workable scheduling order at the
November 10, 2011 conference. The Joint Case Management Conference Statement submitted in advance of the
CMC suggested the Court engage in a 9-month-long course of periodic status conferences only with no input as to
reasonable deadlines for discovery or pretrial motions.
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1 as proposed pretrial deadlines in the event settlement cannot be achieved.” [ECF No. 16.]
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2 keeping with the allowance of time to negotiate settlement, Plaintiff states that by the time the Court
3 sent its November 28, 2011 order allowing the parties additional time to negotiate, the Defendants
4 had already received Plaintiff’s demand3 for injunctive relief. [ECF No. 51 at 2.]
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The Court also gave the parties additional time to file dispositive motions in May of this year
6 in response to a joint request to continue the filing of pre-trial motions for 60 days. [ECF No. 35.]
7 On May 23, 2012, the Court granted the motion for additional time and continued the original
8 deadline for filing pretrial motions from June 25, 2012 to August 24, 2012. [ECF No. 37.] Two
9 weeks earlier, on May 9, 2012, Defendants had submitted construction documents and applications
10 to the Office of Statewide Health and Development. [ECF No. 50-3.] Even though it is clear
11 Defendants knew the extent of the work they were going to perform on the subject property by May
12 9, 2012 at the latest, they only asked for a 60-day continuance of the pretrial filing deadline in the
13 May 21, 2012 joint motion. [ECF No.35.]
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Defendants have not shown that their inability to comply with the scheduling order's deadlines
15 results from a situation not reasonably foreseeable at the time the scheduling order issued.
16 Defendants possessed Plaintiff’s detailed demand for injunctive relief since November, 2011 and
17 were given two months of additional time by the Court to work with Plaintiff to resolve the ADA
18 claims before a scheduling order issued in January, 2012. Moreover, in May 2012, when Defendants
19 were clearly aware of the construction work necessary to remediate the property, they did not inform
20 the Court that the work they intended to do could not be completed before the jointly requested
21 August 24, 2012 pretrial motion cutoff date. Instead, Defendants waited until three days before the
22 August 24, 2012 filing deadline to request a continuance or stay. Defendants were not diligent in
23 seeking a modification once it became apparent they could not comply with the scheduling order.
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Defendants ask the Court to follow the district court’s decision in Sanford v. Capital City
25 Restaurants, Inc., 2006 WL 5003842 (E.D. Cal.), an unpublished decision from the Eastern District
26 of California. In Sanford, the plaintiff alleged the facilities at the defendants’ restaurant violated the
27 Americans with Disabilities Act. In response, the defendants moved to stay the case on the ground
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Plaintiff made its demand for injunctive relief on or about November 8, 2011. [ECF No. 51.]
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1 that they planned to demolish and rebuild the restaurant thereby mooting the plantiff’s ADA claims.
2 The Sanford Court granted the defendants’ motion reasoning: “[w]hen the building is being
3 demolished and rebuilt, plaintiff will have no legally cognizable interest in obtaining an injunction
4 against defendants to do what they are already doing - i.e., ensuring that their restaurant is in
5 compliance with the ADA.” Id. at *2. What distinguishes the Sanford case from the instant matter
6 is that the defendants in Sanford possessed plans to remediate the restaurant before Plaintiff’s
7 complaint was filed. “Defendants had previously settled a lawsuit involving ADA violations at the
8 same restaurant, brought by another plaintiff.” Id. at *1. The court invoked its discretion to stay the
9 matter in order to promote the terms of the prior settlement which would efficiently resolve the issues
10 raised in the newly-filed ADA case. Essentially, the Sanford court stayed the proceedings at the
11 beginning of the case to allow the defendants time to complete what had already been in the works
12 as a result of a settlement in a previous ADA case which litigated the very issues the new Plaintiff
13 raised in the later action.
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The Sanford court did not issue a stay designed to moot an ADA plaintiff’s claims in a matter
15 such as this, where: (1) the case has gone on for more than a year of vigorous litigation, and (2)
16 Plaintiff’s ADA claims were unaddressed by Defendants at the time the complaint was filed. To stay
17 this action or to again continue the pretrial motion filing deadlines would be inefficient. There is no
18 guarantee that the work will be done by November 16, 2012, or that the work will be done correctly.
19 Plaintiff’s counsel has indicated the case is ready for trial and argues Plaintiff should not have to
20 incur the additional fees and costs of a litigation stay which would undermine Plaintiff’s right to be
21 compensated for combating ADA discrimination. Further, granting Defendants’ request encourages
22 defendants in ADA cases to wait as long as possible before remedying structures in violation of the
23 ADA. Here, Defendants are not requesting a modification to allow them to complete discovery,
24 locate witnesses or otherwise prepare for trial. Rather, Defendants want a continuance of this Court’s
25 Scheduling Order to complete modifications to their facility so as to moot Plaintiff’s claims which
26 were valid at the time of the complaint’s filing and apparently remain valid at the present time.
27 Defendants’ legal strategy breeds delay and inefficiency in litigated ADA cases. Defendants’ motion
28 to modify the scheduling order is, therefore, DENIED.
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1 IV. CONCLUSION AND ORDER THEREON
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Defendants failed to demonstrate their diligence or good cause required to modify the Court’s
3 January 23, 2012 Scheduling Order as required by Rule 16. The motion to modify the scheduling
4 order is DENIED.
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IT IS FURTHER ORDERED that the August 24, 2012 pre-trial motion filing deadline
6 vacated by the Court pending receipt of the parties supplemental briefing is hereby reinstated. The
7 deadline has passed and no further pretrial motions shall be accepted for filing.
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IT IS SO ORDERED.
9 DATED: September 21, 2012
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Hon. William McCurine, Jr.
U.S. Magistrate Judge, U.S. District Court
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