Compass Bank v. Morris Cerullo World Evangelism

Filing 86

ORDER Granting in Part and Denying in Part 84 Ex Parte Motion to Continue. Signed by Magistrate Judge William V. Gallo on 12/22/2014. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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COMPASS BANK,
Plaintiff,

v.

MORRIS CERULLO WORLD
EVANGELISM,
Defendant.

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Civil No. 13-CV-0654-BAS (WVG)
ORDER SETTING BRIEFING
SCHEDULE FOR DISCOVERY
DISPUTE
[DOC. NO. 84]

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I. BACKGROUND

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On December 15, 2014, Defendant Morris Cerullo World Evangelism (“Defendant”)

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filed an Ex Parte Motion to Continue Case Management Order Deadlines.1/ (Doc. No. 84.)

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In its Ex Parte Motion, Defendant requests that the Court continue the January 20, 2015,

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discovery deadline, and the February 20, 2015, motion cutoff for a period of 60-90 days. Id.

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at 8. Defendant notes that the primary purpose for the extension request is to allow the

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parties to coordinate approximately 15 planned depositions. Id. at 2.

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1/

Defendant represents that this extension request is unopposed, creating the
impression that Plaintiff supported in full not only the request for the extension, but the
28 length of the extension. However, Plaintiff, while not opposing the extension request,
opposes the length of the extension.
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On December 15, 2014, Mr. Patrick Kane, counsel for Plaintiff Compass Bank

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(“Plaintiff”), filed a Declaration in Support of Plaintiff’s Opposition to Defendant’s Ex Parte

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Motion. (Doc. No. 85.) In his Declaration, Plaintiff’s counsel argued that there is no need

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to extend the discovery deadline beyond 30 days, as the parties can complete all necessary

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depositions by February 20, 2015, if not sooner. Id. at 2.

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II. DISCUSSION

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A. NO GOOD CAUSE TO EXTEND DISCOVERY OR MOTION CUTOFF BY
60-90 DAYS

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Rule 16(b)(4) “provides that a district court’s scheduling order may be modified upon

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a showing of ‘good cause,’ an inquiry which focuses on the reasonable diligence of the

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moving party.” Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 (9th Cir.2007); citing

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). In Johnson, the

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Ninth Circuit explained,

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... Rule 16(b)’s “good cause” standard primarily concerns the diligence of the
party seeking the amendment. The district court may modify the pretrial
schedule “if it cannot reasonably be met despite the diligence of the party
seeking the extension.” Fed .R.Civ.P. 16 advisory committee’s notes (1983
amendment) ... [T]he focus of the inquiry is upon the moving party’s reasons
for seeking modification.... If that party was not diligent, the inquiry should
end.
Johnson, 975 F.2d at 609.

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In part, the “good cause” standard requires the parties to demonstrate that “noncom-

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pliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts

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to comply, because of the development of matters which could not have been reasonably

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foreseen or anticipated at the time of the Rule 16 Scheduling conference ...” Jackson v.

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Laureate, Inc., 186 F.R.D. 605, 608 (E.D.Cal. Jun. 16, 1999).

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Here, the Court held a Case Management Conference (“CMC”) more than one year

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ago, on December 4, 2013. (Doc. No. 40.) However, the parties did not begin written

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discovery until April of 2014. On June 6, 2014, the Court stayed discovery for 53 days while

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the parties determined whether additional parties would be served in this litigation. The

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parties were engaged in discovery from December of 2013 through April of 2014, and again
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from June of 2014 through the present. However, the parties did not begin discussing

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deposition schedules until October of 2014. While the Court appreciates that the parties had

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an interest in conducting discovery prior to deposing witnesses, scheduling the first

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deposition for December 16, 2014, with a January 20, 2015, discovery cutoff, shows a lack

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of diligence in conducting discovery.

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Further, Defendant notes that one of its witnesses, Lynn Hodge, has been ordered by

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a doctor to avoid stressful interactions or situations over the next several weeks. (Doc. No.

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84 at 5.) However, in the next paragraph, Defendant states that it has an Annual World

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Conference from January 6-10, “which requires a significant amount of time and preparation

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by Mr. Hodge...” Id. The Court finds that, if Mr. Hodge is well enough to plan an Annual

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World Conference for the beginning of January, then he is well enough to sit for his

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deposition in December.

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Moreover, Defendant asserts that the scheduling issues are exacerbated by the

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Christmas and New Year’s holidays, which effectively eliminates the last two weeks of

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December as viable deposition dates. (Doc. No. 84 at 6.) Defendant makes no attempt to

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explain why these two weeks are essentially eliminated from the schedule as available

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deposition dates, other than to say that it is the Christmas and New Year’s holidays.

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The Court finds that Defendant has provided no justification as to why it needs an

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extension of the discovery cutoff and motion deadline for 60 days, rather than for 30 days.

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The Court typically sets a dispositive motion deadline for a date approximately 30 days after

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the discovery deadline. Here, because the Court will grant Defendant’s request in part and

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extend the discovery deadline by 30 days, it will also grant Defendant’s request to extend the

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dispositive motion deadline by a corresponding 30 days.

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III. RULING

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The Court hereby GRANTS IN PART and DENIES IN PART Defendant’s Ex Parte

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Motion. All discovery shall be completed by all parties on or before February 20, 2015.2/

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All motions, other than motions to amend or join parties, or motions in limine, shall be filed

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on or before March 20, 2015. No further extension requests will be granted.

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IT IS SO ORDERED.

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DATED: December 22, 2014

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Hon. William V. Gallo
U.S. Magistrate Judge

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2/

"Completed" means that all discovery under Rules 30-36 of the Federal Rules of
Civil Procedure must be initiated a sufficient period of time in advance of the cut-off date,
so that it may be completed by the cut-off date, taking into account the times for services,
26 notice, and response as set forth in the Federal Rules of Civil Procedure, and any motions
and the resolution of any discovery disputes. All disputes concerning discovery shall be
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date upon which the event giving rise to the discovery dispute occurred. Counsel shall meet
28 and confer pursuant to the requirements of Fed. R. Civ. P. 26 and Local Rule 26.1(a).
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