Nippon Zoki Pharmaceutical Co., LTD. v. The Regents of the University of California et al

Filing 36

ORDER denying 35 Motion to Continue without prejudice. Signed by Magistrate Judge William V. Gallo on 04/19/2017. (ja1)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 NIPPON ZOKI PHARMACEUTICAL CO., LTD, 15 16 ORDER DENYING MOTION TO CONTINUE FACT DISCOVERY DEADLINE WITHOUT PREJUDICE Plaintiff, 13 14 Case No.: 16-CV-779-W-WVG v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, [ECF No. 35] Defendant. 17 18 Present before the Court is the parties Joint Motion to continue the fact discovery 19 deadline by sixty days. (ECF No. 35.) Because the parties have not demonstrated good 20 cause for such an extension, the Joint Motion is DENIED without prejudice. 21 DISCUSSION 22 On October 24, 2016, the Court issued a Scheduling Order pursuant to Federal Rule 23 of Civil Procedure (“FRCP”) 16(b) setting July 21, 2017 as the date by which all discovery 24 pertaining to facts was to be completed. (ECF No. 24 at 2:22-23.) With more than three 25 months remaining to conduct fact discovery, on April 17, 2017, the parties filed the present 26 Joint Motion, requesting the Court continue the fact discovery deadline by sixty days. The 27 basis for the request is that the collection and exchange of electronically stored information 28 (“ESI”) is “far more extensive than the parties originally anticipated.” (ECF No. 35 at 2:151 16-CV-779-W-WVG 1 16.) 2 Pursuant to FRCP 16(b)(3), a district court is required to enter a pretrial scheduling 3 order that “must limit the time to join other parties, amend the pleadings, complete 4 discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). The scheduling order “controls 5 the course of the action unless the court modifies it [ ]” and FRCP “16 is to be taken 6 seriously.” Fed. R. Civ. P. 16(d); Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 7 1994). Indeed, parties must “diligently attempt to adhere to [the Court’s] schedule 8 throughout the subsequent course of the litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 9 605, 607 (E.D. Cal. 1999). “A scheduling order ‘is not a frivolous piece of paper, idly 10 entered, which can be cavalierly disregarded without peril.’” Johnson v. Mammoth 11 Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (quoting Gestetner Corp. v. Case 12 Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)). 13 FRCP 16(b)(4) “provides that a district court’s scheduling order may be modified 14 upon a showing of ‘good cause,’ an inquiry which focuses on the reasonable diligence of 15 the moving party.” Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 (9th Cir. 2007); citing 16 Johnson, 975 F.2d at 609. In Johnson, the Ninth Circuit Court of Appeal explained, 17 …Rule 16(b)’s “good cause” standard primarily concerns the diligence of 18 the party seeking the amendment. The district court may modify the pretrial 19 schedule “if it cannot reasonably be met despite the diligence of the party 20 seeking the extension.” Fed. R. Civ. P. 16 advisory committee’s notes (1983 21 amendment)…[T]he focus of the inquiry is upon the moving party’s reasons 22 for seeking modification…If that party was not diligent, the inquiry should 23 end. 24 Johnson, 975 F.2d at 609. 25 In part, the “good cause” standard requires the parties to demonstrate that 26 “noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her 27 diligent efforts to comply, because of the development of matters which could not have 28 been reasonably foreseen or anticipated at the time of the Rule 16 Scheduling 2 16-CV-779-W-WVG 1 conference…” Jackson, 186 F.R.D. at 608. 2 The Court finds the Joint Motion does not adequately demonstrate good cause to 3 warrant an extension. In the Joint Motion, the parties aver that “Defendant served written 4 discovery requests on Plaintiff on February 15, 2017,” nearly four months after the opening 5 of fact discovery. (ECF No. 35 at 2, ¶ 4.) The parties then indicate they are “in the process 6 of exchanging responsive documents and ESI.” (ECF No. 35 at 2, ¶ 8.) Notably absent 7 from the Joint Motion is the date by which the parties propounded requests for production 8 of documents, or other specific requests for the ESI in question. Without this information, 9 the Court finds it difficult to conclude the parties “diligently attempt[ed] to adhere” to the 10 Court’s schedule. Jackson, 186 F.R.D. at 607. Additionally, the parties simply describe 11 the volume of ESI as “extensive” or “significant” without going into any detail of the 12 magnitude of the outstanding ESI, which party is working to retrieve the ESI, and what 13 processes are involved in obtaining the ESI. Without this key information, the Court is 14 unable to find good cause exists to amend the Scheduling Order. Most concerning to the 15 Court is there is no explanation as to why Defendant waited nearly four months to 16 commence written discovery and what Defendant may have been doing during that time to 17 litigate this case. 18 For the foregoing reasons, the Court DENIES the parties Joint Motion without 19 prejudice. Should the parties seek another extension, the parties must supply the Court with 20 the pertinent information described above and justification as to why discovery cannot be 21 completed in the remaining three months of fact discovery. 22 23 IT IS SO ORDERED. Dated: April 19, 2017 24 25 26 27 28 3 16-CV-779-W-WVG

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