Frieri v. Sysco Corporation et al

Filing 30

ORDER: (1) Granting in Part Plaintiff's #25 Ex Parte Application to Extend Discovery Deadline and Plaintiff's Motion for Class Certification; and (2) Issuing First Amended Scheduling Order. It is ordered that Fact and class discovery are not bifurcated but class discovery must be completed by all parties by 10/13/2017. Plaintiff must file a motion for class certification by 11/10/2017. The parties must contact the Magistrate Judges Chambers within three court days of receiving a ruling on the class certification motion to set a date for a further Case Management Conference. Signed by Magistrate Judge Nita L. Stormes on 7/5/2017. (dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICK FRIERI, on behalf of himself and
all others similarly situated, and on behalf
of the general public,

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Case No.: 3:16-cv-01432-JLS-NLS
ORDER:

Plaintiff,

(1) GRANTING IN PART
PLAINTIFF’S EX PARTE
APPLICATION TO EXTEND
DISCOVERY DEADLINE AND
PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION; and

v.
SYSCO CORPORATION; SYSCO SAN
DIEGO, INC.; AND DOES 1-100,
Defendants.

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(2) ISSUING FIRST AMENDED
SCHEDULING ORDER

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(ECF No. 25)

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Before the Court is the Plaintiff’s ex parte application to extend the discovery

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deadline for class discovery and the date to file a motion for class certification. ECF No.

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25. Defendant opposes the request. ECF No. 29.

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The operative scheduling order requires class discovery to be completed by July

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12, 2017 and a motion for class certification to be filed by August 7, 2017. ECF No. 20.

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Plaintiff seeks to extend these deadlines by 120 days. ECF No. 25. Defendant counters
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that a 120 day extension is unwarranted, and seeks to limit the extension to 45 or 60 days.

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ECF No. 29.

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A request to modify the scheduling order is governed by Federal Rules of Civil

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Procedure 16(b)(4), stating “[a] schedule may be modified only for good cause and with

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the judge’s consent.” The good cause standard articulated in Rule 16 focuses on the

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diligence of the party seeking to amend the scheduling order, and the reasons for seeking

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

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(“[T]he focus of the inquiry is upon the moving party's reasons for seeking modification.

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... If that party was not diligent, the inquiry should end.”) (citing Gestetner Corp. v. Case

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Equip. Co., 108 F.R.D. 138, 141 (D.Me.1985)).1 The district court may amend the

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scheduling order if it “cannot be met despite the diligence of the party seeking the

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extension.” Id. (citing Fed. R. Civ. P. 16 Advisory Committee Notes).

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The parties submissions demonstrate appropriate diligence and continued meet and

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confer efforts in seeking and tailoring discovery, and this is the first request to modify the

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scheduling order. The Court also notes that both parties have discovery requests pending

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that would not be completed by the discovery cut-off, so neither party may claim

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prejudice. However, the Court finds a 120 day extension to be excessive.
Plaintiff’s ex parte application is GRANTED IN PART. The Court modifies the

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dates as follows:

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1. Fact and class discovery are not bifurcated but class discovery must be

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completed by all parties by October 13, 2017. “Completed” means that all

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discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and

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discovery subpoenas under Rule 45, must be initiated a sufficient period of

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The Court also cautions that a delay in production of documents that is not sanctioned by the Court
does not provide good cause for a continuance on discovery deadlines. As set forth in the initial
scheduling order and reiterated here, discovery is to be initiated in sufficient time to be complete by the
cut-off date. Responses and production must be complete no later than the time specified in the request
or a reasonable time specified in the response. Fed R. Civ. P. 34(b)(2)(B).
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time in advance of the cut-off date, so that it may be completed by the cut-

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off date, taking into account the times for service, notice and response as set

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forth in the Federal Rules of Civil Procedure. Counsel must promptly and in

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good faith meet and confer with regard to all discovery disputes in compliance

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with Local Rule 26.1(a). The Court expects counsel to make every effort to

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resolve all disputes without court intervention through the meet and confer

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process. If the parties reach an impasse on any discovery issue, counsel must,

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within forty-five (45) days of the date upon which the event giving rise to the

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dispute occurred, file a joint statement entitled, “Joint Motion for Determination

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of Discovery Dispute.” The parties must comply with Judge Stormes’

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“Chambers’ Rules” (available on the court’s website) when filing such a

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motion.

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2. Plaintiff must file a motion for class certification by November 10, 2017.

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3. The parties must contact the Magistrate Judge’s Chambers within three court

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days of receiving a ruling on the class certification motion to set a date for a

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further Case Management Conference.

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IT IS SO ORDERED.
Dated: July 5, 2017

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