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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RICK FRIERI, on behalf of himself and all others similarly situated, and on behalf of the general public, 13 14 15 16 17 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. 18 (2) ISSUING FIRST AMENDED SCHEDULING ORDER 19 20 (ECF No. 25) 21 22 23 Before the Court is the Plaintiff’s ex parte application to extend the discovery 24 deadline for class discovery and the date to file a motion for class certification. ECF No. 25 25. Defendant opposes the request. ECF No. 29. 26 The operative scheduling order requires class discovery to be completed by July 27 12, 2017 and a motion for class certification to be filed by August 7, 2017. ECF No. 20. 28 Plaintiff seeks to extend these deadlines by 120 days. ECF No. 25. Defendant counters 1 3:16-cv-01432-JLS-NLS 1 that a 120 day extension is unwarranted, and seeks to limit the extension to 45 or 60 days. 2 ECF No. 29. 3 A request to modify the scheduling order is governed by Federal Rules of Civil 4 Procedure 16(b)(4), stating “[a] schedule may be modified only for good cause and with 5 the judge’s consent.” The good cause standard articulated in Rule 16 focuses on the 6 diligence of the party seeking to amend the scheduling order, and the reasons for seeking 7 modification. Johnson v. Mammoth Recreations, Inc. 975 F.2d 604, 609 (9th Cir. 1992) 8 (“[T]he focus of the inquiry is upon the moving party's reasons for seeking modification. 9 ... If that party was not diligent, the inquiry should end.”) (citing Gestetner Corp. v. Case 10 Equip. Co., 108 F.R.D. 138, 141 (D.Me.1985)).1 The district court may amend the 11 scheduling order if it “cannot be met despite the diligence of the party seeking the 12 extension.” Id. (citing Fed. R. Civ. P. 16 Advisory Committee Notes). 13 The parties submissions demonstrate appropriate diligence and continued meet and 14 confer efforts in seeking and tailoring discovery, and this is the first request to modify the 15 scheduling order. The Court also notes that both parties have discovery requests pending 16 that would not be completed by the discovery cut-off, so neither party may claim 17 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 18 19 dates as follows: 20 1. Fact and class discovery are not bifurcated but class discovery must be 21 completed by all parties by October 13, 2017. “Completed” means that all 22 discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and 23 discovery subpoenas under Rule 45, must be initiated a sufficient period of 24 25 26 27 28 1 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). 2 3:16-cv-01432-JLS-NLS 1 time in advance of the cut-off date, so that it may be completed by the cut- 2 off date, taking into account the times for service, notice and response as set 3 forth in the Federal Rules of Civil Procedure. Counsel must promptly and in 4 good faith meet and confer with regard to all discovery disputes in compliance 5 with Local Rule 26.1(a). The Court expects counsel to make every effort to 6 resolve all disputes without court intervention through the meet and confer 7 process. If the parties reach an impasse on any discovery issue, counsel must, 8 within forty-five (45) days of the date upon which the event giving rise to the 9 dispute occurred, file a joint statement entitled, “Joint Motion for Determination 10 of Discovery Dispute.” The parties must comply with Judge Stormes’ 11 “Chambers’ Rules” (available on the court’s website) when filing such a 12 motion. 13 2. Plaintiff must file a motion for class certification by November 10, 2017. 14 3. The parties must contact the Magistrate Judge’s Chambers within three court 15 days of receiving a ruling on the class certification motion to set a date for a 16 further Case Management Conference. 17 18 IT IS SO ORDERED. Dated: July 5, 2017 19 20 21 22 23 24 25 26 27 28 3 3:16-cv-01432-JLS-NLS

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