Nutrition Distribution LLC v. PEP Research, LLC et al

Filing 66

ORDER Denying 64 Defendants' Ex Parte Motion to Permit MSC Attendance Via Telephone, Vacating MSC, and Setting Telephonic Attorneys-Only Case Management Conference. The Court Vacates the MSC set for 10/22/2018 at 1:30 p.m. Telephonic Case Management Conference set for 11/8/2018 at 03:00 p.m. before Magistrate Judge Barbara Lynn Major. Signed by Magistrate Judge Barbara Lynn Major on 10/18/2018. (ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16CV2328-WQH(BLM)

NUTRITION DISTRIBUTION LLC,

ORDER DENYING DEFENDANTS’ EX
PARTE MOTION TO PERMIT MSC
ATTENDANCE VIA TELEPHONE,
VACATING MSC, AND SETTING
TELEPHONIC ATTORNEYS-ONLY CASE
MANAGEMENT CONFERENCE

Plaintiff,

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v.

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PEP RESEARCH, LLC, BRIAN REYNDERS,
FRED REYNDERS, AND DOES 1-10,

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Defendants.

[ECF No. 64]

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On October 16, 2018, Defendants filed an Ex Parte Motion to Permit MSC Attendance Via

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Telephone. ECF No. 64. Defendants’ three representatives request permission to attend the

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October 22, 2018 Mandatory Settlement Conference (“MSC”) via telephone. Id. at 2. In support,

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Defendants argue there is good cause for their request because Defendant (1) Brian Reynders

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is a mis-named party who has no involvement with Defendant PEP and who should be dismissed

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when the pending motion for summary judgment is decided, (2) Fred Reynders is a retired

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septuagenarian who cannot afford the cost, stress, and time required to attend the MSC in

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person, and (3) Brent Reynders, who has a one-man business, also cannot afford the cost and

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time required to attend the MSC in person. Id.; see also ECF No. 64-1, Declaration of Stephen

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M. Lobbin in Support of Ex Parte Motion to Permit MSC Attendance Via Telephone (“Lobbin

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Decl.”) at ¶¶ 4-6. In further support, Defendants argue that they do not have money to spend

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traveling to the MSC from Texas where they reside, because they were recently sanctioned by

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the Court. Id.; see also Lobbin Decl. at ¶ 7. Finally, Defendants argue that same considerations
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16CV2328-WQH(BLM)

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that took place when the Court permitted Plaintiff to telephonically depose Defendants to limit

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expenses, should apply here as well. Id. at 3.

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On October 16, 2018, Plaintiff filed an Opposition to Defendants’ Ex Parte Motion to Permit

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MSC Attendance Via Telephone. ECF No. 65. Plaintiff contends Defendants’ motion should be

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denied because Defendants have been aware of the MSC since April 16, 2018 and their late

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request to be excused demonstrates a lack of diligence. Id. at 2. Plaintiff further contends that

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the basis of Defendants’ request does not meet the standard required for being excused from

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personal appearance. Id. Plaintiff notes that its representative has already arranged travel from

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Idaho to California for the MSC and would “be subject to costs” if the Court were to hold the

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conference telephonically. Id. at 3.

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Defendants’ motion is DENIED. The Court’s chambers rules state that “[t]he Court will

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not grant requests to excuse a required party from personally appearing [at an MSC] absent

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extraordinary circumstances. Distance of travel alone does not constitute an ‘extraordinary

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circumstance.’” In addition, the November 3, 2017 scheduling order that was entered in this

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case states that “[u]nless there is good cause, persons required to attend the conference

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pursuant to this Order shall not be excused from personal attendance.” ECF No. 22 at 4. The

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Court believes that the presence of all parties and counsel is critical to the possibility of a

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successful settlement. However, after reviewing the parties’ settlement statements, the Court

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finds that the parties are not ready to engage in meaningful settlement discussions at this time

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and VACATES the MSC set for October 22, 2018 at 1:30 p.m. The Court will hold a telephonic,

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attorneys-only Case Management Conference on November 8, 2018 at 3:00 p.m. All other

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deadlines and requirements remain as previously set. See ECF Nos. 22 and 34.

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IT IS SO ORDERED.
Dated: 10/18/2018

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16CV2328-WQH(BLM)