Petconnect Rescue, Inc. v. Salinas et al
Filing
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ORDER Denying Ex Parte Application For Briefing Schedule On Cross-Motion For Summary Judgment [ECF No. 232 ]. Signed by Judge Linda Lopez on 5/10/2022. (ddf)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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PETCONNECT RESCUE, INC., a
Maryland corporation; LUCKY PUP
DOG RESCUE.COM, a California
corporation, and SARAH GONZALEZ,
an individual,
Case No.: 20cv527-LL-DEB
ORDER DENYING EX PARTE
APPLICATION FOR BRIEFING
SCHEDULE ON CROSS-MOTION
FOR SUMMARY JUDGMENT
Plaintiffs,
v.
[ECF No. 232]
DAVID SALINAS, an individual, et al.,
Defendants
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Presently before the Court is Plaintiffs’ Ex Parte Application for a Briefing Schedule
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on Cross-Motion for Summary Judgment (“Motion”). ECF No. 232. Defendants Brian
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Mohrfield and Select Puppies, Inc. filed an Opposition to Plaintiffs’ Ex Parte Application
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on May 3, 2022. ECF No. 235. Defendants Pet Connect Rescue, Inc., Ray Rothman, David
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Salinas, Yellow Store Enterprises, LLC also filed an Opposition to Plaintiffs’ Ex Parte
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Application. ECF No. 236.
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In the Motion, Plaintiffs request that their deadline to file any opposition or cross1
20cv527-LL-DEB
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motion for summary judgment “to be set 30 days after all outstanding discovery ordered
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by the Court is obtained, or the Court rules that no further discovery should be compelled,
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whichever comes later.” Id. at 2. Plaintiffs state that “Defendants filed their summary
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judgment motions on April 22, 2022, with a hearing date of May 27, 2022, making
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oppositions due May 13, 2022.” Id. at 3. Plaintiffs argue that “[t]hus, this ex parte
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application is being filed ‘well in advance of the due date’ pursuant to chamber rules.’” Id.
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Fact discovery in this case closed on October 1, 2021 as to all Defendants except for
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the newly appearing Defendants Select Puppies, Inc., and Brian Mohrfeld. ECF Nos. 133,
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141. Fact discovery was reopened until February 1, 2022 for claims and defenses pertaining
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to Defendant Select Puppies, Inc. and Defendant Mohrfield only. ECF No. 141 at 2. The
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deadline for pretrial motions already passed on April 22, 2022. ECF No. 141.
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Ordinarily, Federal Rule of Civil Procedure 16(b)(4)’s good cause standard governs
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the modification of a Rule 16 scheduling order, which includes the deadline for filing
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pretrial motions. This good-cause standard comports with Federal Rule of Civil Procedure
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6(b)(1), which provides: “When an act may or must be done within a specified time, the
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court may, for good cause, extend time….” Rule 6, however, provides more specificity
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regarding the timing of a request to extend a deadline. Rule 6 provides that, if a motion to
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extend is made after a deadline has expired, the motion to extend may only be granted “if
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a party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). Thus, if a party
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wishes to seek leave to file pretrial motions after the deadline to do so has passed, the party
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must demonstrate both good cause for modifying the scheduling order, in addition to
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demonstrating excusable neglect for having missed the deadline. See e.g., Yeoman v. Ikea
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U.S.A. West, Inc., 2013 WL 3467410 at *4 (S.D. Cal. July 10, 2013) (applying Rules 6 and
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16 to motion for leave to extend discovery deadlines after deadlines passed); see also
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Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S.
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380, 395 (1993) (establishing a four-part balancing test to determine whether there has
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been “excusable neglect”).
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Here, Plaintiffs argue in an ex parte motion filed ten days after the deadline to file
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20cv527-LL-DEB
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pretrial motions that they are entitled to an open-ended deadline to file their cross-motions
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and any opposition to Defendants’ motions for summary judgment. Plaintiffs fail to support
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their Motion with an affidavit or declaration as required by the undersigned Judge’s
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Chambers Rules and Civil Local Rule 83.3(g). Having considered the parties’ submissions,
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the record in this matter, and the applicable law, the Court finds that Plaintiffs have failed
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to show excusable neglect. The Motion is therefore DENIED.
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IT IS SO ORDERED.
Dated: May 10, 2022
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20cv527-LL-DEB
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