McElroy v. Pernod Ricard USA, LLC; et al

Filing 83

ORDER Granting In Part Joint Motion and Issuing Amended Scheduling Order [Doc. No. 80 ]. Signed by Magistrate Judge Valerie E. Torres on 3/12/2025. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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APRIL MCELROY, individually,
Plaintiff,

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v.

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PERNOD RICARD USA, LLC.;
GARFIELD BEACH CVS, L.L.C.;
SOUTHERN GLAZER’S WINE AND
SPIRITS, LLC; DOES 1 through 39; and
DOES 41 through 50, inclusive,

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Case No.: 3:23-cv-02183-CAB-VET
ORDER GRANTING IN PART
JOINT MOTION AND ISSUING
AMENDED SCHEDULING ORDER
[Doc. No. 80]

Defendants.

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AND ALL RELATED CROSS
ACTIONS

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Before the Court is the parties’ Joint Motion Regarding Discovery Status and to

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Continue Pre-Trial Deadlines (“Joint Motion”). Doc. No. 80. For the reasons stated below,

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the Court GRANTS IN PART the Joint Motion and ISSUES an Amended Scheduling

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Order.

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I.

JOINT MOTION AND PROCEDURAL BACKGROUND

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On May 16, 2024, the Court issued the initial Scheduling Order Regulating

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Discovery and Other Pre-Trial Proceedings. Doc. No. 26. On November 19, 2024, the
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parties filed a joint motion, proposing to extend all deadlines by 90 days. Doc. No. 63. On

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November 22, 2024, the Court granted that motion. Doc. No. 64. On March 7, 2025, the

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parties filed the instant Joint Motion requesting another 90-day extension of all dates. Doc.

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No. 80. The parties describe the discovery efforts that have occurred to date, including

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exchanging written discovery and taking depositions. Id. at 2–3.

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II.

LEGAL STANDARD

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In determining whether to modify a scheduling order, the Court considers the “good

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cause” standard set forth in Federal Rule of Civil Procedure 16(b)(4). Fed. R. Civ. P.

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16(b)(4). Pursuant to Rule 16(b)(4), a “schedule may be modified only for good cause and

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with the judge’s consent.” Id. (emphasis added); Zivkovic v. S. Cal. Edison Co., 302 F.3d

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1080, 1087 (9th Cir. 2002). Rule 16(b)(4)’s “good cause” standard “primarily considers

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the diligence of the party seeking the amendment.” Learjet, Inc. v. Oneok, Inc. (In re W.

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States Wholesale Natural Gas Antitrust Litig.), 715 F.3d 716, 737 (9th Cir. 2013). “The

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district court may modify the pretrial schedule ‘if it cannot reasonably be met despite the

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diligence of the party seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 609 (9th Cir. 1992) (citing to Fed. R. Civ. P. 16 advisory committee’s notes on

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the 1983 amendment); see also Zivkovic, 302 F.3d at 1087; 6A Wright, Miller & Kane,

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Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990) (“good cause” means

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scheduling deadlines cannot be met despite party’s diligence). “[C]arelessness is not

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compatible with a finding of diligence and offers no reason for a grant of relief.” Johnson,

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975 F.2d at 609. The focus of the inquiry is upon the moving party’s reasons for seeking

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modification. Id. “If the moving party was not diligent, the inquiry should end.” Id.; Branch

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Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017) (same).

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Further, Civil Local Rule 16.1(b) requires that all counsel “proceed with diligence

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to take all steps necessary to bring an action to readiness for trial.” Civ.LR 16.1(b).

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Similarly, this Court’s Civil Chambers Rules require that any motion to continue a

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scheduling order deadline include a showing of good cause, supported by a “declaration

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from counsel that details steps taken by the Parties to meet current deadlines and reasons

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why the Parties can no longer meet those deadlines.” J. Torres Civ. Chambers R. VI.D.

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III.

DISCUSSION

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The basis for the parties’ request stems primarily from a need to complete fact

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discovery and resolve disputes surrounding Rule 30(b)(6) depositions and written

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discovery responses. The Court already intervened concerning dates for Rule 30(b)(6)

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depositions and previously ordered Defendant Southern Glazer to provide dates for a

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30(b)(6) deposition by January 17, 2025. See Doc. No. 68. The parties will participate in a

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second discovery conference with the Court on March 21, 2025 to address disputes raised

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by Plaintiff on March 3, 2025 and March 5, 2025. These new disputes pertain to Defendants

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Southern Glazer and Pernod Ricard and involve, among other issues, a failure to timely

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provide deposition dates for Rule 30(b)(6) witnesses.

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While it appears that good cause exists for extending current case deadlines, in part

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to accommodate the late addition of a third-party defendant, the Court is also concerned

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that much delay stems from potentially unnecessary discovery disputes, including a failure

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to timely provide deposition dates. The Court cautions the parties that delay tactics and/or

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gamesmanship will not be tolerated and every effort should be made to timely respond to

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discovery and requests for deposition dates.

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Based on a review of the Joint Motion and record, and good cause appearing, the

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Court GRANTS IN PART the Joint Motion. This extension, combined with the prior

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extension, means the parties will have had a year to conduct fact discovery. Accordingly,

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absent extraordinary circumstances, no further continuances shall be granted.

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IV.

AMENDED SCHEDULING ORDER

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The Court AMENDS the operative scheduling order (Doc. No. 64) as follows:

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1.

Counsel shall refer to the Judge Bencivengo’s Chambers Rules for Civil

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Cases, which are accessible via the Court’s website at www.casd.uscourts.gov. For ease of

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reference, Judge Bencivengo’s rules concerning the procedure for seeking permission to

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file documents under seal is attached hereto.
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2.

All fact discovery shall be completed by all parties by May 19, 2025.

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“Completed” means that all discovery under Fed. R. Civ. P. 30-36, and discovery

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subpoenas under Fed. R. Civ. P. 45, must be initiated a sufficient period of time in advance

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of the cut-off date, so that it may be completed by the cut-off date, taking into account the

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times for service, notice, and response as set forth in the Federal Rules of Civil Procedure.

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Counsel shall promptly and in good faith meet and confer regarding all discovery disputes

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in compliance 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 process. If the

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parties reach an impasse on any discovery issue, counsel shall follow the procedures

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governing discovery disputes set forth in Judge Torres’ Civil Chambers Rules. A failure

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to comply in this regard will result in a waiver of a party’s discovery issue. Absent an

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order of the Court, no stipulation continuing or altering this requirement will be

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recognized by the Court.

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3.

A Mandatory Settlement Conference (“MSC”) shall be conducted by Zoom

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video conferencing on June 10, 2025 at 9:30 a.m. before Magistrate Judge Valerie E.

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Torres.1

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a.

The following are mandatory procedures to be followed in preparation for

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the MSC. Absent express permission from this Court, counsel must timely comply with

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the dates and deadlines herein. Questions regarding the MSC or the mandatory guidelines

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set forth herein may be directed to Judge Torres’ Chambers at [phone].

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b.

Full Settlement Authority Required. Pursuant to Local Rule 16.1.c.1, all

parties, party representatives, including claims adjusters for insured parties, and the

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Counsel may request the MSC be converted to an in-person appearance through a joint
call or email to Judge Torres’ Chambers ([e-mail]). Counsel
must meet and confer prior to making such a request.
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principal attorney(s) responsible for the litigation must participate in the MSC.2 This

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appearance must be made with full and complete authority to negotiate and enter into a

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binding settlement.3 Counsel for a government entity is excused from this requirement if

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the government attorney who participates in the MSC (i) has primary responsibility for

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handling the case, and (ii) may negotiate settlement offers that the attorney is willing to

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recommend to the government official having ultimate settlement authority.

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c.

Confidential Settlement Brief. No later than seven (7) calendar days

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before the MSC, each party must lodge a Confidential Settlement Brief by email to

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[e-mail]. The Confidential Settlement Brief should not exceed ten

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(10) pages, excluding exhibits, and must be formatted according to the requirements of

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Local Rule 5.1(a). Parties attaching exhibits must attach only the relevant pages of multi-

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page exhibits and must highlight the relevant portions.

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d.

Contents of Settlement Brief. All Confidential Settlement Briefs shall

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include the content specified in the Court’s Chambers Rules, available at

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https://www.casd.uscourts.gov/Judges/torres/docs/Civil%20Chambers%20Rules.pdf.

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e.

Procedure for Zoom Videoconference. No less than two (2) business

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days prior to the MSC, the Court will email counsel of record an invitation with the Zoom

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meeting information. Participants can join the Zoom video conference by following the

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The attendance requirement includes parties that are indemnified by others. Any
deviation from this Order requires prior Court approval.

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Full authority to settle means that the individuals at the MSC are authorized to fully
explore settlement options and to agree at that time to any settlement terms acceptable
to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th
Cir. 1989). Party participants need to have “unfettered discretion and authority” to
change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481,
485-486 (D. Ariz. 2003). One of the purposes of requiring a person with complete
settlement authority to attend the conference is that the person’s view of the case may
be altered during the face-to-face conference. Id. at 486. Limited or sum certain
authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th
Cir. 2001).

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ZoomGov Meeting hyperlink or using the meeting ID and password provided. Each

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participant should plan to join the Zoom video conference at least five (5) minutes before

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the start of the MSC. Counsel is responsible for ensuring their clients can participate in the

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MSC. All participants must display the same level of professionalism and attention during

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the MSC as if they were attending in person (e.g., not be driving while speaking to the

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Court, or otherwise distracted).

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4.

The parties shall designate their respective experts in writing by June 20,

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2025. The parties must identify any person who may be used at trial to present evidence

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pursuant to Fed. R. Evid. 702, 703 or 705. This requirement is not limited to retained

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experts. The parties shall designate rebuttal experts in writing by July 7, 2025. The written

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expert designations shall include the name, address and telephone number of the expert

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and a reasonable summary of the testimony the expert is expected to provide, including

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any summary of facts and opinions required by Fed. R. Civ. P. 26(a)(2)(C). The

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designations shall also include the normal rates the expert charges for deposition and trial

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testimony.

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5.

By August 7, 2025, each party shall comply with the disclosure provisions in

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Fed. R. Civ. P. 26(a)(2)(A) and (B). This disclosure requirement applies to all persons

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retained or specially employed to provide expert testimony, or whose duties as an employee

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of the party regularly involve giving expert testimony. Except as provided in the paragraph

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below, any party that fails to make these disclosures shall not, absent substantial

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justification, be permitted to use evidence or testimony not disclosed at any hearing or at

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the time of trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ.

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P. 37(c).

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6.

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Any party shall supplement its disclosure regarding contradictory or rebuttal

evidence under Fed. R. Civ. P. 26(a)(2)(D) and 26(e) by August 21, 2025.
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All expert discovery shall be completed by all parties by September 22, 2025.

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The parties shall comply with the same procedures set forth in the paragraph governing

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fact discovery.
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8.

All pre-trial motions, other than motions to amend or join parties, or motions

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in limine, shall be filed on or before October 22, 2025. All Daubert motions shall be filed

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on or before October 22, 2025. Counsel for the moving party shall set the motion date on

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the date that is 35 days from the date the motion is filed. Parties intending to file a motion

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shall not contact Judge Bencivengo’s chambers for a hearing date. The parties should

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review Judge Bencivengo’s chambers rules for civil cases for the additional requirements

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for noticed motions before Judge Bencivengo.

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Pursuant to Local Rule 7.1.f.3.c, if an opposing party fails to file opposition

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papers in the time and manner required by Local Rule 7.1.e.2, that failure may

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constitute a consent to the granting of a motion or other request for ruling by the

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Court. Accordingly, all parties are ordered to abide by the terms of Local Rule 7.1.e.2 or

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otherwise face the prospect of any pretrial motion being granted as an unopposed motion

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pursuant to Local Rule 7.1.f.3.c.

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9.

In jury trial cases before the Honorable Cathy Ann Bencivengo, neither party

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is required to file Memoranda of Contentions of Fact and Law pursuant to Civil Local Rule

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16.1.f.2.

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10.

The parties must comply with the pre-trial disclosure requirements of Fed. R.

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Civ. P. 26(a)(3) no later than January 23, 2026. Please be advised that failure to comply

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with this section or any other discovery order of the Court may result in the sanctions

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provided for in Fed. R. Civ. P. 37, including a prohibition on the introduction of

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experts or other designated matters in evidence.

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Counsel shall confer and take the action required by Local Rule 16.1(f)(4)(a)

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on or before January 30, 2026. The parties shall meet and confer and prepare a proposed

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pretrial order containing the following:

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1.
A joint neutral statement to be read to the jury, not in excess of one
page, of the nature of the case and the claims and defenses.
2.
A list of the causes of action to be tried, referenced to the Complaint
[and Counterclaim if applicable]. For each cause of action, the order shall
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succinctly list the elements of the claim, damages and any defenses. A cause
of action in the Complaint [and/or Counterclaim] which is not listed shall be
dismissed with prejudice.

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3(a). A list of each witness counsel actually expect to call at trial with a brief
statement, not exceeding four sentences, of the substance of the witnesses’
testimony.
3(b). A list of each expert witness counsel actually expect to call at trial with
a brief statement, not exceeding four sentences, of the substance of the
witnesses’ testimony.
3(c). A list of additional witnesses, including experts, counsel do not expect
to call at this time but reserve the right to call at trial along with a brief
statement, not exceeding four sentences, of the substance of the witnesses’
testimony.
4(a). A list of all exhibits that counsel actually expect to offer at trial with a
one-sentence description of the exhibit. All exhibits are to be identified
numerically, plaintiff starting with “1” and defendant beginning with an
agreed upon numerical designation.

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4(b). A list of all other exhibits that counsel do not expect to offer at this time
but reserve the right to offer if necessary at trial with a one-sentence
description of the exhibit.
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A statement of all facts to which the parties stipulate. This statement
shall be on a separate page and will be read to and provided to the jury.
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A list of all deposition transcripts by page and line, or videotape
depositions by section, that will be offered at trial.
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Counsel will note any objections they have to any other parties’ Fed. R.
Civ. P. 26(a)(3) Pretrial Disclosures.
The Court encourages the parties to consult with the assigned magistrate judge to work out
any problems in preparation of the proposed pretrial order. The court will entertain any
questions concerning the conduct of the trial at the pretrial conference.

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12.

Counsel for the Plaintiff(s) must provide opposing counsel with the proposed

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pretrial order for review and approval and take any other action required by Local Rule

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16.1.f.6.a on or before February 6, 2026. Opposing counsel must communicate promptly

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with plaintiff’s counsel concerning any objections to form or content of the pretrial order,

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and both parties shall attempt promptly to resolve their differences, if any, concerning the

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order.

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13.

The Proposed Final Pretrial Conference Order, including objections to any

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other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures, shall be prepared, served, and

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lodged with the assigned district judge’s chambers on or before February 13, 2026, and

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shall be in the form prescribed in and comply with Local Rule 16.1(f)(6).

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Cathy Ann Bencivengo on Friday, February 20, 2026 at 2:00 p.m..

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The final Pretrial Conference is scheduled on the calendar of the Honorable

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The trial in this matter shall commence on Monday, March 23, 2026 at 8:45

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The parties must review the chambers’ rules for the assigned district judge

a.m.
and magistrate judge.
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A post-trial settlement conference before a magistrate judge may be held

within 30 days of verdict in the case.
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The dates and times set forth herein will not be modified except for good cause

shown.
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Briefs or memoranda in support of or in opposition to any pending motion

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shall not exceed twenty-five (25) pages in length without leave of a district court judge. No

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reply memorandum shall exceed ten (10) pages without leave of a district court judge.

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Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents

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and a table of authorities cited.

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20.

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case hereafter.

Plaintiff’s counsel shall serve a copy of this order on all parties that enter this

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IT IS SO ORDERED.

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Dated: March 12, 2025

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