Stewart et al v. American Homestead Mortgage, LLC et al

Filing 30

ORDER granting in part and denying in part 27 Motion to Vacate pretrial schedule. Signed by Magistrate Judge Jeremiah C. Lynch on 10/21/2014. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

RONALD STEWART and LYDIA
STEWART,

CV 14-45-M-DWM-JCL

Plaintiffs,
ORDER
vs.
AMERICAN HOMESTEAD
MORTGAGE, LLC; FLAGSTAR
BANK, FSB; SELENE FINANCE,
LP; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.;
and FIRST AMERICAN TITLE OF
MONTANA, INC., and all other
parties known or unknown thereof,
Defendants.

Before the Court is Defendant Selene Finance, LP’s motion requesting the
Court vacate the scheduling order entered in this action on June 4, 2014. Selene
represents that as of August 29, 2014, its attorney, Mark C. Sherer, is no longer
employed with the Mackoff Kellogg Law Firm. Selene states it and the Mackoff
Kelloff Law Firm are working to engage substitute counsel, but that “certain
deadlines have passed” and it needs additional time to develop its case.
The Federal Rules of Civil Procedure permit a Rule 16 scheduling order to
be modified “only for good cause[.]” Fed. R. Civ. P. 16(b)(4). This good cause
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standard “primarily considers the diligence of the party seeking the amendment.”
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (citing Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). Thus, a
scheduling order can be modified if the party requesting the modification
establishes it cannot reasonably meet, or could not have reasonably met deadlines
imposed in the schedule despite the party’s diligence. Zivkovic v. Southern
California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975
F.2d at 609).
Selene suggests in its brief that it is seeking to secure new counsel different
from the Mackoff Kellogg Law Firm. But Selene has provided no explanation as
to why it did not immediately secure counsel upon the termination of Mr. Sherer’s
employment with the Mackoff Kellogg Law Firm. Nor does Selene explain why
the Mackoff Kellogg Law Firm, as its attorney, has been unable to continue its
representation of Selene and ensure compliance with the scheduling order.
Under the circumstances, the Court will not vacate the scheduling order and
trial date. Rather, it will modify the internal deadlines to afford Selene the
opportunity to secure new counsel.
Based on the foregoing, Selene’s motion to vacate the schedule in this
matter is GRANTED in part, and DENIED in part, and the June 4, 2014
scheduling order is amended as follows:
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Deadline for Selene to appear in this
action through new counsel:

November 7, 2014

Disclosure of all parties’ Liability
Experts and Damages Experts:

November 30, 2014

Discovery Deadline:

January 30, 2015

Motions Deadline (including
motions in limine) (fully briefed):

February 27, 2015

All other provisions of the June 4, 2014 scheduling order shall remain in
effect.
DATED this 21st day of October, 2014.

Jeremiah C. Lynch
United States Magistrate Judge

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