Miller et al v. Sawant et al

Filing 106

ORDER denying Plaintiff's 98 Motion to Continue Signed by Judge Marsha J. Pechman. (SS)

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Case 2:18-cv-00506-MJP Document 106 Filed 11/22/22 Page 1 of 5 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 13 14 15 SCOTT MILLER, MICHAEL SPAULDING, CASE NO. C18-506 MJP Plaintiffs, ORDER DENYING MOTION TO CONTINUE v. KSHAMA SAWANT, Defendant. 16 17 This matter comes before the Court on Plaintiffs’ Motion to Continue Trial and Related 18 Pretrial Deadlines. (Dkt. No. 98.) Having reviewed the Motion, Defendant’s Opposition (Dkt. 19 No. 101), the Reply (Dkt. No. 103), and all supporting materials, the Court DENIES the Motion. 20 BACKGROUND 21 Plaintiffs filed the Motion to Continue on November 3, 2022, asking the Court to 22 continue the trial date and pretrial deadlines by approximately five motions. (Dkt. No. 98.) 23 Plaintiffs cite their need to conduct further discovery as the grounds for relief. They note that 24 although they recently propounded written discovery, no documents have been exchanged and ORDER DENYING MOTION TO CONTINUE - 1 Case 2:18-cv-00506-MJP Document 106 Filed 11/22/22 Page 2 of 5 1 no depositions have been taken despite the upcoming discovery deadline of December 11, 2022. 2 (Id. at 3-4.) Defendant opposes the request, noting that Plaintiffs failed to issue any discovery 3 requests until October 27, 2022. (Opp. at 4.) 4 5 6 The Court reviews the procedural posture of this case to orient the issues presented in the Motion. The Ninth Circuit issued an opinion reversing and remanding this action on November 7 10, 2021. (Dkt. No. 72.) The mandate then issued on February 23, 2022. (Dkt. No. 75.) Two days 8 later, the Court issued a minute order asking the parties to meet and confer and file a Joint Status 9 Report providing the Court with proposed case deadlines and a trial date. (Dkt. No. 76.) The 10 parties eventually submitted a Joint Status Report on March 15, 2022, and the Court set the case 11 schedule and trial date the following day. (Dkt. Nos. 79, 80.) In relevant part, the Court ordered 12 the parties to complete discovery by December 11, 2022 and to be ready for trial on May 15, 13 2023. (Dkt. No. 80.) 14 Defendant filed a motion to dismiss the third amended complaint the same day the Court 15 issued its scheduling order. (Dkt. No. 81.) After inviting supplemental briefing on subject matter 16 jurisdiction, the Court denied the motion to dismiss on July 13, 2022. (Dkt. No. 92.) Defendant 17 then filed her answer on July 27, 2022. (Dkt. No. 93.) On August 25, 2022, Defendant filed a 18 motion for judgment on the pleadings, seeking dismissal of Plaintiffs’ federal defamation claim, 19 which left untouched Plaintiffs’ state law claims. (Dkt. No. 95.) The Court granted the motion on 20 November 21, 2022, giving Plaintiffs 14 days to amend the complaint if they wished to pursue 21 the claim. (Dkt. No. 105.) 22 23 24 ORDER DENYING MOTION TO CONTINUE - 2 Case 2:18-cv-00506-MJP Document 106 Filed 11/22/22 Page 3 of 5 ANALYSIS 1 2 Rule 16(b)(4) states that “a schedule may be modified only for good cause and with the 3 judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good cause’ standard primarily 4 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, 5 Inc., 975 F.2d 604, 609 (9th Cir. 1992). “[T]he focus of the inquiry is upon the moving party’s 6 reasons for seeking modification and “if that party was not diligent, the inquiry should end.” Id. 7 (citation omitted). 8 Plaintiffs have fallen far short of demonstrating diligence in seeking to extend the case 9 deadlines or trial date. The Court’s Scheduling Order specified that the Parties could engage in 10 discovery up until the deadline of December 11, 2022. (Dkt. No. 80 at 1.) The Order further 11 noted that “failure to complete discovery within the time allowed is not recognized as good 12 cause.” (Id. at 2.) The record before the Court shows that Plaintiffs did not lift a finger to engage 13 in discovery until they served their first discovery requests on October 27, 2022. Plaintiffs 14 identify no other discovery that they have sought or that their requests were rebuffed by 15 Defendant. The record clearly showcases a lack of diligence by Plaintiffs to engage in any 16 discovery from March 16, 2022 to October 27, 2022. This precludes the finding of good cause to 17 alter the case schedule. See Johnson, 975 F.2d at 609. 18 Plaintiffs suggest that they could not in “good conscience” engage in discovery until 19 Defendant’s answer was filed in July 2022. (Reply at 1.) But Plaintiffs cite no authority for that 20 assertion and the Court is unaware of any rule that would preclude Plaintiffs from engaging in 21 discovery until an answer is served. Rule 26(d)(1) specifies that discovery may commence once 22 the parties confer as required by Rule 26(f) or by court order. Here, the Court issued a scheduling 23 order on March 16, 2022 specifying that discovery was to be completed by December 11, 24 ORDER DENYING MOTION TO CONTINUE - 3 Case 2:18-cv-00506-MJP Document 106 Filed 11/22/22 Page 4 of 5 1 2022—a clear sign that discovery was permitted. Even if Plaintiffs were correct that they needed 2 the answer before starting discovery, they should have then started up with discovery in July. 3 Doing so would have afforded substantial time to complete discovery. Instead, they did nothing 4 until late October. This reasoning and lack of action undermine a finding of good cause. 5 Plaintiffs also misunderstand the impact that Defendant’s second motion to dismiss had 6 on discovery. (See Mot. at 5.) Plaintiffs apparently believed that their “ability to conduct 7 discovery was unilaterally limited by four and a half months” due to the motion to dismiss being 8 filed. (Mot. at 5.) But the motion was filed after the Court set the discovery deadline, which 9 opened the door to discovery and set a time limit. (Compare Dkt. No. 80 with Dkt. No. 81.) And 10 Plaintiffs identify no rule and the Court is aware of no rule that discovery—once ordered by the 11 Court—cannot be conducted if there is a pending motion to dismiss. Had Plaintiffs truly been 12 concerned about the impact of the pending motion on the running deadline for discovery, they 13 could have asked for a stay of discovery pending resolution of the motion. The Court would have 14 almost assuredly granted it. Even if it did not, Plaintiffs’ request would have shown diligence. 15 And even if the Court accepts Plaintiffs’ argument that they could not commence discovery until 16 the Court issued its order in July, they have provided no justification for failing to conduct 17 discovery until late October. This record betrays any claim of diligence. 18 Lastly, the Court rejects Plaintiffs’ suggestion that they should be excused from having 19 engaged in discovery because the case has been up on appeal twice. The procedural history of 20 this case helps explain why the Court did not issue a scheduling order until March 2022, after the 21 mandate issued. But once issued, the scheduling order clearly called for discovery to commence 22 and be completed by December 11, 2022. So whatever may have happened before the Court 23 issued the scheduling order does not serve as grounds to excuse Plaintiffs’ failure to timely 24 ORDER DENYING MOTION TO CONTINUE - 4 Case 2:18-cv-00506-MJP Document 106 Filed 11/22/22 Page 5 of 5 1 engage in discovery. “A scheduling order is not a frivolous piece of paper, idly entered, which 2 can be cavalierly disregarded by counsel without peril.” Johnson, 975 F.2d at 610 (quotation and 3 citation omitted). 4 CONCLUSION 5 The record before the Court shows no signs of Plaintiffs’ diligence in meeting the 6 existing case schedule. Plaintiffs premise the motion on the need to conduct discovery. But they 7 identify no barrier to having complied with the Court’s March 2022 Scheduling Order requiring 8 discovery to be completed on December 11, 2022. They fail to show any diligent efforts to 9 engage in discovery or to timely ask that the deadline be extended. They otherwise identify no 10 other grounds to find good cause to extend the trial date or case schedule. Given the lack of 11 diligence, the Court finds there to be no good cause to alter the trial date and case schedule. The 12 Court DENIES the Motion. 13 The clerk is ordered to provide copies of this order to all counsel. 14 Dated November 22, 2022. 15 A 16 Marsha J. Pechman United States Senior District Judge 17 18 19 20 21 22 23 24 ORDER DENYING MOTION TO CONTINUE - 5

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