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