Ogilvie v. Thrifty PayLess Inc

Filing 45

ORDER denying parties' 44 stipulated motion for adjust the case schedule and continue certain deadlines. Signed by Judge James L. Robart. (PM)

Case 2:18-cv-00718-JLR Document 45 Filed 05/12/20 Page 1 of 5

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARJORIE OGILVIE,
Plaintiff,

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v.
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THRIFTY PAYLESS INC., et al.,

ORDER DENYING STIPULATED
MOTION TO ADJUST THE
CASE SCHEDULE AND
CONTINUE CERTAIN CASE
DEADLINES

Defendants.

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CASE NO. C18-0718JLR

Before the court is the parties’ stipulated motion to continue the deadlines for (1)

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the disclosure of expert witness testimony from May 13, 2020, to September 20, 2020,

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(2) the discovery cutoff from July 13, 2020, to August 30, 2020, and (3) the dispositive

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motions deadline and the deadline for motions challenging expert witness testimony from

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August 11, 2020, to September 30, 2020. (See 5/5/20 Stip. (Dkt. # 44).) The court denies

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the parties’ stipulated motion for the following reasons.

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This is not the first time that the parties have asked for an extension to case

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deadlines. Defendant Thrifty PayLess, Inc., removed this action to federal district court

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on May 17, 2018. (Not. of Rem. (Dkt. # 1).) On July 17, 2018, the court issued a

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scheduling order and set this matter for trial on October 15, 2019. (See Sched. Order

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(Dkt. # 17) at 1.) On March 26, 2019, the parties filed a stipulated motion for an

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extension of time to complete discovery. (3/26/19 Stip. (Dkt. # 29).) The parties asked

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for an approximate 90-day extension of the expert disclosure and discovery cutoff

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deadlines. (See id.) The court denied the parties’ request but granted an approximate

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2-week extension of the relevant deadlines. (See 3/27/19 Order (Dkt. # 30).) On June 14,

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2019, the parties again filed a stipulated motion seeking to continue the trial date to July

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14-16, 2020. (6/14/19 Stip. (Dkt. # 34).) The court denied the motion for lack of good

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cause but informed counsel that they could stipulate to have the trial date moved to the

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end of the court’s trial calendar, which at that time was in mid-to-late fall 2020. (6/25/19

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Order (Dkt. # 35).) On June 28, 2019, the parties filed another stipulated motion asking

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the court to continue their trial date to the end of the court’s trial calendar. (6/28/19 Stip.

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(Dkt. # 36).) The court granted the motion and reset the trial date for November 9, 2020.

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(6/28/19 Order (Dkt. # 38).) The court issued an amended case schedule based on the

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parties’ new November 9, 2020, trial date. (Am. Sched. (Dkt. # 40).) The parties now

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seek an approximate 90-day extension of the deadlines in the amended case schedule for

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the disclosure of expert witness testimony, the discovery cutoff, and the filing of

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dispositive motions and motions related to expert witness testimony. (See 5/5/20 Stip.)

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As the court has previously informed the parties, the court issues scheduling

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orders setting trial dates and related dates to provide a reasonable schedule for the

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resolution of disputes. (See 3/27/19 Order at 2.) First, the court generally sets the

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discovery cut-off 30 days prior to the deadline for filing dispositive motions to ensure

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that the court has before it a complete record when it considers a motion that could

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potentially dispose of the case. (See id.) Second, the schedule generally provides 90

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days between the deadline for filing dispositive motions and the trial date. (See id.) This

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90-day period takes into account: (a) an approximate 30-day lag between the date a party

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files a motion and the date that motion becomes ripe for the court’s consideration, see

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Local Rules W.D. Wash. LCR 7(d)(3); and (b) an additional 30 days during which the

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court endeavors to rule on the motion, id. at LCR 7(b)(5). (See 3/27/19 Order at 2.)

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Anything short of a 90-day period leaves inadequate time for the parties to consider the

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court’s ruling and plan for trial or an alternate resolution. (See id.) Although the court

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has previously explained these principles to the parties, they persist in seeking to reset

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case deadlines in this matter in contravention of these principles. (See 5/5/20 Stip.)

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Pursuant to Federal Rule of Civil Procedure 16(b)(4), “[a] schedule may only be

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modified for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Good

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cause” for purposes of Rule 16 focuses on the diligence of the party seeking to modify

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the pretrial scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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607-08 (9th Cir. 1992). Parties must “diligently attempt to adhere to that schedule

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throughout the subsequent course of the litigation.” Jackson v. Laureate, Inc., 186

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F.R.D. 605, 607 (E.D. Cal. 1999). In part, the “good cause” standard requires the parties

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to demonstrate that “noncompliance with a Rule 16 deadline occurred or will occur,

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notwithstanding [the parties’] diligent efforts to comply, because of the development of

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matters which could not have been reasonably foreseen or anticipated at the time of the

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Rule 16 scheduling conference . . . .” Id. at 608. Further, the court’s scheduling order

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states that the dates are “firm” and that “[t]he court will alter these dates only upon good

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cause shown.” (Sched. Order at 2.) The order clarifies that “failure to complete

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discovery within the time allowed is not recognized as good cause.” (Id.)

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The court concludes that the parties have not established good cause for an

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extension of the case deadlines. The parties assert that Defendant Assa Abloy Entrance

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Systems US Inc.’s expert cannot complete a report without the deposition of Federal Rule

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of Civil Procedure 30(b)(6) witnesses, a meeting with client representatives, and

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observing the subject door at the Rite Aid location. (5/5/20 Stip. ¶ 1.) The parties also

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state that “[g]iven the restrictions in place due to the impacts of COVID-19 the past

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several months, the parties have not yet completed all depositions in this matter.” (Id.

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¶ 3.) Although the parties assert that the pandemic impacts their ability to take

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depositions or hold meetings in person, they do not discuss why they cannot conduct such

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depositions and meetings by telephone or other remote means. (See generally id.)

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Although the court understands that the parties may have a preference for taking

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depositions or meeting in person, given the present circumstances, the court urges the

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parties to consider available alternatives. See Fed. R. Civ. P. 30(b)(4) (“The parties may

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stipulate—or the court may on motion order—that a deposition be taken by telephone or

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other remote means.”). This pandemic may well be with us for many months to come.

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We will all need to adjust to keep litigation moving forward. Unless the parties have

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explored alternative means to complete discovery, the court does not consider the mere

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existence of the pandemic as “good cause” for a delay in the case schedule. Further, at

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least part of the delay appears to have nothing to do with the impacts caused by the

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pandemic, but merely the inability of the parties to agree on scheduling. (See 5/5/20 Stip.

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¶ 2 (“The parties were unable to find a mutually acceptable date for the depositions in late

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2019/early 2020.”).) Accordingly, the court does not find that the parties have

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established “good cause” for an extension of the relevant case deadlines and DENIES the

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parties’ stipulated motion (Dkt. # 44).

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Although the court cannot grant the parties’ stipulated motion, the court is willing

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to drop this case to the end of its trial calendar once again and to issue a new case

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schedule for the deadlines at issue in the parties’ stipulated motion and all other

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unexpired deadlines based on that new trial date. If the parties would like to move their

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trial date to the end of the court’s trial calendar, they may file a stipulation to so notify

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the court. The parties should be aware that the court is presently setting trials in

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approximately the summer of 2021.

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Dated this 12th day of May, 2020.

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A

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JAMES L. ROBART
United States District Judge

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