Tierney v. Carrington Mortgage Services LLC et al

Filing 68

ORDER GRANTING MOTION TO CONTINUE TRIAL. Defendant Carrington's Second Motion to Continue Trial, Dkt # 61 , is GRANTED. Trial is continued until January 31, 2022. A revised scheduling order with remaining pretrial deadlines will be issued shortly. Defendants' Motion to Continue Trial Date, Dkt. # 54 , seeks the same relief and is therefore STRICKEN AS MOOT. Signed by Judge Ricardo S. Martinez.(PM)

Case 2:20-cv-01245-RSM Document 68 Filed 09/07/21 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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PATRICK LEONARD TIERNEY,
Plaintiff,

Case No. C20-1245RSM
ORDER GRANTING MOTION TO
CONTINUE TRIAL

v.
CARRINGTON MORTGAGE SERVICES,
LLC, et al.,
Defendants.

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This matter comes before the Court on Defendant Carrington Mortgage Services, LLC’s

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Motion to Continue Trial. Dkt #61. Plaintiff Patrick Leonard Tierney opposes this Motion.

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Dkt. #66. Defendant Aztec Foreclosure Corporation does not oppose. Dkt. #65.
Trial is currently set for September 27, 2021. Carrington moves to continue trial for

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“not less than ninety (90) days” due to the “unexpected unavailability” of its trial counsel,

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Lukasz I. Wozniak. Dkt. #61 at 1–2. Carrington asserts that Mr. Wozniak has been “ordered to

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appear as trial counsel for a jury trial, which is set to commence in Department 37 of the Los
Angeles Superior Court on September 28, 2021, Los Angeles Superior Court Case No.

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BC538182 entitled Vargas vs. Ocwen Loan Servicing, LLC.” Id. at 2. The Vargas trial is

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scheduled to last two weeks. Id. Mr. Wozniak is not counsel of record for Carrington and has

ORDER GRANTING MOTION TO CONTINUE TRIAL - 1

Case 2:20-cv-01245-RSM Document 68 Filed 09/07/21 Page 2 of 3

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only recently appeared as a signatory on a filing. Carrington nevertheless maintains that Mr.

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Wozniak has been involved in trial preparation since the Spring of 2021 and is actively

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involved in the preparation of this case for trial. Id.

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A scheduling order “may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). The decision to modify a scheduling order is within the
broad discretion of the district court. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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607 (9th Cir. 1992). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of

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the party seeking amendment.” Id. at 609. If a party has acted diligently yet still cannot

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reasonably meet the scheduling deadlines, the court may allow modification of the schedule.
Id. However, “if that party was not diligent, the inquiry should end” and the motion to modify

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should not be granted. Id. Local Civil Rule 16(m) states that “this rule will be strictly

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enforced” in order to “accomplish effective pretrial procedures and avoid wasting the time of

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the parties, counsel, and the court.”

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Plaintiff argues there is no evidence of Mr. Wozniak’s prior involvement in this case

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and that “Carrington already has two attorneys that it previously identified as trial counsel.”

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Dkt. #66 at 3. Plaintiff concludes “[u]nder Carrington’s reasoning, a party could obtain a last-

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minute trial continuance in any matter by simply adding an attorney to the trial team who has a

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calendar conflict with scheduled trial date.” Id.

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Unavailability of trial counsel typically constitutes good cause for continuance of trial.
The Court is concerned by the lack of evidence that Mr. Wozniak is “actively involved” in this

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matter. However, the Court is inclined to take defense counsel at their word and finds no

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reason to question Carrington’s diligence in preparing for trial. The Court notes that the trial

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date in this matter has not previously been continued, and that if the Court grants this request

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ORDER GRANTING MOTION TO CONTINUE TRIAL - 2

Case 2:20-cv-01245-RSM Document 68 Filed 09/07/21 Page 3 of 3

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any prejudice to Plaintiff is minimal given the Preliminary Injunction Order. See Dkt. #28.

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The Court will thus continue trial to a date sufficiently after the Vargas trial so as not to

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prejudice Carrington.

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Having considered the briefing from the parties and the remainder of the record, the
Court hereby finds and ORDERS:
1) Defendant Carrington’s Second Motion to Continue Trial, Dkt #61, is GRANTED.

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Trial is continued until January 31, 2022. A revised scheduling order with remaining

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pretrial deadlines will be issued shortly.

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2) Defendants’ Motion to Continue Trial Date, Dkt. #54, seeks the same relief and is
therefore STRICKEN AS MOOT.

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DATED this 7th day of September, 2021.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER GRANTING MOTION TO CONTINUE TRIAL - 3