American Pacific Mortgage Corporation et al v. Everett Financial Inc et al

Filing 89

ORDER granting Plaintiffs' 78 Motion to Extend Certain Case Deadlines. The Clerk of Court is DIRECTED to enter a new scheduling order. Signed by District Judge Tiffany M. Cartwright.(MW)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 9 AMERICAN PACIFIC MORTGAGE Case No. 2:21-cv-01088-TMC CORPORATION; ELEMENT MORTGAGE, ORDER GRANTING MOTION TO EXTEND CERTAIN CASE DEADLINES Plaintiff, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 v. EVERETT FINANCIAL INC.; LUKE WELLING; JANE/JON DOES 1-10; DOE BUSINESS/CORPORATE ENTITIES 1-10, Defendant. Before the Court is Plaintiffs American Pacific Mortgage and Element Mortgage’s (“APM”) motion to extend certain case deadlines, which seeks to continue case scheduling deadlines for expert witness disclosure/reports under FRCP 26(a)(2), rebuttal expert disclosure/reports, discovery motions, and discovery. Dkt. 78 at 2–3. On November 2, 2023, the Court entered a minute order setting out trial and pretrial deadlines, which adopted the parties’ proposal for bifurcated discovery requested in their joint status report. Dkt. 68; see Dkt. 67 at 3–4. The Court included its template scheduling order, which is generated through ECF based on the trial date and contains only a single discovery ORDER GRANTING MOTION TO EXTEND CERTAIN CASE DEADLINES - 1 1 cutoff, but clarified in the minute order that the Court was adopting the parties’ proposal and set 2 out the requested deadlines accordingly. See Dkt. 68 (“The Court grants parties’ request for two 3 phase discovery . . . .”). The Court does not believe there was inconsistency or ambiguity in this 4 order and the parties did not seek clarification. 5 A party seeking an extension of an expired filing deadline must show that they failed to 6 meet the deadline “because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Courts consider 7 four factors in determining whether a movant has made this showing: “(1) the danger of 8 prejudice to the opposing party; (2) the length of the delay and its potential impact on the 9 proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” In re 10 Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007). This inquiry is 11 discretionary. Prado v. Nielsen, 379 F. Supp. 3d 1161, 1166 (W.D. Wash. 2019) (citing Pincay v. 12 Andrews, 389 F.3d 853, 859 (9th Cir. 2004)). 13 Proceeding under the assumption that the operative deadline for fact discovery is August 14 16, 2024―and not May 15, 2024, the deadline set out in the current scheduling order, Dkt. 68― 15 APM argues that it has shown good cause―under Rule 6(b)(1)(A)―to continue the above 16 deadlines as follows: 17 • o Proposed New Deadline: August 16, 2024 18 19 • • 24 All motions related to discovery: July 17, 2024 o Proposed New Deadline: September 16, 2024 22 23 Disclosure of rebuttal expert testimony under FRCP 26(a)(2): July 17, 2024 o Proposed New Deadline: September 16, 2024 20 21 Disclosure of expert testimony under FRCP 26(a)(2): June 17, 2024 • Discovery cut-off: August 16, 2024 o Proposed New Deadline: September 16, 2024 ORDER GRANTING MOTION TO EXTEND CERTAIN CASE DEADLINES - 2 1 Dkt. 68 at 3. APM argues that significant health issues experienced by APM’s general counsel as 2 well as “ongoing transitions of counsel” justify extending the deadlines. Dkt. 78 at 3. In 3 November and December 2023, APM’s general counsel, Chuck Nugent, experienced a 4 debilitating and life-threatening medical condition. Dkt. 87 ¶ 2. As a result, he was unable to 5 return to work until March 2024 and unable to “coordinate” with APM’s counsel in this litigation 6 until April 2024. See id. ¶¶ 3, 5. He “returned to full-time work” in April 2024 “but still faced 7 health challenges and a backlog of work” upon his return. Id. ¶ 5. During this time, Attorney 8 Nugent has been the only “[a]ttorney in APM’s legal department[] and the only person at APM 9 with any legal background.” Id. ¶ 6. As a result, “[w]hen [his] health issues arose, [he] did not 10 have a competent replacement to manage this litigation internally or respond to counsel’s 11 request.” Id. And “[w]hen [his] health issues improved, [he] faced a workload that exceeded [his] 12 capacity.” Id. APM’s counsel in this case confirms that he was unable to communicate with 13 Attorney Nugent during this time. See Dkt. 86 ¶ 2. He also states that, although he knew 14 Attorney Nugent was “seriously ill,” he did not know the extent of his condition or when he 15 might return to work while he was unable to communicate with him. See id. 16 According to APM, Attorney Nugent’s condition has “significantly delayed APM’s 17 prosecution of the claims against Everett Financial/Supreme Lending and Mr. Welling and 18 severely impacted APM’s ability to participate meaningfully in discovery and other pre-trial 19 preparations.” Dkt. 78 at 3. These issues, combined with “the transition” of new counsel, has 20 “resulted in insufficient time to produce expert disclosures by the current June 17, 2024, 21 deadline.” Id. at 4. 22 Defendants respond largely by recounting prior unrelated conduct of APM and its 23 counsel that Defendants believe amount to unreasonable delays and questioning whether the 24 issues raised by APM prevented it from adequately participating in discovery. See generally ORDER GRANTING MOTION TO EXTEND CERTAIN CASE DEADLINES - 3 1 Dkt. 83. They do not specifically address the excusable neglect factors or explain how they have 2 been prejudiced. The Court finds that the delay in this case will not significantly affect the proceedings, 3 4 and APM’s evidence is sufficient to show that the reasons for delay were beyond its control and 5 that it attempted to participate in discovery despite the issues it faced. See Islamic Republic of 6 Iran v. Boeing Co., 739 F.2d 464, 465 (9th Cir. 1984) (holding, under Rule 4(a)(5) of the Federal 7 Rules of Appellate Procedure, that “[i]llness of counsel . . . may amount to extraordinary 8 circumstances when the illness is so physically and mentally disabling that counsel is unable to 9 file the appeal and is not reasonably capable of communicating to co-counsel his inability to 10 file.”). For the above reasons, APM’s motion to extend certain case deadlines is GRANTED. 11 12 Dkt. 78. The Clerk of Court is DIRECTED to enter a new scheduling order with the following 13 new deadlines: 14 • Disclosure of expert testimony under FRCP 26(a)(2): August 16, 2024 15 • Disclosure of rebuttal expert testimony under FRCP 26(a)(2): September 16, 2024 16 • All motions related to discovery: September 16, 2024 17 • Fact and expert discovery completed by: September 16, 2024 18 19 20 21 Dated this 3rd day of July, 2024. A Tiffany M. Cartwright United States District Judge 22 23 24 ORDER GRANTING MOTION TO EXTEND CERTAIN CASE DEADLINES - 4

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