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Davis v. Nicholson

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 1, 2007

MARK A. DAVIS, PLAINTIFF,
v.
HON. R. JAMES NICHOLSON, AS SECRETARY OF VETERAN AFFAIRS; AND DOES 1 THROUGH 100, INCLUSIVE,, DEFENDANTS.

The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court

ORDER DENYING JOINT MOTION TO MODIFY SECOND AMENDED SCHEDULING ORDER

I. INTRODUCTION

On October 30, 2007, the parties filed a Joint Motion to Modify the Second Amended Scheduling Order in the above-entitled matter. [Doc. No. 36.] For the reasons stated below the joint motion is DENIED.

II. STANDARD GOVERNING MODIFICATION OF PRETRIAL SCHEDULING ORDERS

Rule 16 of the Federal Rules of Civil Procedure provides that a scheduling order "shall not be modified except upon a showing of good cause." Fed. R. Civ. Proc. 16(b). Accordingly, when parties seek to continue deadline set by the court, they must first show good cause exists for the modification. Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). The good cause standard "primarily considers the diligence of the party seeking the amendment."

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). "If the party seeking the modification 'was not diligent, the inquiry should end' and the motion to modify should not be granted." Zivkovic, 302 F.3d at 1087.

III. DISCUSSION

Here, the parties have requested a modification of the scheduling order in order to allow them more time between the date of the mandatory settlement conference with Judge McCurine and their December 10, 2007 pre-trial conference with the Hon. Napoleon A. Jones. [Joint Motion, 2:1-3.] Presently, the parties' mandatory settlement conference is scheduled for November 28, 2007.*fn1 However, Judge McCurine has availability on his calendar to hold a mandatory settlement conference earlier than the presently scheduled date of November 28, 2007. Consequently, good cause has not been shown to reschedule the pre-trial conference and dates attendant to it when a mandatory settlement conference may be held earlier than requested by counsel. The parties' joint motion is, therefore, DENIED.

IV. CONCLUSION AND ORDER

The Court will hold a Mandatory Settlement Conference on November 6, 2007 at 2:00 p.m. in the chambers of the Honorable William McCurine, Jr., United States Magistrate Judge, 940 Front Street, Courtroom C, San Diego, California, 92101.

IT IS SO ORDERED.


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