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Escoto v. Foremost Superior Marble

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 1, 2009

GERARDO ESCOTO, ET AL., PLAINTIFFS,
v.
FOREMOST SUPERIOR MARBLE, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court is Plaintiffs' Motion for 6 Day Extension of Time, which this Court will view as a Motion to Amend the Pretrial Scheduling Order ("PTSO"). The parties stipulated to have this Motion heard on shortened time. For the following reasons, Plaintiffs' Motion to Extend Time is denied, and its Motion for Summary Judgment is consequently denied as untimely.*fn1

Generally, the Court is required to enter a pretrial scheduling order within 120 days of the filing of the complaint. Fed. R. Civ. P. 16(b). The scheduling order "controls the subsequent course of the action" unless modified by the Court. Fed. R. Civ. P. 16(d). Orders entered before the final pretrial conference may be modified upon a showing of "good cause," Fed. R. Civ. P. 16(b), but orders "following a final pretrial conference shall be modified only to prevent manifest injustice." Fed. R. Civ. P. 16(e); see also Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992).

Rule 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. Id. at 609. "The district court may modify the pretrial schedule 'if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Id., quoting Fed. R. Civ. P. 16 advisory committee's notes (1983 amendment). "Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Id.

Plaintiffs have not established the requisite good cause. The PTSO clearly establishes the last date by which dispositive motions must be heard and advises the parties to contact the Deputy Courtroom Clerk to obtain available hearing dates. Plaintiffs failed to inquire as to those dates and wrongly assumed that September 18 was available.

Moreover, even if September 18 had been available, Plaintiffs' filing of its Motion for Summary Judgment was untimely. To have been heard on September 18, Plaintiffs would have had to serve their Motion electronically not later than August 18. Instead, they electronically served Defendants and filed that Motion piecemeal from August 21 through August 25. Thus, no good cause having been shown, Plaintiffs' Motion for Extension of Time is denied.

CONCLUSION

Plaintiffs' Proposed Order and Motion to Shorten Time (Docket No. 46) is DENIED as moot in light of the parties' stipulation to the same (Docket No. 49), which is granted. Plaintiffs' Motion for 6 Day Extension of Time (Docket No. 36) is DENIED. Consequently, Plaintiffs' Motion for Summary Judgment (Docket No. 44) is DENIED as untimely. Hearing dates on the above are ordered vacated, but Defendants' Motion to Disqualify Counsel (Docket No. 35) will remain on calendar for hearing on September 24, 2009.

IT IS SO ORDERED.


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