The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
(1) GRANTING IN PART APPLICATION TO EXTEND PRE-TRIAL MOTION CUT-OFF DATE AND
(2) ISSUING THIRD AMENDED SCHEDULING ORDER
On December 9, 2010, plaintiff filed an ex parte application to set a pre-trial motion cut-off date in the above-entitled matter. [Doc. No. 66.] For the reasons stated below the ex parte application is GRANTED IN PART.
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 a 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.
Here, Plaintiff has requested a modification of the second amended scheduling order in order to set a pretrial motion cut-off date. The pretrial motion cut-off date was vacated by the Court on April 21, 2010 at the joint request of the parties. [Doc. No. 44.] No further cut-off date was requested by the parties or set by the Court in response to the parties subsequent joint motions to extend the original and amended scheduling orders. The Court finds good cause exists to extend the pretrial motion cut-off date due to the unnecessary confusion created by the lack of a pretrial motion cut-off date. Moreover, diligence is not at issue as both parties have filed summary judgment motions within days of each other which are set to be heard long in advance of the May 16, 2010 pretrial conference date. Plaintiff's ex parte application is, therefore, GRANTED IN PART. Accordingly, the Court issues the following third amended scheduling order:
2. All other pretrial motions must be filed on or before January 13, 2011.
2. Counsel shall file their Memoranda of Contentions of Fact and Law and take any other action required by Local Rule 16.1 (f) (2) on or before April 25, 2011.
3. Counsel shall comply with the Pre-trial disclosure requirements of Federal Rule of Civil Procedure 26(a)(3) ...