November 19, 2013
STEVEN M. GARDNER, an individual, Plaintiff,
CAFEPRESS INC., a Delaware Corporation; BEVERLY TEALL, an indvidual, Defendants.
ORDER GRANTING IN PART PLAINTIFF'S EX PARTE MOTION TO CONTINUE BRIEFING SCHEDULE AND HEARING (ECF NO. 18)
GONZALO P. CURIEL, District Judge.
On November 12, 2013, Plaintiff filed an ex parte motion to continue the briefing schedule and hearing date set for defendant CafePress, Inc.'s ("CafePress") Motion for Summary Judgment. (ECF No. 18.)
CafePress's Motion for Summary Judgment is currently set for a hearing on January 17, 2014, at 1:30 p.m., with Plaintiff's response due by November 22, 2013, and CafePress's reply due by December 13, 2013. (ECF No. 16.)
Plaintiff requests the hearing on CafePress's Motion for Summary Judgment be continued to April 4, 2014, and that Plaintiff's response deadline be moved to February 7, 2014, and CafePress's reply deadline be moved February 28, 2014. Plaintiff asserts CafePress's Motion for Summary Judgment is fact intensive and therefore premature given that it was filed "before the parties were even allowed to serve discovery, before the parties' initial disclosures were due and before the discovery plan was due." More specifically, Plaintiff asserts the current summary judgment briefing schedule does not allow Plaintiff time to receive responses to written discovery before the November 22, 2013 opposition deadline.
In opposition, CafePress argues Plaintiff's request is really a request for open-ended discovery and a three-month delay. CafePress argues only a short continuance of the current summary judgment briefing schedule and hearing is required to provide Plaintiff sufficient time to take discovery relevant to opposing CafePress's Motion for Summary Judgment. CafePress states a willingness to move the response deadline to January 10, 2014, the reply deadline to January 24, 2014, and the hearing to February 7, 2014.
The Court finds that, given CafePress's filing of its Motion for Summary Judgment before the parties were permitted to take discovery, the Court finds CafePress's Motion for Summary Judgment to be premature. See Burlington N. Santa Fe R. Co. v. Assiniboine & Sioux Tribes , 323 F.3d 767, 773 (9th Cir. 2003) ("Where... a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory the case, district courts should grant any Rule 56(f) motion fairly and freely.") And while the Court recognizes CafePress's concern that Plaintiff is seeking discovery beyond the scope necessary to respond to CafePress's Motion for Summary Judgment, the Court is not now prepared-in ruling on an ex parte motion to continue a briefing schedule and hearing date-to limit discovery in any way. In any event, matters regarding the scope of discovery are more properly raised before the magistrate judge assigned to each case.
Given the foregoing, the Court finds it appropriate to continue the briefing schedule and hearing date for CafePress's Motion for Summary Judgment as follows: any response to CafePress's Motion for Summary Judgment shall be filed on or before January 24, 2014; any reply shall be filed on or before February 7, 2014; and the hearing on CafePress's Motion for Summary Judgment is CONTINUED from January 17, 2014, to February 28, 2014, at 1:30 p.m.
IT IS SO ORDERED.