United States District Court, S.D. California
CRUZ MIRELES, WALTER BULLOCK, ALFONSO DOMINGUEZ, JEFFREY EASLEY, GREGORY ESCOBEDO, BARRY FELDMAN, MANNY GARCIA, ANTHONY JENKINS, MARTIZA LADRON, JAMES BENNETT, ROBERT NOWSEILSKI, GUSTAVO RIVERA, VERNON TENNIS, on behalf of themselves and all others similarly situated, Plaintiff,
PARAGON SYSTEMS, INC., a California Corporation; DOES 1 thru 50, inclusive, Defendant.
ORDER GRANTING EX PARTE MOTION TO MODIFY THE SCHEDULING ORDER [ECF No. 77.]
BERNARD G. SKOMAL, Magistrate Judge.
On December 17, 2013, counsel for both parties contacted the Court per this Court's Chambers' Rules regarding a scheduling dispute. Plaintiffs request a modification of the current scheduling order to extend the deadline for filing a motion to amend the operative First Amended Complaint in this action ("FAC"). The deadline set forth in the current scheduling order for filing a motion to amend was May 13, 2013. Nevertheless, during the joint call with the Court in December, Plaintiffs stated new information about Defendant's policy requiring employees to take their firearms home was elicited in discovery. According to the parties, the document setting forth this policy was produced on July 15, 2013, and deposition testimony regarding the policy was taken in September of 2013.
Plaintiffs filed their motion to modify the scheduling order to file a Second Amended Complaint on December 23, 2013. [ECF No. 77.] Defendant argues good cause does not exist to modify the scheduling order because Plaintiff was not diligent in seeking modification. Defendant filed its opposition brief on December 27, 2013. [ECF No. 78.]
II. FACTUAL BACKGROUND
On April 12, 2013, the Court held a Case Management Conference ("CMC"). A joint discovery plan was lodged with the chambers of Judge Skomal on April 15, 2013, and on April 16, 2013, the Court issued a scheduling order following the CMC setting a deadline of May 13, 2013 by which to file a motion to join other parties or amend the pleadings. [ECF No. 17 at 1.]
On July 15, 2013, Defendant Paragon produced a document entitled "Paragon Systems, Firearms Issue/Transport Policy". On July 17, 2013, the parties filed a joint motion to continue the class certification filing deadlines listed in the Court's April 16, 2013 Order. [ECF No. 47.] On July 24, 2013, the Court granted the joint motion continuing the motion for filing a class certification motion to October 21, 2013. [ECF No.48.]
On September 10, 2013, Defendant's 30(b)(6) witness, Daniel Sims, was deposed. Plaintiff's counsel questioned Mr. Sims about the "Paragon Systems, Firearms Issue/Transport Policy" document and whether Paragon pays employees for time spent commuting.
On October 16, 2013, following a teleconference with the chambers of Judge Skomal, the Court granted a short continuance of the class certification filing deadline. On October 16, 2013, counsel for the parties also discussed (among themselves) Plaintiffs' desire to file an amended complaint to include a new claim seeking compensation for employee commute time.
On November 5, 2013, during a joint teleconference with Judge Skomal's chambers to discuss a further continuance of the class certification filing deadline, Plaintiffs' counsel raised the issue of filing an amended complaint. While opposing counsel indicated Defendant would be willing to agree to the filing of an amended complaint to dismiss three named plaintiffs and add Michael Corner as a named plaintiff, it refused to stipulate to a substantive amendment adding a new cause of action. The parties were informed thereafter that Judge Skomal would not continue the deadline for filing the class certification motion for a second time on the grounds that Plaintiffs would seek to amend the First Amended Complaint. Plaintiff filed their motion for class certification on November 11, 2013. [ECF No. 66.] The instant motion to modify the Court's scheduling order under Rule 16 of the Federal Rules of Civil Procedure was filed on December 23, 2013. [ECF No. 77.]
III. STANDARD OF REVIEW: Modification of Scheduling Order
In general, the dates and times set in the scheduling order will not be modified except for good cause shown. See Fed.R.Civ.P. 16(b)(4) (stating "A schedule may be modified only for good cause and with the judge's consent."). "When the proposed modification is an amendment to the pleadings, the moving party may establish good cause by showing (1) that [it] was diligent in assisting the court in creating a workable Rule 16 order; (2) that noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that [it] was diligent in seeking amendment of the Rule 16 order, once it became apparent that [it] could not comply with the order.' " Hood v. Hartford Life and Accident Ins. Co., 567 F.Supp.2d 1221, 1225-26 (citing Jackson v. Laureate, Inc., 187 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted)).
In addition, when any motion to extend time is made after time has expired, Rule 6 requires the parties to address excusable neglect. See Fed.R.Civ.P. 6(b)(1)(B) (stating "the court may, for good cause, extend the time on motion made after the time has expired if the party failed to act because of excusable neglect.") Nevertheless, "[a]n attorney's excusable neglect does not constitute, for the purposes of Rule 16(b)'s requirements, good cause shown." Arnold v. Kruse, 232 F.R.D. 58, 65 (W.D. N.Y. 2004) (citing Carnite v. Granada Hospital Group, Inc., 175 F.R.D. 439, 447 (W.D.N.Y. 1997). Accordingly, "a party moving to amend a pleading after a scheduling order deadline has passed must support the motion by demonstrating both excusable neglect and good cause." See Weil v. Carecore Nat'l, LLC, 2011 WL 1938196, at *2 (D. Colo. May 19, 2011). In Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court established a four-part balancing test for determining whether there has been excusable neglect. The four factors are: (1) the danger of prejudice to the non-moving party; (2) the length of the delay and its potential impact on judicial ...