United States District Court, S.D. California
SHYRIAA HENDERSON, on behalf of herself, and all others similarly situated, Plaintiff,
UNITED STUDENT AID FUNDS, INC., D/B/A/USA FUNDS, Defendant.
ORDER: (1) DENYING AS MOOT PLAINTIFF'S EX PARTE MOTION TO CONTINUE THE DATE FOR FILING HER CLASS CERTIFICATION MOTION [ECF No. 29]; (2) GRANTING PLAINTIFF'S EX PARTE MOTION TO MODIFY THE SCHEDULING ORDER [ECF No. 30]; (3) MODIFYING THE CASE MANAGEMENT ORDER; (4) DENYING AS PREMATURE PLAINTIFF'S MOTION FOR CLASS CERTIFICATION [ECF No. 35]; AND (5) DENYING AS MOOT PLAINTIFF'S MOTION TO FILE DOCUMENTS UNDER SEAL [ECF No. 33].
BARBARA L. MAJOR, Magistrate Judge.
On August 20, 2014, Plaintiff filed an ex parte motion to continue the class certification deadline. ECF No. 29. On August 21, 2014, Plaintiff filed a second ex parte motion asking the Court to amend the scheduling order. ECF No. 30. Plaintiff did not contact the Court prior to filing the ex parte motions, as required by the Court's Chamber's Rules. On August 21, 2014, defense counsel advised the Court that Defendant intended to oppose Plaintiff's motions. On the same day, the Court issued an expedited briefing schedule for the pending motions. ECF No. 31. After Plaintiff's counsel contacted the Court to inquire whether the pending motions "tolled" the existing deadlines, the Court conducted a telephonic conference with the parties on August 22, 2014, and issued an order denying Plaintiff's verbal request to "toll" the current deadlines pending a ruling on the ex parte motions. ECF No. 32. On August 22, 2014, Plaintiff filed her motion for class certification. ECF No. 35.
In accordance with the Court's August 21, 2014 order setting briefing schedule, on August 25, 2014, Defendant filed an opposition to Plaintiff's ex parte applications to continue the deadline for filling motions for class certification and for modification of the scheduling order. See ECF Nos. 31, 36. On August 29, 2014, Plaintiff replied to Defendant's opposition to Plaintiff's ex parte motions. ECF No. 38. Having considered all of the briefing and supporting documents presented, and for the reasons set forth below, Plaintiff's ex parte motion to continue the date for the motion for class certification is DENIED as moot, and Plaintiff's ex parte motion to modify the scheduling order is GRANTED.
On August 8, 2013, Plaintiff filed a class cation complaint alleging that Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq., by invading Plaintiff's privacy. ECF No. 1 at 1-2. Plaintiff alleges that beginning in 2009 through June 2013, she received unsolicited phone calls to her wireless phone attempting to collect a debt. Id . at 4. Plaintiff claims that she did not provide prior express consent to be contacted on her cellular telephone by Defendant or its agents, and alleges that they obtained her cell phone number from a third party by "trapping" such number. Id . Plaintiff further alleges that the phone calls were placed to her cellular telephone "via an automatic telephone dialing system, ' (ATDS') as defined by the 47 U.S.C. § 227 (a)(1) and by using an artificial or prerecorded voice' system as prohibited by 47 U.S.C. § 227 (b)(1)(A), which had the capacity to produce or store numbers randomly or sequentially, and to dial such numbers, to place telephone calls to Plaintiff's cellular telephone." Id . at 4-5; see also id. at 8-9. Plaintiff brought the class action on behalf of herself and all others similarly situated who received phone calls from Defendant or its agents to their wireless telephones without consent. See id. at 5-8.
On December 20, 2013, the Court issued a Case Management Order ("CMC Order") setting February 14, 2014, as the deadline to amend the pleadings and requiring Plaintiff to file her motion for class certification by June 20, 2014. ECF No. 22 at 1. On January 27, 2014, Plaintiff served Defendant with her First Set of Requests for Production of Documents and First Set of Interrogatories, and on March 28, 2014, Defendant responded to Plaintiff's discovery requests. ECF No. 29-1, Exhs. A-B; see also ECF No. 29-1, Declaration of Alexis M. Wood ("Wood Decl. I") at 2-3; ECF No. 30-1, Declaration of Alexis M. Wood ("Wood Decl. II") at 2. On June 10, 2014, the parties moved the Court to continue the class certification motion deadline and the Mandatory Settlement Conference date by sixty days. ECF No. 27 at 2. The Court granted the parties' motion, extended the filing deadline for Plaintiff's motion for class certification until August 22, 2014, and extended all remaining dates in its CMC Order. ECF No. 28.
Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only "for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4); see also ECF No. 22 at 7 (stating that the dates set forth in the CMC Order regulating discovery and other pretrial proceedings "will not be modified except for good cause shown"). The Rule 16 good cause standard focuses on the "reasonable diligence" of the moving party. Noyes v. Kelly Servs. , 488 F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman v. Quaker Oats Co. , 232 F.3d 1271, 1294-95 (9th Cir. 2000) (stating Rule 16(b) scheduling order may be modified for "good cause" based primarily on diligence of moving party). Essentially, "the focus of the inquiry is upon the moving party's reasons for seeking modification." Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604, 609 (9th Cir. 1992). However, a court also may consider the "existence or degree of prejudice to the party opposing the modification...." Id.
In addition to being required to establish good cause, a party moving to amend a pleading after a scheduling order deadline has passed must demonstrate excusable neglect. Mireles v. Paragon Sys., Inc., 2014 WL 575713, at *2 (S.D. Cal. Feb. 11, 2014) (citing Weil v. Carecore Nat'l, LLC , 2011 WL 1938196, at *2 (D. Colo. May 19, 2011)); see also 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."). The following factors are considered in determining whether there has been excusable neglect: the danger of prejudice to the non-moving party; the length of the delay and its potential impact on judicial proceedings; the reason for the delay, including whether it was within the reasonable control of the movant; and whether the moving party's conduct was in good faith. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship , 507 U.S. 380, 395 (1993).
A. Plaintiff's Ex Parte Motion to Continue the Date for Filing her Class Certification Motion
After filing an ex parte motion requesting the continuance of the class certification motion deadline on August 20, 2014, and participating in a telephonic conference with the Court and the opposing counsel on August 21, 2014, Plaintiff filed her motion for class certification. ECF No. 35. Accordingly, the Court DENIES Plaintiff's ...