United States District Court, C.D. California
Present: Honorable CHRISTINA A. SNYDER JUDGE
CIVIL MINUTES - GENERAL
CHAMBERS) - EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND
MODIFY SCHEDULING ORDER (Filed March 27, 2017, Dkt. 94)
Court is in receipt of plaintiff s motion to continue the
trial date and modify the scheduling order. Dkt. 94. The
Court is also in receipt of Defendant Steven Carnine's
opposition, dkt. 95, as well as the remaining defendants'
opposition, dkt. 96.
March 30, 2017, in light of plaintiff s counsel's
impending travel plans, the Court promptly reviewed the
application and oppositions and denied the motion for a
continuance of the trial. Dkt. 100. In its order, the Court
stated that a, "separate detailed ruling will
follow." Id. Herein the Court will explain its
reasons for the denial of the motion to continue trial in
16(b) of the Federal Rules of Civil Procedure provides that a
scheduling order may be modified "only for good
cause." Fed.R.Civ.P. 16(b)(4).
Rule 16(b)'s good cause standard primarily considers the
diligence of the party seeking the amendment.... Carelessness
is not compatible with a finding of diligence and offers no
reason for a grant of relief. 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.
Johnson v. Mammoth Recreations. Inc.. 975 F.2d 604,
609 (9th Cir.1992) (internal quotations and citations
omitted). "The pretrial schedule may be modified 'if
it cannot reasonably be met despite the diligence of the
party seeking the extension.'" Zivkovic v. S.
Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.2002)
(quoting Johnson. 975 F.2d at 609). "The
district court is given broad discretion in supervising the
pretrial phase of litigation, and its decisions regarding the
preclusive effect of a pretrial order . . . will not be
disturbed unless they evidence a clear abuse of
discretion." Miller v. Safeco Title Ins. Ca,
758 F.2d 364, 369 (9th Cir. 1985).
in this matter is scheduled to commence on May 9, 2017, at
9:30 a.m. Dkt. 68 ("Scheduling Order"). Pursuant to
the Scheduling Order, a pretrial conference and hearing on
motions in limine is scheduled for April 24, 2017, at 11:00
a.m. Li Motions in limine were to be noticed for April 24,
2017, and filed no later than yesterday, April 4, 2017.
Id. Defendants have collectively filed thirteen
motions in limine, see dkts. 103-110; 112-116, whereas
plaintiff appears not to have filed any. On April 3, 2017,
defendants filed witness and exhibits lists as well as
contentions of fact and law. Dkts. 118-122. On the same day,
plaintiffs filed a witness list, dkt. 124, an exhibit list,
dkt. 125, and contentions of fact and law, dkt. 123.
seeks a continuance of the trial date to July 18, 2017.
Plaintiffs counsel offers numerous reasons for seeking a
continuance. None satisfies the requirement that counsel
demonstrate good cause for a continuance.
sought to substitute counsel on March 17, 2017. Dkt. 92. On
March 21, 2017, the Court approved the substitution and
Jonathan Nielsen substituted for Rob Henning and Sam Brown as
counsel of record for plaintiff Dkt. 93. Nielsen avers that,
as of the instant application, he had yet to receive the
complete file from plaintiffs prior counsel. Apparently, as
of March 27, 2017, Nielson's file was missing
"several videotapes depositions and other documents and
evidence provided by Plaintiff to her prior Counsel."
Dkt. 94, Declaration of Jonathan Nielsen ("Nielsen
Decl.") ¶ 11.
evidently also had/has a "prepaid vacation scheduled
from March 31, 2017, through April 12, 2017 . . . which has
been scheduled for more than a year." Id.
¶ 13. Nielsen also claims to have been seeking a
mediation date with defendants, for which he was preparing.
Id. ¶ 10. On March 27, 2017, defense counsel
notified Nielsen that defendants would not agree to a
mediation on March 30, 2017. Id. At bottom,
plaintiffs ex parte application for a continuance rests upon
his contention that he is missing portions of plaintiff s
file. Plaintiffs counsel argues that he has
"no way of complying" with the Court's
deadlines without the complete file. Motion at 5. Plaintiffs
Despite requesting the entire file, Plaintiffs prior counsel
has been unjustifiably slow in delivering the entire file.
This has hindered the Plaintiffs ability to properly prepare
the pretrial documents and motions in limine. This delay
coupled with Plaintiff Counsel's upcoming vacation will
make it nearly impossible to meet and confer with Defense
Counsel to prepare the trial documents.
Id. at 6.
counsel does not purport to have an unavoidable scheduling
conflict with the trial date, the pretrial conference date,
or the date by which pretrial conference documents are
The only date for which plaintiffs counsel has an actual
conflict appears to be the date by which motions in limine
were to be filed, April 3, 2017, during which plaintiffs
counsel had vacation plans. However, counsel's travel
plans do not provide good cause for a continuance of the
motions in limine date or the trial. Plaintiffs counsel knew
or should ...