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Mendoza v. General Motors LLC

United States District Court, E.D. California

November 20, 2017

MIRIAM MICHELLE MENDOZA, Plaintiff,
v.
GENERAL MOTORS LLC, et al., Defendants.

          ORDER DENYING DEFENDANT'S APPLICATION FOR AN ORDER SHORTENING TIME FOR THE MOTION TO MODIFY THE COURT'S SCHEDULING ORDER (DOC. 35). ORDER SETTING DEFENDANT'S MOTION FOR HEARING ON DECEMBER 11, 2017.

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         General Motors LLC has filed an ex parte application to shorten time to hear its motion to modify the Court's Scheduling Order related to the disclosure of expert witnesses. (Doc. 35) For the reasons set forth below, Defendant's motion is DENIED.

          I. Relevant Background

         The Court entered its Scheduling Order in this action on October 7, 2016. (Doc. 12) At that time, Plaintiff was ordered to “disclose all expert witnesses in writing on or before September 1, 2017, and to disclose all rebuttal experts on or before October 30, 2017.” (Doc. 12 at 3, emphasis omitted) In addition, Defendant was ordered to “disclose all expert witnesses in writing on or before October 2, 2017.” (Id.) The Court further ordered that all non-expert discovery was to be completed no later than December 8, 2017. (Id.)

         In a Joint Status Report regarding discovery dated July 3, 3017, the parties informed the Court that the bulk of their discovery would be completed by the beginning of August and they did “not currently anticipate any impediments to [completing] discovery.” (Doc. 23 at 2) The following month, however, the parties requested modification of the schedule, reporting they would be unable to timely complete non-expert and expert discovery within the timeframes previously ordered. (Doc. 25)

         On August 15, 2017, the Court granted the joint motion to amend the case schedule in part, ordering the parties to complete all non-expert discovery no later than October 30, 2017, and expert discovery no later than January 19, 2018. (Doc. 26 at 2) Further, the Court ordered: “The plaintiff SHALL disclose her experts no later than November 3, 2017 and the defendant SHALL disclose its experts no later than November 29, 2017. Plaintiff may disclose rebuttal experts no later than December 22, 2017.” (Id., emphasis in original)

         On November 9, 2017, Defendant General Motors LLC filed an ex parte application to shorten time to hear its motion to modify the Court's Scheduling Order related to the disclosure of expert witnesses. (Doc. 35 at 1) Because Defendant failed to comply with Local Rule 144(e), the Court ordered Plaintiff to file a response to the motion. (Doc. 39) Plaintiff filed her opposition to the motion November 15, 2017 (Doc. 41), to which Defendant filed a response on the same date. (Doc. 42)

         II. Local Rule 144

         Local Rule 144 governs ex parte applications for orders shortening time. In relevant part, the Rule provides:

         Applications to shorten time shall set forth by affidavit of counsel the circumstances claimed to justify the issuance of an order shortening time. Ex parte applications to shorten time will not be granted except upon affidavit of counsel showing a satisfactory explanation of the need for the issuance of such an order and for the failure of counsel to obtain a stipulation for the issuance of such an order from other counsel or parties in the action. Stipulations for the issuance of an order shortening time require the approval of the Judge or Magistrate Judge on whose calendar the matter is to be heard before such stipulations are given effect. Any proposed order shortening time shall include blanks for the Court to designate a time and date for the hearing and for the filing of any response to the motion.

         Local Rule 144(e).

         Orders shortening time are “reserved for the rare occasion where other options are unavailable.” Lema v. City of Modesto, 2012 U.S. Dist. LEXIS 29699 at *3 (E.D. Cal. Mar. 6, 2012). Although Local Rule 144 “does not state what ‘circumstances' justify the order or what a ‘satisfactory explanation' is, but courts generally require that the applicant demonstrate circumstances showing that (1) the applicant is not the cause of its own predicament, and (2) the order is ‘needed' to avoid some type of harm.” Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 2007 U.S. Dist. LEXIS 85849 at *2 (E.D. Cal. Nov. 8, 2007) (citing, e.g., In re Intermagnetics Am., Inc., 101 B.R. 191, 193 (C.D. Cal. 1989) (holding that ex parte “applications are not intended to save the day for parties who have failed to present requests when they should have”). As the Central District stated, the moving party “must show… [its] cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures.” Mission Power Engineering Co. v. Continental Casualty Co., 883 F.Supp. 488, 492 (C.D. Cal. 1995).

         III. Discussion

         Defendant asserts an order shortening time is necessary, because “[u]nder the present order, GM LLC is required to disclose its experts' opinions on November 29, 2017, ” and “GM LLC will not be able to comply with that deadline.” (Doc. 36 at 1) Specifically, Defendant asserts it plans to depose Plaintiff's experts, and “will not be able to complete the depositions of plaintiff's liability experts until November 21, 2017, just 8 days (including the Thanksgiving holiday weekend) before GM LLC's expert disclosure is due.” (Doc. 35 at 11) Further, Defendant asserts it “has not ...


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