1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAYCOM PAYROLL, LLC, Case No.: 18-cv-2638-WQH-MDD

12 Plaintiff, ORDER ON JOINT MOTION TO 13 v. AMEND THE SCHEDULING ORDER 14 NIKKI READ,

15 Defendant. [ECF No. 19] 16 17 Before the Court is the Joint Motion of the parties, filed on September 18 16, 2019, to amend the Scheduling Order. (ECF No. 19). For the reasons 19 that follow, the Joint Motion is DENIED. 20 LEGAL STANDARD 21 A scheduling order “may be modified only for good cause and with the 22 judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard 23 “primarily considers the diligence of the party seeking the amendment.” 24 Johnson v. Mammoth Recreations, Inc.,

(9th Cir. 1992). 25 RELEVANT PROCEDURAL HISTORY 26 Discovery was available to the parties following the Rule 26(f) 1 conference under Rule 26(f) occurred on February 21, 2019. (ECF Nos. 12, 2 13). The Case Management Conference took place on April 11, 2019. (ECF 3 No. 15). The operative Scheduling Order issued on April 17, 2019. (ECF No. 4 16). The Scheduling Order provided that expert disclosures were to have 5 been served no later than July 12, 2019, and rebuttal expert disclosures no 6 later than August 16, 2019. Those dates passed without action by the 7 parties. The discovery deadline is September 20, 2019, just 4 days after this 8 Joint Motion was filed. 9 The parties seek relief of all deadlines in the Scheduling Order, 10 including deadlines which have passed. 11 DISCUSSION 12 The parties recognize that they must demonstrate good cause, primarily 13 consisting of due diligence, as well as the Court’s consent, to support 14 amendment of the Scheduling Order. For good cause, the parties state that 15 scheduling issues inhibited scheduling necessary depositions – they state 16 that they have been unable to schedule the deposition of a key witness 17 employed by Paycom because she has been on maternity leave since May and 18 will not return until November – and also state that they have not been able 19 to schedule the depositions of Paycom under Rule 30(b)(6) and “crucial third- 20 party witnesses.” (ECF No. 19 at 3).1 Also in support of good cause, the 21 parties state that counsel have had incompatible schedules and that counsel 22 for Defendant currently is preparing for a month-long trial scheduled to begin 23 in early October. (Id.). 24 Discovery has been open since late February – nearly seven months. 25

26 1 The Court will refer to page numbers supplied by CM/ECF rather than original 1 || Even if the parties did not commence discovery until after the Case 9 Management Conference, discovery has been open for five months. This is 3 ||not a complex case. The Court finds that the parties have not been diligent 4 |[in pursuing discovery and finds good case lacking to amend the Scheduling 5 || Order. No good cause is provided for failing to secure the depositions of 6 || Defendant’s representative under Rule 30(b)(6) or the allegedly crucial third- 7 ||parties. That the lawyers have been unavailable to each other due to the 8 || press of other business is not good cause. Although it is good practice for the 9 ||lawyers to confer to secure dates for depositions prior to noticing them or 10 ||issuing subpoenas, the case schedule cannot be held hostage to these 11 ||discussions. Depositions can be noticed under Rule 30, and subpoenas issued 12 |}under Rule 45, without consent of the opposing party. 13 Regarding the “key witness” unavailable since May because of 14 ||maternity leave, the parties waited until four days before the close of 15 discovery to seek relief. All that is said about this witness is that she was 16 || Defendant’s supervisor and “is privy to many of the allegations contained in 17 ||the pleadings.” (ECF No. 19 at 4). Before extending the deadline for the two 18 ||to three months required just to secure the testimony of this witness, the 19 ||Court would need a more substantial showing of need and an explanation 90 || why this witness could not have been deposed in March or April. 91 CONCLUSION 99 The Joint Motion to Amend the Scheduling Order is DENIED. 93 ||Dated: September 17, 2019 . Mitel © fou Hon. Mitchell D. Dembin 25 United States Magistrate Judge 26 27