Griego v. Wal-Mart Stores, Inc.

9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA JESENIA ZAMORA, individually and on Case No.: 3:20-cv-401-BAS-AHG behalf of all others similarly situated, and 13 ORDER GRANTING IN PART BRANDAN GRIEGO, JOINT MOTION TO CONTINUE Plaintiffs, EARLY NEUTRAL EVALUATION 15 CONFERENCE AND CASE v. MANAGEMENT CONFERENCE WAL-MART STORES, INC.; WALMART, INC.; WAL-MART [ECF No. 14] ASSOCIATES, INC.; SAM’S WEST, INC., and DOES 1–100, Defendants.

Before the Court is the parties’ joint motion to continue the Early Neutral Evaluation Conference (“ENE”) and Case Management Conference (“CMC”), currently scheduled for June 19, 2020. ECF No. 14.

Parties seeking to continue an ENE must demonstrate good cause. ECF No. 13 at 6–7 (“An ENE may be rescheduled only upon a showing of good cause”); Chmb.R. at 2 (stating that any request for continuance requires “[a] showing of good cause for the request”); see, e.g., FED. R. CIV. P. 6(b) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time”); FED. R. CIV. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent”).

3 “Good cause” is a non-rigorous standard that has been construed broadly across procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to amend the scheduling order and the reasons for seeking modification. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“[T]he focus of the inquiry is upon the moving party’s reasons for seeking modification. . . . If that party was not diligent, the inquiry should end.”) (internal citation omitted).

10 Here, the parties have represented to the Court that Defendant’s client representative is unavailable to attend the ENE. ECF No. 14 at 3. Therefore, the parties seek a continuance of the ENE, CMC, and related deadlines. Id. The parties identified July 10, 2020 as a mutually agreeable conference date. Id. 14 As an initial matter, the parties’ motion is deficient. First, the parties failed to provide a declaration from counsel, as required by the Court’s Chambers Rules and the Court’s May 26, 2020 Order. Chmb.R. at 2 (requiring that the joint motion for continuance include a “declaration from counsel seeking the continuance that describes the steps taken to comply with the existing deadlines, and the specific reasons why the deadlines cannot be met”); ECF No. 13 at 7 (same). The Court will take the parties at their words without the required declaration, but will not do so again.1 21 Second, the parties’ motion failed to include specific facts or any framework for a finding of diligence. The motion merely recounts that “Defendant’s client representative is unavailable to attend the ENE, which is currently scheduled for June 19, 2020.” ECF 1 “There can be no question that courts have inherent power to enforce compliance with their lawful orders . . .” Shillitani v. United States, 384 U.S. 364, 370 (1966); see CivLR 83.1 (authorizing imposition of sanctions based on a party’s failure to comply with a court order).

1 No. 14 at 3. Without more, this is simply insufficient. However, court staff reached out to the parties for more detailed reasoning for the requested continuance, and the parties responded that “[o]n May 22, 2020, prior to the receipt of the Court’s scheduling order, Walmart’s in-house counsel agreed to appear for a deposition in another matter that will take place at the same time as the scheduled ENE.” Email to Chambers (June 8, 2020).

6 This information should have been included in the required declaration.

7 Despite the joint motion’s shortcomings, upon receipt of the supplemental information, the Court finds good cause to continue the ENE and CMC. As such, the parties’ joint motion is GRANTED IN PART as follows: 10 1. The ENE, originally scheduled for June 19, 2020, is hereby RESET for July 17, 20202 at 9:30 a.m. before Magistrate Judge Allison H. Goddard.

12 2. Since the ENE has been rescheduled, each party’s ENE Statements are now due no later than July 14, 2020. These statements must conform with the requirements set forth in the Court’s original order setting ENE. See ECF No. 13 at 3.

15 3. In the event the case does not settle at the ENE, the Court will immediately thereafter hold a CMC pursuant to FED. R. CIV. P. 16(b). The Court orders the following to occur before the CMC: 18 A. The parties were previously ordered to meet and confer pursuant to 19 FED. R. CIV. P. 26(f) no later than June 2, 2020. ECF No. 13 at 3. This 20 deadline had passed3 before the parties’ filed their joint motion on The Court is cognizant that the parties jointly requested that the ENE be rescheduled to July 10, 2020. However, this date is unavailable on the Court’s calendar.

3 The Court notes the parties’ failure to comply with the Court’s Chambers Rules and the Court’s May 26, 2020 Order. Chmb.R. at 2 (requiring that the joint motion for continuance include “the original date” that they wished to continue); ECF No. 13 at 7 (same). The parties’ joint motion merely requests that the “Court continue the [ENE and CMC], and related deadlines in this matter.” ECF No. 14 at 3. It is therefore unclear whether the parties seek a continuance of deadlines that have already passed. In an abundance of caution, the 1 June 8, 2020. See ECF No. 14. However, if the parties have not already 2 met and conferred pursuant to FED. R. CIV. P. 26(f), they must do so no 3 later than June 15, 2020.

4 B. The parties must file a Joint Case Management Statement by 5 July 7, 2020. The Joint Case Management Statement must address all 6 points in the “Joint Case Management Statement Requirements for 7 Magistrate Judge Allison H. Goddard,” which can be found at: 8 https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Join 9 t%20Case%20Management%20Statement%20Rules.pdf.

10 C. Initial disclosures pursuant to Rule 26(a)(1)(A-D) must occur by 11 June 29, 2020.

12 4. In accordance with the Local Rules, the Court requires personal attendance of all parties, party representatives, including claims adjusters for insured defendants, and the primary attorney(s) responsible for the litigation. CivLR 16.1(a). However, due to the current COVID-19 public emergency,4 and upon due consideration, the Court hereby modifies the ENE to be via videoconference for all attendees. To facilitate the videoconference ENE, the Court hereby orders as follows: 18 A. The Court will use its official Zoom video conferencing account to hold 19 the ENE. If you are unfamiliar with Zoom: Zoom is available on On March 17, 2020, Chief Judge Larry A. Burns issued an Order in response to the COVID-19 public emergency (“CJO #18”) which, among other things, suspends the requirement under Civil Local Rule 16.1(a) that ENEs be conducted in person to protect public safety and prevent the spread of COVID-19. See CJO #18 at ¶ 9. CJO #18 is available on the Court website at https://www.casd.uscourts.gov/_assets/pdf/rules/Order%20of%20the%20Chief%20Judge %2018.pdf. This order was extended until mid-June by CJO # 27, which is available on the Court website at https://www.casd.uscourts.gov/_assets/pdf/rules/Order%20of%20the%20Chief%20Judge %2027.pdf.

1 computers through a download on the Zoom website 2 (https://zoom.us/meetings) or on mobile devices through the 3 installation of a free app.5 Joining a Zoom conference does not require 4 creating a Zoom account, but it does require downloading the .exe file 5 (if using a computer) or the app (if using a mobile device). Participants 6 are encouraged to create an account, install Zoom and familiarize 7 themselves with Zoom in advance of the ENE.6 There is a cost-free 8 option for creating a Zoom account.

9 B. Prior to the start of the ENE, the Court will email each participant an 10 invitation to join a Zoom video conference. Again, if possible, 11 participants are encouraged to use laptops or desktop computers for the 12 video conference, as mobile devices often offer inferior performance.

13 Participants shall join the video conference by following the ZoomGov 14 Meeting hyperlink in the invitation. Participants who do not have 15 Zoom already installed on their device when they click on the 16 ZoomGov Meeting hyperlink will be prompted to download and 17 install Zoom before proceeding. Zoom may then prompt participants 18 to enter the password included in the invitation. All participants will be 19 placed in a waiting room until the ENE begins.

20 C. Each participant should plan to join the Zoom video conference at least 21 five minutes before the start of the ENE to ensure that the conference 22 begins promptly at 9:30 a.m. The Zoom e-mail invitation may 5 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices.

27 6 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- us/categories/200101697-Getting-Started 1 indicate an earlier start time, but the ENE will begin at the Court- 2 scheduled time.

3 D. Zoom’s functionalities will allow the Court to conduct the ENE as it 4 ordinarily would conduct an in-person one. The Court will divide 5 participants into separate, confidential sessions, which Zoom calls 6 Breakout Rooms.7 In a Breakout Room, the Court will be able to 7 communicate with participants from a single party in confidence.

8 Breakout Rooms will also allow parties and counsel to communicate 9 confidentially without the Court.

10 E. No later than July 14, 2020, counsel for each party shall send an e-mail 11 to the Court at [email protected] containing the 12 following: 13 i. The name and title of each participant, including all parties 14 and party representatives with full settlement authority, claims 15 adjusters for insured defendants, and the primary attorney(s) 16 responsible for the litigation; 17 ii. An e-mail address for each participant to receive the Zoom 18 video conference invitation; and 19 iii. A telephone number where each participant may be reached 20 so that if technical difficulties arise, the Court will be in a 21 position to proceed telephonically instead of by video 22 conference. (If counsel prefers to have all participants of their 23 party on a single conference call, counsel may provide a 24 conference number and appropriate call-in information, 25 including an access code, where all counsel and parties or party For more information on what to expect when participating in a Zoom Breakout 1 representatives for that side may be reached as an alternative to 2 providing individual telephone numbers for each participant.)

3 iv. Acell phone number for that party’s preferred point of 4 contact (and the name of the individual whose cell phone it is) 5 for the Court to use during the ENE to alert counsel via text 6 message that the Court will soon return to that party’s Breakout 7 Room, to avoid any unexpected interruptions of confidential 8 discussions.

9 F. All participants shall display the same level of professionalism during 10 the ENE and be prepared to devote their full attention to the ENE as if 11 they were attending in person, i.e., cannot be driving while speaking to 12 the Court. Because Zoom may quickly deplete the battery of a 13 participant’s device, each participant should ensure that their device is 14 plugged in or that a charging cable is readily available during the video 15 conference.

16 5. All procedures and requirements set forth in the Court’s Order Setting ENE || (ECF No. 13) remain in place, except as explicitly modified by this order.

19 IT IS SO ORDERED.

20 || Dated: June 9, 2020 _ArwioonH. Kovolar Honorable Allison H. Goddard 22 United States Magistrate Judge