2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANN KENNEY, Case No.: 21cv1016-JLS (MSB)

12 Plaintiff, ORDER DENYING JOINT MOTION TO 13 v. MODIFY FOURTH SCHEDULING ORDER [ECF NO. 40] 14 FRUIT OF THE EARTH, INC., et al. 15 Defendants. 16 17 18 On July 6, 2022, the parties filed a “Joint Motion to Modify Fourth Scheduling 19 Order.” (ECF No. 40.) In the joint motion, the parties explain that Defendants intend to 20 file a motion for summary judgment “that would seek dismissal of Plaintiff’s claim for 21 injunctive relief and related attorney’s fees and costs based on Defendants’ contentions 22 that, although Defendants continue to manufacture, market, and /or sell the 4.0 fluid 23 ounce size ‘Clear Zinc’ sunscreen that Plaintiff did not purchase, in approximately 24 December 2021, Defendants discontinued the sale of the 2.0 fluid ounce size “Clear 25 Zinc” sunscreen that Plaintiff purchased, therefore purportedly extinguishing Plaintiff’s 26 standing to enjoin the alleged deceptive labeling of the “Clear Zinc” labeling claim on 27 either size of the sunscreen.” (Id. at 3.) The parties agree that a ruling in Defendants’ 2 judgment motion “should not implicate expert discovery.” (Id.) 3 To prevent the parties from having to move forward with expert discovery while 4 the previously described motion is pending, the parties argue that it promotes justice 5 and fairness for the Court to amend the scheduling order. (Id. at 4.) Specifically, the 6 parties request a briefing schedule for Defendant’s contemplated motion to be filed on 7 July 21, 2022, with briefing completed by August 11, 2022. (Id. at 5.) To permit the 8 resolution of the summary judgment motion, the parties ask for the remaining discovery 9 and pretrial deadlines, including a deadline for subsequent pre-trial motions, be 10 continued by approximately five to six months. (Id. at 5-6.) 11 A scheduling order “may be modified only for good cause and with the judge’s 12 consent.” Fed. R. Civ. P. 16(b)(4). This good cause standard “primarily considers the 13 diligence of the party seeking the amendment. The district court may modify the 14 pretrial schedule ‘if it cannot reasonably be met despite the diligence of the party 15 seeking the extension.’” Johnson v. Mammoth Recreations, Inc.,

(9th 16 Cir. 1992) (citing Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment) and 17 collecting cases). “If that party was not diligent, the inquiry should end.”

18 The Court finds that the parties have not demonstrated diligence in discovering 19 the issue that Defendants now wish to base their summary judgment motion or filing 20 the contemplated motion with the Court. Nearly seven months has passed since 21 Defendants purportedly stopped making the two liquid ounce product. Furthermore, 22 the parties do not show that the existing schedule will prevent them from litigating 23 Defendants’ motion, only that they will have to comply with their expert discovery and 24 other motion filing deadlines before the Court rules on the motion. While the Court 25 recognizes that the parties would prefer not to incur the costs of expert discovery when 26 the case may not remain in federal court, the Court does not feel that it is ultimately an 27 economical use of judicial resources to essentially stay expert discovery in this case 1 || This case has already been in discovery for nearly one year, since July 19, 2021. (See ECF 2 || No. 8 (order requiring the parties to meet and confer pursuant to Federal Rule of Civil 3 || Procedure 26(f) by July 19, 2021); Fed. R. Civ. P. 26(d)(1) (“A party may not seek 4 || discovery from any source before the parties have conferred as required by Rule 26(f). . 5 ||..”) The parties’ request would allow them to litigate successive pretrial motions if 6 || Defendants’ current motion is not successful. 7 Based on the foregoing, the Court is not persuaded that there is good cause for 8 || the parties’ requested scheduling amendments, and the joint motion is therefore 9 || DENIED. 10 IT IS SO ORDERED. 11 Dated: July 7, 2022 = _ 2 FF B Honorable Michael S. Berg United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28