2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HECTOR FERNANDEZ, individually Case No.: 21-CV-841-BEN-WVG and on behalf of all others similarly 12 situated, ORDER ON JOINT MOTION TO 13 AMEND SCHEDULING ORDER Plaintiff, 14 v. 15 PROGRESSIVE MANAGEMENT 16 SYSTEMS, INC., et al., 17 Defendants. 18 19 20 Before the Court is the Parties Joint Motion to Amend Scheduling Order (“Joint 21 Motion”). (Doc. No. 66.) The Parties move the Court for 90-day continuances of all dates 22 set forth in the operative January 25, 2023, Scheduling Order Regulating Discovery and 23 Other Pre-Trial Proceedings (“Scheduling Order”). The Parties argue the Scheduling Order 24 should be modified to accommodate a short-staffing issue and a breakdown in 25 communication amongst Plaintiff’s counsel, both of which have purportedly hampered 26 Plaintiff’s ability to litigate this case. Having reviewed and considered the entirety of the 27 Parties’ submissions, the Court DENIES the Joint Motion without prejudice. The Court 28 explains below. 2 (“CMC”) pursuant to the Court’s November 21, 2022, Order. (Doc. No. 55.) Following the 3 CMC, the Court issued the operative Scheduling Order, which set a June 30, 2023, deadline 4 to file a motion for class certification and an August 28, 2023, fact discovery cut-off, 5 amongst other dates. (Doc. No. 63.) Since the Scheduling Order’s issuance on January 25, 6 2023, Plaintiff filed two Motions to Withdraw as Attorney, which are now pending before 7 presiding District Judge Roger T. Benitez. (Doc. Nos. 64, 65.) The instant Joint Motion 8 explains the “sudden change in representation and significant reduction in staffing of the 9 case” has obstructed Plaintiff’s ability to meet existing deadlines. (Doc. No. 66, 2:13-17.) 10 The Joint Motion adds that the two firms seeking to withdraw as Plaintiff’s counsel here 11 were conducting settlement discussions with Defendant that were unbeknownst to 12 Plaintiff’s ongoing counsel, the law firm of Schonbrun Seplow Harris Hoffman & Zeldes, 13 LLP (“SSHHZ”). (Id.) SSHHZ contends these purportedly clandestine settlement 14 discussions “paused the litigation for a period of time,” and further stalled SSHHZ’s 15 “ability to move for certification on the current schedule.” (Id., 2:15-17.) 16 To dispel any misconceptions, the Court – not the Parties – decides whether to 17 continue or stay any proceedings in this litigation. Fed. R. Civ. P. 16(b)(4) (“A schedule 18 may be modified only for good cause and with the judge's consent.”). There was no Court- 19 endorsed continuance or stay of any proceedings in this Action. Certainly, none would have 20 issued for the reasons supplied in the Parties’ Joint Motion. Plaintiff’s short-staffing 21 dilemma and the purported breakdown in communication amongst his attorneys are 22 inadequate bases to support a finding of good cause here. As to the former, none of 23 Plaintiff’s attorneys may withdraw from this case absent an order from District Judge 24 Benitez. Given that District Judge Benitez has not yet resolved Plaintiff’s two pending 25 Motions to Withdraw as Attorney, there should be no short staffing issue at present. 26 Moreover, as a fundamental matter, Rule 16(b) of the Federal Rules of Civil 27 Procedure (“Rule 16(b”) makes clear that good cause hinges upon the Parties’ threshold 28 showing of their diligence to meet existing deadlines. United States for use & benefit of Chen v. K.O.O. Constr., Inc.,

, 1056 (S.D. Cal. May 8, 2020) (citing 1 || Johnson vy. Mammoth Recreations, Inc.,

(9th Cir. 1992) for proposition 2 || that, if the moving party fails to demonstrate diligence, the court’s inquiry into modifying 3 scheduling order should end.). No diligence has been shown in this case. The Joint 4 || Motion indicates that, following the Early Neutral Evaluation Conference (“ENE”), the 5 Parties continued their settlement discussions and informally exchanged “additional 6 || information.” (/d., 2:20-23.) Without more, the Parties fail to clear the diligence bar Rule 7 || 16(b) imposes. The Court takes the Joint Motion’s silence as to propounded written 8 || discovery, the noticing and taking of depositions, the service of subpoenas, and other like 9 || discovery tools as a failure to undertake discovery with alacrity. The Court will not reward 10 sluggish response to the Scheduling Order by granting continuances of any length. 11 Separately, and as noted, it is glaring that the Parties unilaterally decided their 12 ||informal settlement discussions would stay their ongoing obligations to meet the operative 13 ||}deadlines. To that end, the Court finds dubious SSHHZ’s representation that it knew 14 |/nothing of its co-counsel’s settlement discussions with Defendants because, in the same 15 || breath, SSHHZ argues those discussions paused the litigation. In other words, it defies 16 ||comprehension how SSHHZ could not have known about its colleagues purported 17 settlement discussions with opposing counsel while concurrently acknowledging SSHHZ 18 || was aware that litigation had “stalled.” (Doc. No. 66, 2:15-17.) Plaintiff cannot have it both 19 || ways. As explained, the Parties cannot opt out of the Scheduling Order’s directives and are 20 || bound by all dates and deadlines set by this Court. Accordingly, the Parties’ Joint Motion 21 |}is DENIED without prejudice. Should the Parties seek to renew their instant request, they 22 (1) account for all tasks accomplished to date in an effort to meet the existing 23 || deadlines, (2) explain what obstacles currently exist to impede those efforts, and (3) itemize 24 |/all actions the Parties have undertaken to overcome such obstacles. Absent such a showing, 25 ||consistent with Rule 16(b), the Court will not modify the dates set forth in the operative 26 || Scheduling Order. 27 IT IS SO ORDERED. 28 || DATED: March 31, 2023 | \ | Se Hon. William V. Gallo United States Magistrate Judge