1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ORKIDEH DAROODI, et al., Case No.: 23-cv-01490-RBM-JLB

13 Plaintiffs, ORDER DENYING PLAINTIFFS’ EX 14 v. PARTE MOTION TO COMPEL DEFENDANTS TO PARTICIPATE 15 BARRY D. KITAEN, et al., IN RULE 26 CONFERENCE 16 Defendants. [ECF No. 7] 17

18 Before the Court is Plaintiffs’ ex parte motion to compel Defendants to participate 19 in a Rule 26(f) conference. For the reasons stated below, the Plaintiffs’ motion (ECF No. 7) 20 is DENIED without prejudice. 21 I. BACKGROUND 22 On August 14, 2023, Plaintiffs Orkideh Daroodi, Ali Shahrokhi for minor child 23 B.E.S., and Parvin Afsharpour (collectively, “Plaintiffs”) filed a complaint against 24 Defendants Barry D. Kitaen and the Barry David Kitaen and Mona Shahroki 2000 Trust 25 (collectively, “Defendants”), alleging myriad state law claims. (ECF No. 1.) On 26 September 8, 2023, Defendants filed a motion to dismiss for lack of subject matter 27 jurisdiction. (ECF No. 3.) On September 12, 2023, Plaintiffs filed a first amended 28 complaint alleging an additional cause of action and removing Parvin Afsharpour as a 1 plaintiff. (ECF No. 6.) That same day, Plaintiffs filed the instant ex parte motion to 2 compel. (ECF No. 7.) 3 II. LEGAL STANDARD 4 Under Rule 26 of the Federal Rules of Civil Procedure1, “[e]xcept in a proceeding 5 exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders 6 otherwise, the parties must confer as soon as practicable—and in any event at least 21 days 7 before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).” 8 Fed. R. Civ. P. 26(f)(1). Under Rule 16, the court “must issue the scheduling order as soon 9 as practicable, but unless the judge finds good cause for delay, the judge must issue it 10 within the earlier of 90 days after any defendant has been served with the complaint or 60 11 days after any defendant has appeared.” Fed. R. Civ. P. 16(b)(2). 12 However, in this district, “[t]he timing of the Federal Rule 16(b) scheduling order is 13 adjusted to accommodate the Early Neutral Evaluation Conference, as allowed under Fed. 14 R. Civ P. 1.” CivLR 16.1(a)(1); see also Fed. R. Civ. P. 1 (“The[se] [rules] should be 15 construed, administered, and employed by the court and the parties to secure the just, 16 speedy, and inexpensive determination of every action and proceeding.”). Specifically, the 17 assigned judge must hold a case management conference (“CMC”) within thirty days of an 18 early neutral evaluation conference2 (“ENE”) but the CMC may be held at the conclusion 19 of the ENE. CivLR 16.1(c)(2)(b). It is only following the CMC that the judge must issue 20 a scheduling order. CivLR 16.1(d)(2). 21 The Local Civil Rules also allow parties to seek an ENE, CMC, or discovery prior 22 to the filing of an answer. CivLR 16(c)(1). “Upon receiving such request, the judge will 23 examine the circumstances of the case and the reasons for the request and determine 24 25 26 1 All references to Rule or Rules are to the Federal Rules of Civil Procedure unless 27 otherwise stated. 2 The ENE itself must be held within 45 days of the filing of an answer. CivLR 28 1 whether any such conference would assist in the reduction of expense and delay in the 2 case.” Id. “The judge will hold such conferences as he or she deems appropriate.” Id. 3 III ANALYSIS 4 Plaintiffs argue that the Court should compel Defendants’ participation in a Rule 5 26(f) conference because the Rules require the Court to issue a schedule no later than 6 November 20, 2023—90 days after service of the complaint—and the parties to participate 7 in the Rule 26(f) conference no later than October 31, 2023—21 days prior to the 8 November 20, 2023, deadline.3 (ECF No. 7 at 5–6.) Plaintiffs allege they contacted 9 Defendants’ counsel twice to set up a Rule 26(f) conference, but Defendants’ counsel never 10 responded. (Id. at 3.) Plaintiffs note that Defendants’ refusal to engage in a Rule 26(f) 11 conference has “improperly imposed a stay on this litigation and precluded Plaintiffs from 12 moving forward with discovery and the prosecution of this matter . . . .” (Id. at 5.) 13 Although not a motion seeking expedited discovery pursuant to Rule 26(d)4, 14 Plaintiffs’ instant motion seeks to compel Defendants’ participation in a Rule 26(f) 15 conference, so that ostensibly Plaintiffs may then seek to require Defendants to make initial 16 disclosures pursuant to Rule 26(a)5. Thus, Plaintiffs would be able to obtain discovery in 17 18

19 3 The Court notes that November 20, 2023, is 90 days from service of the complaint, 20 which occurred on August 22, 2023. (See ECF No. 4.) However, 21 days prior would be 21 October 30, 2023. 4 “A party may not seek discovery from any source before the parties have conferred 22 as required by Rule 26(f), except in a proceeding exempted from initial disclosure under 23 Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). 24 5 In general, “[a] party must make the initial disclosures at or within 14 days after the 25 parties’ Rule 26(f) conference.” Fed. R. Civ. P. 26(a)(1)(C). Requests to conduct discovery prior to a Rule 26(f) conference are granted upon a showing of good cause by 26 the moving party, which may be found “where the need for expedited discovery, in 27 consideration of the administration of justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc.,

, 275–76 (N.D. Cal. 28 1 || advance of the pleadings being settled without having to show good cause as required under 2 || Rule 26(d). 3 Beyond citing the Rules, Plaintiffs do not identify any circumstances in this case that 4 || warrant holding the CMC or otherwise ordering Defendants to participate in the Rule 26(f) 5 ||conference earlier than is contemplated by the Local Civil Rules. Contrary to Plaintiffs’ 6 || assertions, such an order would not reduce the expense or delay in the case. In fact, until 7 ||the pending motion to dismiss is resolved, the Court’s subject matter jurisdiction over this 8 ||case remains undetermined. 9 ||IV. CONCLUSION 10 For the reasons set forth above, the Plaintiffs’ motion (ECF No. 7) is DENIED 11 || without prejudice. 12 IT IS SO ORDERED. 13 Dated: September 15, 2023 - 14 pBaladt n. Jill L. Burkhardt 15 ited States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28