Dizon v. Alegre

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA SHEILLI DIZON and MARK JASON Case No. 1:23-cv-01366-JLT-BAM ESPEJO, 12 ORDER GRANTING PLAINTIFFS’ EX Plaintiffs, PARTE APPLICATION TO MODIFY 13 PRETRIAL SCHEDULING ORDER v. 14 (Doc. 44) AMOR ALEGRE and AURORA RIGON, Defendants.

17 BACKGROUND 18 On March 14, 2025, Plaintiffs Sheilli Dizon and Mark Jason Espejo (“Plaintiffs”) filed an ex parte application to modify the Scheduling Conference Order. (Doc. 44.) Plaintiffs request that the Court extend the non-expert and expert discovery deadlines by at least ninety (90) days.

21 (Id.) 22 Plaintiffs explain that the request is based on the inability to complete fact discovery prior to expiration of the non-expert discovery deadline and due to the impending expert disclosure deadline. Plaintiffs report that, among other things, Defendants failed to make initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)(A), Defendant Rigon has yet to respond to any written discovery, Defendant Alegre has not responded to any of Plaintiff Espejo’s written discovery requests, and Defendant Alegre provided untimely responses to Plaintiff Dizon’s requests for admissions and interrogatories, while failing to respond to Plaintiff Dizon’s requests for inspection of documents. (Doc. 44 at 4.) Additionally, Plaintiffs began the deposition of Defendant Alegre on February 26, 2025, but shortly after a meal break, Defendant Alegre stated that she was too tired to continue with the deposition and requested that the deposition be suspended and continued for another day. The parties are currently meeting and conferring regarding the completion of the deposition and the identification of individuals who may possess relevant information and documents. Further, Defendant Rigon has stated that she is not available for a deposition until March of 2025. (Id. at 4-5.)

9 Plaintiffs contend that there is good cause for modification of the Scheduling Conference Order to allow for completion of fact discovery before conducting expert discovery. Plaintiffs are not requesting modification of the dispositive motion deadline, pretrial conference date, or trial date. Although Plaintiffs requested that Defendants stipulate to modification of the Scheduling Conference Order, Defendants declined to stipulate. (Doc. 44 at 5.)

14 LEGAL STANDARD 15 Pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Green Aire for Air Conditioning W.L.L. v. Salem, No. 1:18-cv-00873-LJO-SKO, 2020 WL 58279, at *3 (E.D.

18 Cal. Jan. 6, 2020) (“Requests to modify a scheduling order are governed by Rule 16(b)(4) of the Federal Rules of Civil Procedure, which provides that a court may modify a scheduling order ‘only for good cause.’”). The party seeking to modify a scheduling order bears the burden of demonstrating good cause. Handel v. Rhoe, No. 14-cv-1930-BAS(JMA), 2015 WL 6127271, at *2 (S.D. Cal. Oct. 16, 2015) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992)). The Court may modify the scheduling order “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 609. If the party was not diligent, then the inquiry should end. Id. 27 In determining diligence, the Court can inquire into (1) whether the movant was diligent in aiding the Court in creating a scheduling order, (2) whether matters that were not, and could not be foreseeable at the time the scheduling order was entered caused the need to amend, and (3) whether the movant was diligent in attempting to amend the scheduling order once the need to amend became apparent. Gonzalez v. Jones, No. 2:15-cv-2448-TLN-KJN, 2020 WL 9144005, at *2 (E.D. Cal. April 13, 2020) (citation omitted).

5 DISCUSSION 6 Here, the Court finds good cause to allow for modification of the Scheduling Conference Order. Plaintiffs aided the Court in creating a scheduling order by filing a Scheduling Report and participating in a Scheduling Conference with the Court. (Docs. 20, 22, 24.) As to the cause for the need to amend, the difficulties in completing non-expert discovery, including the depositions of Defendants, arose after entry of the Scheduling Conference Order. The difficulties and delays could not have been foreseen at the time the Scheduling Conference Order was entered. As to diligence in seeking amendment, the Court is concerned that Plaintiffs delayed in attempting to amend the Scheduling Conference Order until after expiration of the non-expert discovery deadline. Nonetheless, Plaintiffs have identified multiple delays in completing non-expert discovery supporting the need for modification. Defendants will not suffer any prejudice by an extension of the relevant non-expert and expert discovery deadlines.

17 Accordingly, having considered the ex parte application, the Court finds good cause to amend the Scheduling Conference Order. Fed. R. Civ. P. 16(b)(4); see also Local Rule 144(c) (“The Court may, in its discretion, grant an initial extension ex parte upon the affidavit of counsel that a stipulation extending time cannot reasonably be obtained, explaining the reasons why such a stipulation cannot be obtained and the reasons why the extension is necessary.”).

22 CONCLUSION AND ORDER 23 For the reasons stated, it is HEREBY ORDERED as follows: 24 1. Plaintiffs’ ex parte application to modify the pretrial scheduling order (Doc. 44) is 25 GRANTED.

26 2. The Scheduling Conference Order is modified as follows: 27 Non-Expert Discovery Cutoff May 29, 2025 Expert Disclosure: June 26, 2025 1 Supplemental Expert Disclosure: July 28, 2025 Expert Discovery Cutoff August 28, 2025 3. All other deadlines set forth in the Scheduling Conference Order issued on April 26, 2024, (Doc. 24), remain unchanged, including the pretrial motion filing deadline, pretrial conference, and trial.

IT IS SO ORDERED.

8 Dated: March 17, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE