Opinion
Case No. 2:22-cv-00186-RFB-NJK
2022-09-13
Laura WILLIAMS, Plaintiff(s), v. JAMES RIVER GROUP INCORPORATED, Defendant(s).
Burke Huber, Richard Harris Law Firm, Las Vegas, NV, Sandy Van, Zachary Balkin, Van Law Firm, Las Vegas, NV, for Plaintiff(s). Jeffrey W. Saab, Bremer Whyte Brown & O'Meara, LLP, Las Vegas, Melissa Ingleby, Caryn Rachel Schiffman, Jared G. Christensen, Bremer Whyte Brown & O'Meara, Las Vegas, NV, for Defendant(s).
Burke Huber, Richard Harris Law Firm, Las Vegas, NV, Sandy Van, Zachary Balkin, Van Law Firm, Las Vegas, NV, for Plaintiff(s). Jeffrey W. Saab, Bremer Whyte Brown & O'Meara, LLP, Las Vegas, Melissa Ingleby, Caryn Rachel Schiffman, Jared G. Christensen, Bremer Whyte Brown & O'Meara, Las Vegas, NV, for Defendant(s).
Order
[Docket No. 42] Nancy J. Koppe, United States Magistrate Judge
Pending before the Court is a renewed stipulation to extend deadlines in the scheduling order by 60 days. Docket No. 42. For the reasons discussed more fully below, the stipulation to extend is DENIED.
I. BACKGROUND
On December 28, 2021, Plaintiff brought suit in state court alleging that Defendant breached its contractual obligations and engaged in bad faith practices in denying underinsured motorist coverage. Docket No. 1-1. On February 1, 2022, Defendant removed the case to federal court on the basis of diversity jurisdiction. Docket No. 1. On May 24, 2022, the Court ordered the parties to file a joint proposed discovery plan by May 31, 2022. Docket No. 15.
On May 31, 2022, Plaintiff filed a request to remove attorney Zachary Belkin as counsel of record in this case. Docket No. 16. In so doing, Plaintiff's counsel represented that "Sandy Van, Esq. will be the Lead Attorney, and Burke L. Huber, Esq. will be the Secondary Attorney to be Noticed on this file." Id. at 2. On June 1, 2022, the Court approved the request to remove Attorney Belkin from the docket. Docket No. 20.
On May 31, 2022, the parties filed a joint discovery plan seeking special scheduling review. Docket No. 18. In particular, the presumptively reasonable discovery period in the local rules provides for 180 days of discovery, Local Rule 26-1(b)(1), while the parties sought a discovery period of 225 days, Docket No. 18 at 2. On June 1, 2022, the Court denied that discovery plan because the parties failed to comply with the local rules applicable to requests for special scheduling review. Docket No. 19.
On June 3, 2022, the parties filed an amended joint discovery plan again seeking an extended discovery period. Docket No. 21 at 2. On June 6, 2022, the Court denied the amended discovery plan because it failed to justify the request for extra time. Docket No. 22 at 1.
The discovery period is measured from the date the defendant answered or otherwise appeared. Local Rule 26-1(b)(1). The amended joint discovery plan sought extra time by asking that the discovery period be calculated from the later date of the parties' Rule 26(f) conference. Docket No. 21 at 2.
On June 10, 2022, the parties filed a second amended joint discovery plan again seeking an extended discovery period. Docket No. 24 at 2. On June 21, 2022, the parties filed a third amended joint discovery plan superseding the preceding discovery plan and abandoning the request for special scheduling review. Docket No. 31 at 2. On June 22, 2022, the Court adopted the third amended joint discovery plan and entered a scheduling order with the following deadlines:
In the interim, the Court issued an order to show cause addressing various concerns. Docket No. 25; see also Docket Nos. 29-30, 32 (responses). The Court ultimately ordered two of the attorneys to read the local rules and cautioned "all counsel of record that they must strictly comply with the local rules and all Court orders moving forward." Docket No. 36 at 2.
• Initial disclosures: June 30, 2022Docket No. 33 at 2.
• Amend pleadings/ add parties: August 9, 2022
• Initial experts: September 8, 2022
• Rebuttal experts: October 7, 2022
• Discovery cutoff: November 7, 2022
• Dispositive motions: December 7, 2022
• Joint proposed pretrial order: January 7, 2023, or 30 days after resolution of dispositive motions
On September 7, 2022, the parties filed a stipulation seeking a 60-day extension of the unexpired deadlines in the scheduling order. Docket No. 39. On September 8, 2022, the Court denied that stipulation without prejudice because it failed to provide sufficient detail as to the required showing of good cause. Docket No. 41.
On September 8, 2022, the parties filed a renewed stipulation seeking a 60-day extension of the unexpired deadlines in the scheduling order. Docket No. 42. As with the prior stipulation, this request represents that no affirmative discovery has been taken in this case. Id. at 2 (indicating only that initial disclosures were exchanged). The stipulation notes the parties' concurrence to the extension sought, before attempting to establish good cause for the request by stating the following:
Plaintiff's counsel, Burke Huber, Esq., took over this matter from Zach Balkin, Esq., when Mr. Balkin left Van Law Firm. Due to Mr. Huber's heavy calendar, he has been unable to obtain any Defendant depositions, but will be serving written discovery this week and will be noticing Defendant's witnesses. Furthermore, Plaintiff requires additional time for Plaintiff's experts to review all relevant medical records and to render a corresponding expert report, as well as both parties are requesting additional
time to try to reach possible settlement through means of potential mediation.Id. at 3. Despite the prior order highlighting the need for a more robust explanation, Docket No. 41 at 2, the instant stipulation offers no further elaboration beyond these statements.
II. STANDARDS
"The district court is given broad discretion in supervising the pretrial phase of litigation," including in issuing and enforcing scheduling orders. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). "The Ninth Circuit has also repeatedly and emphatically addressed the importance of scheduling orders as tools for district courts to manage their heavy caseloads." Desio v. State Farm Mut. Auto. Ins. Co., 339 F.R.D. 632, 641 (D. Nev. 2021) (collecting cases). As articulated in one of those cases:
A scheduling order "is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril." The district court's decision to honor the terms of its binding scheduling order does not simply exalt procedural technicalities over the merits of [the] case. Disregard of the order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (internal citation omitted). In short, Rule 16 of the Federal Rules of Civil Procedure, as well as the scheduling orders entered pursuant to that rule, must "be taken seriously." Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994); see also Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005) (recognizing that "deadlines are [to be] taken seriously by the parties, and the best way to encourage that is to enforce the deadlines"). "District court oversight is encouraged to avoid 'protracted discovery, the bane of modern litigation.' " Garcia v. Serv. Emps. Int'l Union, 332 F.R.D. 351, 354 (D. Nev. 2019) (quoting Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000)).
"The Ninth Circuit is protective of this particular rule, as it deems Rule 16 to be an essential tool in controlling heavy trial court dockets." Gerawan Farming, Inc. v. Rehrig Pac. Co., No. 1:11-cv-01273-LJO-BAM, 2013 WL 645741, at *4 (E.D. Cal. Feb. 21, 2013). The Ninth Circuit has at times taken a softer approach to extensions of deadlines outside the Rule 16 context, such as those related to briefing schedules. See Ahanchian v. Xenon Pics., Inc., 624 F.3d 1253, 1257-60 (9th Cir. 2010); but see Ratha v. Phatthana Seafood Co., 35 F.4th 1159, 1181 (9th Cir. 2022) (distinguishing Ahanchian and affirming denial of request to extend "stringent" briefing schedule). Given the robust body of law specific to the Rule 16 context, the Court does not apply the standards discussed in these other cases. See, e.g., Espinosa v. Corrections Corp. of Am., No. 2:19-cv-01617-RFB-NJK, 2021 WL 4186694, at *1 n.1 (D. Nev. Aug. 23, 2021).
A request to extend unexpired deadlines in the scheduling order must be premised on a showing of good cause. Fed. R. Civ. P. 16(b)(4); Local Rule 26-3. The good cause analysis turns on whether the subject deadlines cannot reasonably be met despite the exercise of diligence. Johnson, 975 F.2d at 609. "The diligence obligation is ongoing." Morgal v. Maricopa Cnty. Bd. of Supervisors, 284 F.R.D. 452, 460 (D. Ariz. 2012). The showing of diligence is measured by the conduct displayed throughout the entire period of time already allowed. See Muniz v. United Parcel Serv., Inc., 731 F.Supp.2d 961, 967 (N.D. Cal. 2010) (quoting Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999)). "[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Johnson, 975 F.2d at 609. When diligence has not been shown in support of an extension request, "the inquiry should end." Id.
When a request to extend case management deadlines is made by stipulation, courts may consider the joint nature of the request in deciding whether the circumstances warrant an amendment to the scheduling order. Nonetheless, courts addressing such requests are deciding at bottom whether to modify their own orders, an issue that need not be based necessarily on the promptings of the parties. Bonavito v. Nev. Prop. 1 LLC, No. 2:13-cv-00417-JAD-CWH, 2014 WL 5364077, at *4 (D. Nev. Oct. 21, 2014) ("the Court need not rely on the parties to enforce its own orders"). Rule 16 was amended in 1983 for the purpose of encouraging "forceful judicial management" of case administration. Sherman v. United States, 801 F.2d 1133, 1135 (9th Cir. 1986); see also Matter of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984) (en banc) ("The primary focus of amended Rule 16 is on the mechanics of pretrial conferences and scheduling. The purpose of Rule 16 is to insure early judicial intervention in the process of trial preparation and proper conduct of that entire process"). The federal rules were amended again in 2015 to further "engage judges in early and active case management." Roberts v. Clark Cnty. Sch. Dist., 312 F.R.D. 594, 604 (D. Nev. 2016). The governing rules reflect this judicial oversight in a number of ways, including explicitly disabusing attorneys of any notion that stipulations regarding case management deadlines are effective without judicial approval. See Fed. R. Civ. P. 16(b)(4) (case management deadlines are modified only "with the judge's consent"); see also Fed. R. Civ. P. 29(b); Local Rule 7-1(b). That a request is made jointly neither mandates allowance of the extension sought nor exempts parties from making the necessary showings to justify that relief. Failure to provide such showings may result in denial of a stipulated request to extend the case management deadlines. See, e.g., Rybski v. Home Depot USA, Inc., No. CV-12-751-PHX-LOA, 2012 WL 5416586, at *2 (D. Ariz. Oct. 17, 2012); Campos v. Steen, No. 2:08-cv-00748-LRH-PAL, 2010 WL 114470 (D. Nev. Jan. 7, 2010); Soilworks, LLC v. Midwest Indus. Supply, Inc., No. CV 06-2141-PHX-DGC, 2008 WL 629036 (D. Ariz. Mar. 5, 2008).
The Court has made clear from the outset of this case that it would actively manage deadlines. See, e.g., Docket No. 22 (denying joint request for extended discovery period).
III. ANALYSIS
The parties' stipulation in this case does not establish good cause to extend the case management deadlines established in the scheduling order. The stipulation on its face shows that the parties have engaged in no affirmative discovery, Docket No. 42 at 2, despite the fact that discovery has been open for more than three months, compare Docket No. 24 at 2 (representing that counsel engaged in Rule 26(f) conference on May 26, 2022) with Fed. R. Civ. P. 26(d)(1) (generally prohibiting parties from engaging in discovery before the Rule 26(f) conference). A complete failure to engage in the discovery process is antithetical to the diligence requirement. Nonetheless, the stipulation attempts to explain such shortcoming by advancing a few excuses and otherwise urging that good cause exists to extend the case management deadlines. Docket No. 42 at 3. As discussed below, the Court is not persuaded.
A. Appearance by Counsel
The stipulation seeks relief from the current deadlines based on the fact that Attorney Huber "took over this matter" from another attorney. Docket No. 42 at 3.
The appearance of counsel does not establish good cause for a number of reasons. As a practical matter, the mere appearance of a new attorney "will not alone be reason for delay of . . . discovery." Local Rule IA 11-6(d). At any rate, Attorney Huber became counsel of record more than three months ago. Docket No. 20. Indeed, Attorney Huber was counsel of record with respect to the discovery plan that was accepted in formulating the scheduling order. Docket No. 31 at 1, 4. Any need to become familiar with the matter by no means accounts for a three-month gap in which Plaintiff conducted no discovery. Moreover, and relatedly, Attorney Huber entered the case without specifying his appearance would cause delay or otherwise warrant extending any deadlines. See Docket No. 16. By substituting into the case in that manner, Attorney Huber was attesting that his appearance did not require delay of any deadlines. Cf. Local Rule IA 11-6(c).
As discussed more fully below, Attorney Van is also counsel of record for Plaintiff. Docket No. 16 at 2. No explanation is advanced why Attorney Van apparently conducted no discovery during this period.
Attorney Van raised the turnover of counsel, as well as workload issues, in seeking to avoid sanctions arising out of the discovery plan process. See Docket No. 30 at 2. The Court made clear in its subsequent order that obtaining new counsel and caseload management difficulties do not justify violations of the local rules or Court orders. Docket No. 36 at 2.
The appearance of Attorney Huber on May 31, 2022, does not establish good cause for the extension sought.
B. Counsel's Busy Schedule
The stipulation asserts that good cause exists for the extension requested because Attorney Huber has been too busy with his "heavy calendar" to conduct discovery in this case. Docket No. 42 at 3.
Attorney Huber's busy schedule is not good cause for the extension sought. The Court begins with a simple truth that seems to be lost on counsel: attesting that an attorney has overloaded his work obligations such that he cannot comply with established deadlines is not only an insufficient basis to modify case management deadlines, it is cause for alarm. See Nationstar Mortg. LLC v. Thunder Props., No. 2:17-cv-00713-JAD-NJK, 2019 WL 12520088, at *1 (D. Nev. July 8, 2019); see also Greene v. Alhambra Hosp. Med. Ctr., No. 2:15-cv-00451-JAD-NJK, 2015 U.S. Dist. Lexis 72697, at *4 (D. Nev. June 3, 2015) (concluding that a busy litigation schedule was not grounds for relief from deadlines and noting that "an attorney who tries to explain a tardy filing by pointing to such overcommitment would likely face a malpractice suit"). Attorneys have a duty to the Court and to their clients to ensure that they accept a caseload that enables them to meet litigation deadlines. See, e.g., Carisbrook Asset Holding Tr. v. SFR Invs. Pool 1, LLC, No. 3:17-cv-00370-MMD-WGC, 2019 WL 2393614, at *3 n.2 (D. Nev. June 6, 2019). Absent unusual circumstances in which unexpected work obligations arise, it is not good cause for an extension of the case management deadlines in the scheduling order that attorneys were inattentive to the subject case while they were busy tending to other matters. See, e.g., Branch Banking & Trust Co. v. D.M.S.I., LLC, No. 2:11-cv-01778-APG-VCF, 2013 WL 3197663, at *1 n.1 (D. Nev. June 21, 2013) (finding excuse that parties and their counsel "were very busy . . . does not constitute 'good cause' pursuant to Fed. R. Civ. P. 16"), aff'd, 871 F.3d 751, 765 (9th Cir. 2017).
Even aside from the legal inadequacy of this reasoning, this excuse fails as a factual matter. As noted above, Plaintiff's counsel represented to the Court that it is Attorney Van who is lead counsel on this case. Docket No. 16 at 2. That the "[s]econdary [a]ttorney" on a case has been busy does not advance the ball as to good cause for an extension when there is no explanation as to why the "[l]ead [a]ttorney" has also failed to conduct discovery to meet the case management deadlines already in place. See Vaden v. Linn Star Transfer, Inc., No. 19-cv-01846-HSG, 2019 WL 5212999, at *2, 3 (N.D. Cal. Oct. 16, 2019) (explaining that each attorney of record has an independent responsibility to diligently advance the case so as to meet the deadlines in the scheduling order); see also U.S. Bank N.A. v. SFR Invs. Pool 1, LLC, No. 2:16-cv-00576-GMN-NJK, 2018 WL 701816, at *5-6 (D. Nev. Feb. 2, 2018) (explaining that all attorneys of record, including supervising attorneys, are obligated to meet deadlines).
Attorney Huber's "heavy calendar" does not establish good cause for the extension sought.
C. Additional Time to "Review" Records
The stipulation asserts that good cause exists for the extension requested because more time is needed to review medical records and for experts to craft their reports. Docket No. 42.
While perhaps somewhat closer to the mark than the other reasons advanced, this reasoning also fails to establish good cause. Most significantly, the stipulation provides none of the underlying details as to how the current deadlines could not have been met through the reasonable exercise of diligence. For example, the stipulation does not indicate the process by which the medical records were obtained, any unexpected delays in obtaining them, or any corresponding dates with respect to this reasoning. Instead, the stipulation provides a bald assertion that more time is needed without filling in any of the obvious gaps, which is plainly insufficient. See Morgal, 284 F.R.D. at 461 (rejecting "bald assertion" of an opponent's withholding of discovery as insufficient to establish good cause). The shortcoming is particularly pronounced here because the Court already ordered that such details must be provided to establish good cause:
[T]he stipulation provides a bare bones assertion that more time is needed to obtain medical records . . . No elaboration is provided as to why medical records have not been obtained in the months since discovery has been open . . . Without such details being provided, the Court is unable to determine that the deadlines as currently set could not have been met through the exercise of reasonable diligence throughout the discovery period.Docket No. 41 at 2. In what should be a surprise to no one given this prior ruling a few days ago on substantially the same issue, the Court again concludes that it cannot make a finding of diligence based on an unelaborated assertion of a need to review records.
There is a slight twist in the two filings. The prior stipulation represented that Plaintiff needed more time to "secure" medical records, Docket No. 39 at 3, while the current stipulation represents that Plaintiff's experts need more time to "review" medical records, Docket No. 42 at 3. Nonetheless, the failure to provide elaborated reasoning remains constant across the requests.
The need to review medical records does not establish good cause for the extension sought.
D. Settlement Discussions
The stipulation asserts that good cause exists for the extension requested because the parties wish to discuss "possible settlement" in a "potential mediation." Docket No. 42 at 3.
There is no doubt that federal courts encourage informal settlement and use of alternative dispute resolution. At the same time, settlement discussions and the potential for alternative dispute resolution should have an ongoing presence in federal litigation from its inception. See, e.g., Fed. R. Civ. P. 26(f)(2) (requiring counsel to discuss the prospect of settlement at the Rule 26(f) conference); Local Rule 26-1(b)(7) (requiring counsel to certify in the discovery plan that they have discussed alternative dispute resolution). There is nothing unexpected about the prospect that a case may settle that would ordinarily warrant a delay to the existing deadlines in the case. E.g., Lehman Bros. Holdings, Inc. v. Golden Empire Mortg., Inc., No. 1:09-cv-01018-LJO-JLT, 2010 WL 2679907, at *2 (E.D. Cal. July 2, 2010) ("the parties' willingness to settle this case is admirable. However, settlement discussions generally are not an 'unanticipated' development"). As such, it is well-settled that the existence of settlement talks or the potential for alternative dispute resolution is not, standing alone, sufficient to establish good cause for an extension of the case management deadlines. See, e.g., Santillan v. USA Waste of Cal., Inc., No. CV 14-00335-AB (SSx), 2019 WL 2970828, at *6 (C.D. Cal. May 9, 2019); AIG Specialty Ins. Co. v. Liberty Mut. Fire Ins. Co., No. 2:17-cv-01260-APG-NJK, 2018 WL 6728406, at *2 n.5 (D. Nev. Aug. 20, 2018), adopted, 2018 WL 6728389 (D. Nev. Nov. 19, 2018); Fox v. State Farm Ins. Co., Case No. C15-535RAJ, 2016 WL 304784, at *4 (W.D. Wash. Jan. 26, 2016); United States v. Jaynes Corp., No. 2:13-cv-1907-APG-NJK, 2015 U.S. Dist. Lexis 82928, at *3 (D. Nev. June 22, 2015); United States E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-cv-01588-LRH-GWF, 2014 WL 5045109, at *2 (D. Nev. Oct. 9, 2014); Burton v. Nationstar Mortg., LLC, No. 1:13-cv-00307-LJO-JLT, 2014 WL 3890103, at *3 (E.D. Cal. Aug. 4, 2014); McIntosh v. Wells Fargo Bank, N.A., No. CV-12-1218-PHX-GMS, 2013 WL 12173910, at *3 (D. Ariz. Nov. 7, 2013); Gerawan Farming, 2013 WL 645741, at *5; Rybski, 2012 WL 5416586, at *2; United States ex rel. Technica LLC v. Carolina Cas. Ins. Co., No. 08-cv-01673-H (KSC), 2012 WL 1672580, at *4 (S.D. Cal. May 14, 2012); Actuate Corp. v. Aon Corp., No. C 10-05750 WHA, 2011 WL 4916317, at *1-2 (N.D. Cal. Oct. 17, 2011); Lehman Brothers Holdings, 2010 WL 2679907, at *2; Eckert v. City of Sacramento, No. 2:07-cv-00825-GEB-GGH, 2009 WL 3211278, at *2 (E.D. Cal. Sept. 30, 2009); Irise v. Axure Software Sols., Inc., No. CV 08-03601 SJO (JWJx), 2009 WL 3615973, at *3 (C.D. Cal. July 30, 2009); CEC Ent., Inc. v. Kobra Props., No. 2:06-cv-0639 JAM EFB, 2008 WL 4291242, at *1 (E.D. Cal. Sept. 18, 2008).
The stipulation asserts that good cause exists for an extension of case management deadlines here because the parties wish to discuss "possible settlement" in a "potential mediation." Docket No. 42 at 3. Despite a recent order issued in this case on this very issue, Docket No. 41 at 2, no elaboration is advanced that the prospect of settlement in mediation warrants an extension in this case. The Court is again left with a bald assertion that settlement talks and a mediation may take place in the future, which fails as a matter of law to establish grounds for modification of the case management deadlines.
Courts may exercise their discretion to extend case management deadlines to foster the prospects of settlement in appropriate cases. Context in making such a request is important. Courts are more likely to allow delay on this basis when, inter alia, a meaningful showing is made that the parties have otherwise been diligent in prosecuting the case, the request is made preemptively rather than after the parties agreed without judicial approval to avoid their discovery obligations, the parties are reasonably close to settlement or there is otherwise a substantial likelihood of settlement, settlement is more likely achievable if certain litigation obligations are delayed in the interim, substantial judicial or party resources may be spared if settlement is achieved, and/or a concrete date is set in the relative near-term by which the settlement discussions or alternative dispute resolution will be completed. See, e.g., Lehman Brothers Holdings, 2010 WL 2679907, at *2. The stipulation in this case states in conclusory fashion that the parties wish to explore "possible settlement" in a "potential mediation" at some unstated date despite the parties sitting on their hands throughout the discovery period. Docket No. 42 at 3. The mere prospect of settlement discussions or a mediation does not establish good cause to modify the case management deadlines in the scheduling order.
A "possible settlement" at a "potential mediation" does not establish good cause for the extension sought.
IV. CONCLUSION
For the reasons discussed more fully above, the stipulation to extend is DENIED.
Some of the issues addressed herein would generally lead to an order denying the request without prejudice so that a more robust showing can be made. In this case, the Court already afforded the parties an additional opportunity to make a more fulsome showing, Docket No. 41 at 2, so the requested extension is being denied with prejudice.
IT IS SO ORDERED.