Diversified Lenders, LLC v. Amazon Logistics, Inc. et al

MOTION to Amend 102 Minute Order Setting Trial Date and Related Dates,,

W.D. Wash.September 15, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF DIVERSIFIED LENDERS, LLC’S MOTION TO MODIFY THE COURT’S SECOND AMENDED ORDER SETTING TRIAL DATE & RELATED DATES - 1 No. 2:16-cv-01232-RSL Ullman & Ullman, P.A. 7700 W. Camino Real, Suite 401 Boca Raton, FL 33433 Phone (561) 338-3535 Fax (561) 338-3581 HONORABLE ROBERT S. LASNIK UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Diversified Lenders, LLC, an Oklahoma limited liability company, Plaintiff, v. Amazon Logistics, Inc., a Delaware corporation; Vertical Holdings Unlimited, LLC, a Florida limited liability company doing business as VHU Express, Defendants. No. 16-cv-01232-RSL PLAINTIFF DIVERSIFIED LENDERS, LLC’S MOTION TO MODIFY THE COURT’S SECOND AMENDED ORDER SETTING TRIAL DATE & RELATED DATES [D.E. 102] Amazon Logistics, Inc., Cross-Claim Plaintiff, v. Vertical Holdings Unlimited, LLC, Cross- Claim Defendant. NOTE ON MOTION CALENDAR: SEPTEMBER 29, 2017 Plaintiff Diversified Lenders, LLC (“Diversified” or “Plaintiff”), by and through the undersigned counsel, and pursuant to Federal Rules of Civil Procedure 7 and 16 and Local Rules 7(d)(2), 10, and 16(b), and supported by the Declaration of Jocelyne A. Macelloni, Esq., attached hereto as Exhibit A (the “Macelloni Dec.”), hereby moves this Court for the entry of an Order Case 2:16-cv-01232-RSL Document 107 Filed 09/15/17 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF DIVERSIFIED LENDERS, LLC’S MOTION TO MODIFY THE COURT’S SECOND AMENDED ORDER SETTING TRIAL DATE & RELATED DATES - 2 No. 2:16-cv-01232-RSL Ullman & Ullman, P.A. 7700 W. Camino Real, Suite 401 Boca Raton, FL 33433 Phone (561) 338-3535 Fax (561) 338-3581 modifying the Court’s Second Amended Order Setting Trial Date & Related Dates [D.E. 102] (the “Scheduling Order”) only as to the deadline to file dispositive motions, and in support thereof, states the following: A. Standard for Modifying a Scheduling Order Deadline. Federal Rule of Civil Procedure 16 provides that a scheduling order may be modified for good cause and with the Court’s consent. See Fed. R. Civ. P. 16(b). To demonstrate “good cause” the moving party must establish that the scheduling order deadline could not be met despite the diligence of the party seeking the amendment. Id. Factors that support a finding of good cause include that the information supporting the proposed amendment was not available to the movant prior to the deadline and the movant did not delay in seeking the amendment after acquiring the information. See Canal Indem. Co. v. Margaretville of NSB, Inc., 2014 WL 5341873, *2 (5th Cir. Sep. 4, 2014); See also Schweickert v. Hunts Point Ventures, Inc., 2014 WL 6886630 (W.D. Wash. Dec. 4, 2014). “Prejudice or lack of prejudice to a non-moving party by the proposed amendment is immaterial when considering whether to allow amendment of a pleading after the deadline.” Id. B. Request for Relief. Diversified and its counsel request that the Court modify the Scheduling Order and enlarge the dispositive motion filing deadline, which is currently September 15, 2017, by ten (10) days, through and including September 25, 2017. On September 10, 2017, the office of the undersigned counsel, along with the homes of all of its employees, was hit by Hurricane Irma. In order to adequately prepare for the hurricane the office of the undersigned counsel closed at 2:00 p.m. EST on September 6, 2017 and did not Case 2:16-cv-01232-RSL Document 107 Filed 09/15/17 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF DIVERSIFIED LENDERS, LLC’S MOTION TO MODIFY THE COURT’S SECOND AMENDED ORDER SETTING TRIAL DATE & RELATED DATES - 3 No. 2:16-cv-01232-RSL Ullman & Ullman, P.A. 7700 W. Camino Real, Suite 401 Boca Raton, FL 33433 Phone (561) 338-3535 Fax (561) 338-3581 begin conducting regular business until the afternoon of September 13, 2017. Many of counsel’s employees evacuated the area to avoid the storm and it has taken time for everyone to return to work and begin operating once again. During this time the office was closed, counsel for Diversified was unable to conduct any business as all servers and computers were down and files were secured in the event of flooding. In addition, the power was out in the office from September 10th through the 12th. Since returning to the office, the efficiency of the undersigned counsel’s office has been impacted much more than anyone had anticipated. Prior to Hurricane Irma hitting the State of Florida, Diversified was working diligently to prepare a Motion for Summary Judgment against Amazon; but was simply unable to finalize and file the Motion prior to the hurricane hitting. The unexpected and emergency situation caused by Hurricane Irma has made it impossible for Diversified to meet the current deadline of September 15, 2017. On September 15, 2017, counsel for Diversified, Jocelyne A. Macelloni, contacted counsel for Amazon to request that Amazon stipulate to the brief enlargement of the deadline to file dispositive motions. In response, counsel for Amazon stated that “I do not at this time have authority from Amazon to stipulate as requested, and expect that Amazon will not be inclined to do so.” [See Exhibit A, Ex. 1]. In addition, Ms. Power stated that Diversified could have requested this extension prior to the hurricane at the same time Diversified requested an extension to respond to Amazon’s Motion for Summary Judgment. Diversified inadvertently did not request a modification of the Scheduling Order deadline prior to its offices closing for the hurricane simply due to how incredibly hectic things were in the office in order to prepare for the Case 2:16-cv-01232-RSL Document 107 Filed 09/15/17 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF DIVERSIFIED LENDERS, LLC’S MOTION TO MODIFY THE COURT’S SECOND AMENDED ORDER SETTING TRIAL DATE & RELATED DATES - 4 No. 2:16-cv-01232-RSL Ullman & Ullman, P.A. 7700 W. Camino Real, Suite 401 Boca Raton, FL 33433 Phone (561) 338-3535 Fax (561) 338-3581 hurricane, including requesting more than a dozen enlargements in other matters pending in courts around the country. Under the circumstances, Diversified has moved as diligently as possible in requesting this brief modification of the Scheduling Order. On September 15, 2017, counsel for Diversified and counsel for Amazon, in accordance with Local Rule 7(j), contacted the Court by telephone and left a message requesting a brief telephonic hearing. This Motion is being filed in an abundance of caution as the parties have not yet received a response as to the request. For the reasons stated herein, good cause exists for the Court to grant the Motion and amend its Scheduling Order as to the deadline to file dispositive motions only. This Motion is not being made for the purposes of any delay. WHEREFORE, Plaintiff Diversified Lenders, LLC respectfully requests that this Court enter an Order granting this Motion, and for such other and further relief that this Court deems necessary and proper. Respectfully submitted September 15, 2017. ULLMAN & ULLMAN, P.A. BY: /s/ Jocelyne A. Macelloni /s/ Michael W. Ullman /s/ Jared A. Ullman Jocelyne A. Macelloni, Florida Bar No. 92092 Michael W. Ullman, Florida Bar No. 259667 Jared A. Ullman, Florida Bar No. 90500 7700 West Camino Real, Suite 401 Boca Raton, FL 33433 Telephone: (561) 338-3535 Facsimile: (561) 338-3581 jocelyne.macelloni@uulaw.net michael.ullman@uulaw.net jared.ullman@uulaw.net Case 2:16-cv-01232-RSL Document 107 Filed 09/15/17 Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF DIVERSIFIED LENDERS, LLC’S MOTION TO MODIFY THE COURT’S SECOND AMENDED ORDER SETTING TRIAL DATE & RELATED DATES - 5 No. 2:16-cv-01232-RSL Ullman & Ullman, P.A. 7700 W. Camino Real, Suite 401 Boca Raton, FL 33433 Phone (561) 338-3535 Fax (561) 338-3581 -AND- GORDON TILDEN THOMAS & CORDELL LLP Franklin D. Cordell, WSBA #26392 Jeffrey M. Thomas, WSBA #21175 1001 Fourth Avenue, Suite 4000 Seattle, Washington 98154 Telephone: (206) 467-6477 Facsimile: (206) 467-6292 Email: fcordell@gordontilden.com Email: jthomas@gordontilden.com Co-Counsel for Diversified Lenders, LLC Case 2:16-cv-01232-RSL Document 107 Filed 09/15/17 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF DIVERSIFIED LENDERS, LLC’S MOTION TO MODIFY THE COURT’S SECOND AMENDED ORDER SETTING TRIAL DATE & RELATED DATES - 6 No. 2:16-cv-01232-RSL Ullman & Ullman, P.A. 7700 W. Camino Real, Suite 401 Boca Raton, FL 33433 Phone (561) 338-3535 Fax (561) 338-3581 CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing document to be electronically filed with the Clerk of the Court using the CM/ECF filing system, which in turn automatically generated a Notice of Electronic Filing to all parties in the case who are registered users of the CM/ECF filing system, and specifically the following: Franklin D. Cordell, WSBA #26392 Jeffrey M. Thomas, WSBA #21175 1001 Fourth Avenue, Suite 4000 Seattle, Washington 98154 Telephone: (206) 467-6477 Facsimile: (206) 467-6292 Email: fcordell@gordontilden.com Email: jthomas@gordontilden.com Vanessa S. Power Reed W. Morgan, pro hac vice STOEL RIVES LLP 600 University Street, Suite 3600 Seattle, WA 98101 Tel: (206) 386-7553 Fax: (206) 386-7500 Email: vanessa.power@stoel.com Email: reed.morgan@stoel.com Dated: September 15, 2017. /s/ Tami Gordon Tami Gordon, Legal Assistant Ullman & Ullman, P.A. 7700 West Camino Real, Suite 401 Boca Raton, FL 33433 Telephone: (561) 338-3535 Facsimile: (561) 338-3581 Jocelyne.macelloni@uulaw.net G:\wp51 16\160018\Pleadings\Motion to Amend the Court's Amended Order Setting Trial Date & Related Dates re File Summary Judgment (9-15-17).doc Case 2:16-cv-01232-RSL Document 107 Filed 09/15/17 Page 6 of 6