Johnson v. Fogo De Chao Churrascaria (San Jose) LLC

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION — 4 — 5 SCOTT JOHNSON, Case No. 21-cv-02859-BLF 6 Plaintiff, ORDER SUSTAINING OBJECTION TO 7 v. MOTION FOR SUMMARY JUDGMENT; TERMINATING 8 FOGO DE CHAO CHURRASCARIA MOTION FOR SUMMARY (SAN JOSE) LLC, JUDGMENT WITHOUT PREJUDICE — 9 — Defendant. [Re: ECF Nos. 30, 32] — 10 — 11 Defendant has filed a motion for summary judgment, which has been noticed for March 12 10, 2022. ECF No. 30. In response, Plaintiff has filed an objection to the motion as (1) untimely 13 under General Order 56 and (2) premature under Federal Rule of Civil Procedure 56(d). ECF No. 14 32 (“Obj.”). Defendant has responded to the objection. ECF No. 34 (“Resp.”). 15 First, the Court notes that Plaintiff’s objection to the motion was filed one week late. 16 Because Defendant did not suffer any prejudice from the tardy objection—having been given the 17 opportunity to respond to it, ECF No. 33—the Court will consider the objection. 18 The Court need not address both of Plaintiff’s arguments because it agrees with the first: 19 that the motion is untimely under General Order 56. Section 3 of General Order 56 states: 20 All discovery, motion practice (except for motions under Rule 12(b) and motions to appear pro hac vice), and other proceedings are 21 STAYED unless the assigned judge orders otherwise. Requests to lift the stay to conduct specific discovery, to file any other motion, to be 22 relieved of any of the requirements of this Order, or to enforce any of the requirements of this Order may be made by stipulation [or 23 administrative motion]. 24 As is made clear by the provision, General Order 56 stays all motion practice, except for motions 25 under Rule 12(b) and motions to appear pro hac vice. Gen. Ord. 56 § 3. Requests to “file any 26 other motion” must be granted by the Court, either by approving a stipulation or granting an 27 administrative motion. Id. Defendant has filed a motion under Rule 56 but has not made a request 1 56 motion is untimely. 2 Defendant cites multiple cases in which courts in this district have permitted Rule 12 3 motions to be filed in cases subject to General Order 56. See Resp. at 1 (citing four cases, 4 || including one before this Court). These cases are inapposite because Defendant has filed a Rule 5 56 motion, not a Rule 12 motion. Additionally, each of the cases cites to an older version of 6 General Order 56 that had different relevant language. The older version of General 56 provided 7 || guidelines for initial disclosures and then stated, “All other discovery and proceedings are 8 STAYED unless the assigned judge orders otherwise.” Gen. Ord. 56 § 2 (as amended, May 29, 9 ||} 2012), available at https://bit.ly/3I5vxdv. Courts had interpreted that language to “plainly refer to 10 || discovery issues” and not bar motions to dismiss. See Moralez v. Whole Foods Mkt., 897 F. Supp. 11 2d 987, 993 (N.D. Cal. 2012); see also Johnson v. Otter, 2019 WL 452040 , at *2 (N.D. Cal. Feb. 12 || 5, 2019) (“General Order 56 does not stay all proceedings in an ADA case, but instead stays only 5 13 discovery and similar proceedings.”). Even assuming that the older version of General Order 56 14 || did not bar Rule 56 motions (which usually follow discovery, unlike Rule 12 motions) while the 3 15 stay was in place, the current General Order 56—as amended January 1, 2020—is more explicit, 16 || expressly prohibiting motion practice other than Rule 12 motions and motions to appear pro hac 3 17 || vice. Defendant’s cases did not interpret this version of General Order 56 and thus do not apply. 18 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs objection is 19 SUSTAINED and Defendant’s motion for summary judgment is TERMINATED WITHOUT 20 || PREJUDICE to being timely refiled under General Order 56. Because the Court has terminated 21 the motion, the March 10, 2022 hearing is VACATED. See Civil L.R. 7-1(b). — 22 — 23 || Dated: January 13, 2022 han hen Lh omer) BETH LABSON FREEMAN 25 United States District Judge — 26 — — 27 — — 28 —