Morneau v. Protective Life Insurance Company

[8] 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA [11] 12 CRISTIN MORNEAU, individually; Case No.: 3:22-cv-01861-W-AHG KELLY STRANGE, individually; AND 13 ORDER: Cristin Morneau and Kelly Strange, 14 jointly as successors-in-interest to (1) GRANTING JOINT MOTION TO Carolyn A. Morneau and on behalf of the 15 EXTEND SCHEDULING ORDER ESTATE OF CAROLYN A. MORNEAU, DEADLINES, and [16] Plaintiffs, 17 (2) ISSUING THIRD AMENDED v. SCHEDULING ORDER [18] PROTECTIVE LIFE INSURANCE 19 COMPANY, [ECF No. 42] 20 Defendant. [22] 23 Before the Court is the parties’ joint motion to amend the scheduling order. ECF 24 No. 42. The parties seek an order from the Court extending deadlines set forth in the 25 Court’s Second Amended Scheduling Order by approximately 120 days. Id. 26 Parties seeking to continue deadlines in the scheduling order must demonstrate good 27 cause. FED. R. CIV. P. 16(b)(4) (“A schedule may be modified only for good cause and with 28 the judge’s consent”); ECF No. 30 at 7 (Second Amended Scheduling Order, stating that 1 “[t]he dates set forth herein will not be modified except for good cause shown”); see also 2 Chmb.R. at 2 (stating that any request for continuance requires “[a] showing of good cause 3 for the request”). 4 “Good cause” is a non-rigorous standard that has been construed broadly across 5 procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253 , 1259 6 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to 7 amend the scheduling order and the reasons for seeking modification. Johnson v. Mammoth 8 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“[T]he focus of the inquiry is upon 9 the moving party’s reasons for seeking modification. . . . If that party was not diligent, the 10 inquiry should end.”) (internal citation omitted). Therefore, “a party demonstrates good 11 cause by acting diligently to meet the original deadlines set forth by the court.” Merck v. 12 Swift Transp. Co., No. CV-16-01103-PHX-ROS, 2018 WL 4492362 , at *2 (D. Ariz. Sept. 13 19, 2018). 14 Here, the parties represent to the Court that they have been working diligently to 15 abide by the Court’s Second Amended Scheduling Order (ECF No. 30). ECF No. 42 at 4. 16 First, the parties explain that counsel for both sides will be in trial on the date of the 17 Mandatory Settlement Conference. Id. Second, the parties represent that they have met and 18 conferred in person regarding their motions for summary judgment, and have “agreed to 19 explore settlement discussions” again, and “wish to avoid burdening the Court with cross20 motions for summary judgment and incurring unnecessary expense if the parties can 21 resolve this matter.” ECF No. 42-1 at 3. Thus, the parties request a 120-day1 extension of 22 the pretrial motion deadline and a 90-day extension of the remaining dates in the 23 Scheduling Order. ECF No. 42 at 5–6. [25] 1 Though the parties’ joint motion repeatedly states that the parties request that the [26] scheduling order deadlines “be continued 90 days,” (ECF No. 42 at 3, 5), the actual dates 27 selected by the parties reflect a 120-day extension. See ECF No. 42 at 5 (requesting that “[p]retrial [m]otions [be] continued from February 29, 2024 to June 27, 2024,” which is [28] 1 As an initial matter, the parties’ joint motion is deficient. First, the pretrial motion 2 filing deadline is on February 29, 2024, (see ECF No. 30 at 4), but the instant motion to 3 continue that pretrial motion filing deadline, among others, was filed on February 27, 2024. 4 ECF No. 42. By filing the motion two days before the date of the affected deadline, the 5 parties failed to comply with the Court’s Chambers Rules. See Chmb.R. at 2 (requiring that 6 “[a]ll requests for continuances must be made by a joint motion no less than seven calendar 7 days before the affected date”) (emphasis added). 8 Second, the parties’ motion and declaration included misstatements regarding the 9 prior requests for continuances. The parties represent to the Court that they “have jointly 10 requested one prior amendment to the Scheduling Orders [sic].” ECF No. 42 at 4; see also 11 ECF No. 42-1 at 4 (declaring that “[t]he Parties have submitted one prior request for 12 continuance of the Scheduling Order to permit completion of discovery”). However, the 13 parties have filed three other motions to amend the scheduling orders, requesting a 60-day 14 extension, 90-day extension, and 14-day extension, respectively. ECF No. 26; ECF No. 29, 15 ECF No. 35; see also ECF No. 31 at 1–2 (Court expressed concern regarding the parties’ 16 requests for significant extensions, requiring the parties to submit monthly status reports, 17 noting: “the Court has granted approximately five months of extensions to the parties, 18 which essentially doubled the parties’ time to complete fact discovery.… The Court does 19 not grant such large extensions often, and expresses concern that the parties’ settlement 20 negotiations may not have a firm time frame”). The instant motion, if granted, would leave 21 the parties with over nine months of extensions; thus, the Court expresses its concern that 22 the parties minimize this fact in their present motion. 23 Despite the joint motion’s shortcomings, the Court appreciates that the parties have 24 been working together. To facilitate the parties’ meaningful settlement discussions, the 25 Court finds good cause to GRANT the motion. ECF No. 42. The Court issues the following 26 Third Amended Scheduling Order: 27 1. All other pretrial motions must be filed by June 27, 2024. Counsel for the 28 moving party must obtain a motion hearing date from the law clerk of the judge who will 1 hear the motion. The period of time between the date you request a motion date and the 2 hearing date may vary from one district judge to another. Please plan accordingly. Failure 3 to make a timely request for a motion date may result in the motion not being heard. 4 Motions in limine are to be filed as directed in the Local Rules, or as otherwise set by the 5 district judge. 6 2. Pursuant to Civil Local Rule 7.1(f)(3)(c), if an opposing party fails to file 7 opposition papers in the time and manner required by Civil Local Rule 7.1(e)(2), that 8 failure may constitute a consent to the granting of a motion or other request for ruling by 9 the court. Accordingly, all parties are ordered to abide by the terms of Local Rule 7.1(e)(2) 10 or otherwise face the prospect of any pretrial motion being granted as an unopposed motion 11 pursuant to Civil Local Rule 7.1(f)(3)(c). Should either party choose to file or oppose a 12 motion for summary judgment or partial summary judgment, no Separate Statement of 13 Disputed or Undisputed Facts is required. 14 3. Mandatory Settlement Conference shall be conducted on August 23, 2024 at 15 9:30 a.m. before Magistrate Judge Allison H. Goddard via videoconference. Plaintiff 16 must serve on Defendant a written settlement proposal, which must include a specific 17 demand amount, no later than August 2, 2024. The defendant must respond to the plaintiff 18 in writing with a specific offer amount prior to the Meet and Confer discussion. The parties 19 should not file or otherwise copy the Court on these exchanges. Rather, the parties must 20 include their written settlement proposals in their respective Settlement Conference 21 Statements to the Court. Counsel for the parties must meet and confer in person, via 22 videoconference, or by phone no later than August 9, 2024. Each party must prepare a 23 Settlement Conference Statement, which will be served on opposing counsel and lodged 24 with the Court no later than August 15, 2024. The Statement must be lodged in .pdf format 25 via email to efile_goddard@casd.uscourts.gov (not filed). The substance of the Settlement 26 Conference Statement must comply fully with Judge Goddard’s Mandatory Settlement 27 Conference Rules (located at 28 https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Mandatory%20Settlem 1 ent%20Conference%20Rules.pdf). Each party may also prepare an optional Confidential 2 Settlement Letter for the Court’s review only, to be lodged with the Court no later than 3 August 15, 2024. The Letter must be lodged in .pdf format via email to 4 efile_goddard@casd.uscourts.gov (not filed). Should a party choose to prepare a Letter, 5 the substance of the Settlement Conference Letter must comply fully with Judge Goddard’s 6 Mandatory Settlement Conference Rules. The Court requires the attendance of all parties, 7 party representatives with full settlement authority, including claims adjusters for insured 8 defendants, and the primary attorney(s) responsible for the litigation at the 9 videoconference. Each party must email the Court (not filed) at 10 efile_goddard@casd.uscourts.gov by August 15, 2024 with the name, title, and email 11 address of each participant, and the cell phone number for their preferred point of contact. 12 Prior to the start of the MSC, the Court will email each participant an invitation to join a 13 Zoom video conference. All participants shall display the same level of professionalism 14 during the MSC and be prepared to devote their full attention to the conference as if they 15 were attending in person, i.e., cannot be driving or in a car while speaking to the Court. 16 Because Zoom may quickly deplete the battery of a participant’s device, each participant 17 should ensure that their device is plugged in or that a charging cable is readily available 18 during the videoconference. Counsel are advised that although the MSC will take place on 19 Zoom, all participants shall appear and conduct themselves as if it is proceeding in a 20 courtroom, i.e., all participants must dress in appropriate courtroom attire. All parties are 21 ordered to read and to fully comply with the Chambers Rules and Mandatory 22 Settlement Conference Rules of Magistrate Judge Allison H. Goddard. 23 4. Despite the requirements of Civil Local Rule 16.1(f)(2), neither party is 24 required to file a Memorandum of Contentions of Fact and Law at any time. The parties 25 shall instead focus their efforts on drafting and submitting a proposed pretrial order by the 26 time and date specified by Civil Local Rule 16.1(f)(6)(b). The proposed pretrial order shall 27 comply with Civil Local Rule 16.1(f)(6) and the Standing Order in Civil Cases issued by 28 the assigned district judge. 1 5. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 2 Civ. P. 26(a)(3) by October 7, 2024. Failure to comply with these disclosure requirements 3 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 4 6. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 5 October 14, 2024. At this meeting, counsel shall discuss and attempt to enter into 6 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 7 exchange copies and/or display all exhibits other than those to be used for impeachment. 8 The exhibits shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall 9 note any objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. 10 P. 26 (a)(3). Counsel shall cooperate in the preparation of the proposed pretrial conference 11 order. 12 7. Counsel for plaintiff will be responsible for preparing the pretrial order and 13 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By 14 October 21, 2024, plaintiff’s counsel must provide opposing counsel with the proposed 15 pretrial order for review and approval. Opposing counsel must communicate promptly with 16 plaintiff’s attorney concerning any objections to form or content of the pretrial order, and 17 both parties shall attempt promptly to resolve their differences, if any, concerning the order. 18 8. The Proposed Final Pretrial Conference Order, including objections to any 19 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and 20 lodged with the assigned district judge by October 28, 2024, and shall be in the form 21 prescribed in and comply with Local Rule 16.1(f)(6). 22 9. In addition to submitting the proposed final pretrial conference order, the 23 parties are further ordered to separately submit informal letter briefs, not exceeding two 24 single spaced pages, served on opposing counsel and received in the chambers of Judge 25 Thomas J. Whelan, United States District Judge (and not filed with the Clerk’s Office) by 26 2:30 p.m. on October 28, 2024. The letter brief should be a relatively informal and 27 straightforward document. The letter brief should outline a short, concise and objective 28 factual summary of the party’s case in chief, the number of hours/days each party intends 1 || to expend at trial, the approximate number of witnesses, whether certain witnesses will be 2 || coming in from out of town, the number of testifying expert witnesses, whether any unique 3 ||demonstrative exhibits may be presented, the number of proposed motions in limine that 4 be filed, precisely when the parties would be prepared to submit their in limine papers 5 whether the parties have met and conferred with respect to in limine issues), the issue 6 || of proposed jury instructions and when the parties intend to submit them before trial, and 7 || voir dire issues, either party’s preference as to what date(s) the trial should begin and any 8 ||other pertinent information that either party may deem useful to assist the Court in the 9 execution of the pretrial conference and in setting the matter for trial. 10 10. The final Pretrial Conference is scheduled on the calendar of the Honorable 11 || Thomas J. Whelan on November 4, 2024 at 10:30 a.m. 12 11. The parties must review the chambers’ rules for the assigned district judge 13 || and magistrate judge. 14 12. A post trial settlement conference before a magistrate judge may be held 15 |} within 30 days of verdict in the case. 16 13. The dates and times set forth herein will not be modified except for good cause 17 || shown. 18 14. Briefs or memoranda in support of or in opposition to any pending motion 19 not exceed twenty-five (25) pages in length without leave of a district court judge. 20 || No reply memorandum shall exceed ten (10) pages without leave of a district court judge. 21 || Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 22 || and a table of authorities cited. 23 IT IS SO ORDERED. 24 Dated: February 28, 2024 05 _ Siow. Xion Honorable Allison H. Goddard 26 United States Magistrate Judge