Opinion
Case No. CIV. S-05-0971 WBS DAD.
February 3, 2006
ORDER
Defendant Meyer Corporation has filed an ex parte application for an order shortening time for notice of a motion for leave to file an amended counterclaim. Defendant's allegedly urgent need for an order shortening time rests entirely on the fact that discovery is about to close.
In the scheduling order of August 8, 2005, the court ordered that "[a]ll discovery . . . shall be . . . completed by February 17, 2006. The word `completed' means that all discovery shall have been conducted so that all depositions have been taken and any disputes relevant to discovery shall have been resolved. . . ." (Aug. 8, 2005 Order 2-3.) Defendant believes that if this court hears its motion on February 10 and issues an order granting defendant's motion to amend its counterclaim sometime thereafter, the parties will still have sufficient time to conduct discovery related to "a new patent, new named inventor, new owner, a new time period, and new . . . products" before February 17. (Def.'s Ex Parte App. 2; Pl.'s Opp'n 6.)
It would be impossible for the necessary discovery on a new patent infringement counterclaim to be initiated and completed within the period of one week. Moreover, if the court permits defendant to amend the counterclaim at this late date, it will necessarily need to amend the scheduling order. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). If the court grants defendant's motion to file its amended counterclaim, the court could thus, at the same time, amend the scheduling order regarding discovery to accommodate defendant's new counterclaim. There is no urgent need for the court to shorten time.
IT IS THEREFORE ORDERED that defendant's ex parte application for an order shortening time for notice of a motion for leave to file an amended counterclaim be, and the same hereby is, DENIED.