Opinion
3:21-cv-01765-LAB-AHG
03-01-2022
KRISTA FREITAG, Court-appointed permanent receiver for ANI Development LLC, American National Investments, Inc., and their subsidiaries and affiliates, Plaintiff, v. JON P. PETERSON, CLAUDIA M. PETERSON, and DOES 1-10, Defendants.
ORDER GRANTING MOTION TO CONTINUE SECOND EARLY NEUTRAL EVALUATION CONFERENCE AND CASE MANAGEMENT CONFERENCE
[ECF NO. 13]
Honorable Allison H. Goddard United States Magistrate Judge
Before the Court is Defendants' Unopposed Ex Parte Motion for a Continuance of the Continued ENE. ECF No. 13.
On December 21, 2021, following an unsuccessful Early Neutral Evaluation Conference (“ENE”) before Magistrate Judge Allison H. Goddard, the Court issued an order continuing the ENE to March 2, 2022 so that the parties might reconvene to attempt settlement after more discovery had been completed. ECF No. 12. The Court also continued the Case Management Conference (“CMC”) to the same date, in the event the case does not settle at the continued ENE. Id. at 2.
Defendants now request that the second ENE be continued by approximately four more weeks, because Defendants will soon be represented by new counsel, Miles Grant of Grant & Kessler, APC, who will need time to familiarize himself with the case before engaging in settlement discussions. ECF No. 13 at 2. Defendants explain that they intend to file the motion for substitution of counsel this week. Id.
Parties seeking to continue an ENE must demonstrate good cause. ECF No. 8 at 6 (“An ENE may be rescheduled only upon a showing of good cause”); Chmb.R. at 2 (stating that any request for continuance requires “[a] showing of good cause for the request”). See also Fed. R. Civ. P 16(b)(4) (“A schedule may be modified only for good cause and with the judge's consent”). “Good cause” is a non-rigorous standard that has been construed broadly across procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The good cause standard focuses on the diligence of the party seeking to amend the scheduling order and the reasons for seeking modification. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
As an initial matter, the Court notes that the motion is deficient because, contrary to Magistrate Judge Goddard's Chambers Rules requiring requests for continuances to be filed at least seven days before the affected date, the motion was filed only two days before the second ENE. Additionally, although Defendants report that Plaintiff does not oppose the request, the Court disfavors ex parte applications and prefers requests for continuances be filed by joint motion.
Judge Goddard's Civil Chambers Rules can be found at https://www.casd.uscourts.gov/judges/goddard/docs/Goddard%20Civil%20Pretrial%20Pr ocedures.pdf.
Notwithstanding these shortcomings, the Court finds that Defendants have established good cause to continue the ENE and CMC in light of the forthcoming substitution of counsel, and accordingly GRANTS the Motion (ECF No. 13). The continued ENE and CMC are hereby RESET for May 13, 2022 at 2:30 p.m. before Magistrate Judge Allison H. Goddard.
The Court's calendar unfortunately does not allow for the four-week continuance requested by Defendants, so the Court has rescheduled the ENE and CMC for the earliest available date on its calendar thereafter. The Court is amenable to offering any earlier date that becomes available in the interim. The parties should contact the Court at efilegoddard@casd.uscourts.gov if they wish to take advantage of this offer.
As before, the ENE will take place via videoconference using the Court's official Zoom.gov account. The parties are instructed to review the Court's initial Order setting the ENE (ECF No. 8) for guidance regarding the technical use of Zoom.
The Court expects that Defendant Jon Peterson has already complied with the January 26, 2022 deadline to complete the additional production to the Receiver in accordance with the discussion the Court had with the parties during the first ENE. If he has not yet complied, he must do so no later than April 1, 2022 .
No supplemental ENE briefs will be required from the parties. However, if the parties wish to submit additional documents for the Court to review in preparation for the second ENE, they may do so no later than May 6, 2022 . Any such documents should be lodged with the Court by email (not filed) at efilegoddard@casd.uscourts.gov.
In the event the case does not settle at the ENE, the Court will immediately thereafter hold a Case Management Conference (“CMC”) pursuant to Fed.R.Civ.P. 16(b). Appearance of the parties at the CMC is not required. The Court will rely on the parties' existing Joint Case Management Statement to set the case schedule during the CMC.
All other requirements set forth in the Court's prior order setting the first ENE (e.g., requirements for requesting a continuance, the required participation of parties with full settlement authority, the participants' obligations to conduct themselves as though they are appearing in person, etc.) remain in place, and are incorporated by reference as though fully set forth herein. See ECF No. 8.
IT IS SO ORDERED.