Opinion
Jeremy Meier, Anthony J. Cortez, GREENBERG TRAURIG, LLP, Sacramento, CA, Attorneys for Plaintiff, And Counter Defendant. MAXIMUS, Inc.
SEUBERT FRENCH FRIMEL & WARNER LLP, William J. Frimel, Attorneys for Defendant and Counter Claimant Nimbus Data Systems, Inc.
STIPULATION AND ORDER TO AMEND THE STATUS (PRE-TRIAL SCHEDULING) ORDER
JOHN A. MENDEZ, District Judge.
IT IS HEREBY STIPULATED by and between Plaintiff and Counter Defendant, MAXIMUS, INC. ("MAXIMUS") and Defendant and Counter Claimant NIMBUS DATA SYSTEMS, INC. ("Nimbus") (collectively the "Parties"), through their respective counsel, that the August 6, 2014 Status (Pre-trial Scheduling) Order be amended to change the current trial date and related deadlines.
I. PROCEDURAL HISTORY
On August 6, 2014, the Court entered a Status (Pre-trial Scheduling) Order setting the following deadlines:
Expert Witness Disclosures: April 10, 2015 Supplemental/Rebuttal Expert Disclosures: April 17, 2015 Discovery Cutoff: June 15, 2015 Dispositive Motion Deadline: July 22, 2015 Final Pre-Trial Conference: September 25, 2015 at 10:00 a.m. Trial: November 2, 2015 at 9:00 a.m.
ECF No. 8.
On or about September 19, 2014, MAXIMUS propounded a first set of discovery requests on Nimbus and served key deposition notices. On or about October 30, 2014, Nimbus served its responses and objections to MAXIMUS's discovery requests. Over approximately the next six months the Parties engaged in extensive meet and confer efforts regarding Nimbus's discovery responses. The Parties have also been meeting and conferring in an attempt to schedule Nimbus's Person Most Knowledgeable deposition as well as the deposition of a key Nimbus employee. The discussions are still ongoing.
II. LEGAL STANDARD
Following the Court entering a Status (Pre-trial Scheduling) Order, Federal Rule of Civil Procedure 16 provides that a pretrial schedule "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). The Parties must demonstrate that they acted with diligence in complying with the scheduling order's deadlines and in seeking leave to amend. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). "Good cause" exists when a deadline "cannot reasonably be met despite the diligence of the party seeking the extension." Johnson, 975 F.2d at 609 (citation omitted). Thus, "Rule 16(b)'s good cause' standard primarily considers the diligence of the party seeking the amendment." Id.; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).
III. DISCUSSION
The Parties stipulate that good cause exists to amend the scheduling order because, despite due diligence and good faith efforts, certain key witnesses have been unavailable for depositions and there has been extensive meet and confer needed before the parties could complete written and oral discovery (past the June 15, 2015 cutoff).
When the Joint Status Report, ECF No. 7, was developed the Parties were unaware of the significant amount of time that would be spent in meeting and conferring in the initial stages of the discovery process and scheduling key depositions. This initial meet and confer process extended over a period of approximately six months. As a result of the time expended on meeting and conferring, the usual and customary pace of litigation was suspended and critical discovery has not been undertaken by either Party. Despite their diligence, the Parties have not been able to complete meaningful discovery efforts and will be prejudiced if they are not afforded adequate time to propound all the necessary discovery, take depositions of relevant witnesses and consult with the expert witnesses that will be required to properly litigate this case. The Parties were also unaware of scheduling conflicts that would arise.
As soon as it became apparent that the time remaining for conducting discovery was not going to be adequate because of the time expended on initial discovery and deposition scheduling, the Parties met and conferred and agreed that a continuance of the trial date would be necessary to accommodate further discovery. The Parties are making this request in a reasonable amount of time in advance of the current trial date so as to give the Court adequate notice with regard to the management of its docket. Also, this is the first such continuance that the Parties have requested or received, and neither Party will be prejudiced by a continuance.
Accordingly, the Parties hereby stipulate to continue the trial date from November 2, 2015 to February 29, 2016, or to such a date thereafter that is convenient for the Court, and that would not include a trial date or any day of trial occurring between March 28-April 8, 2016. The Parties propose the following amended schedule:
Expert Witness Disclosures: August 7, 2015 Supplemental/Rebuttal Expert Disclosures: August 14, 2015 Discovery Cutoff: October 13, 2015 Dispositive Motion Deadline: November 18, 2015 Final Pre-Trial Conference: January 15, 2016 at 10:00 a.m. Trial: February 29, 2016 at 9:00 a.m.
IV. CONCLUSION
Based on the foregoing, the Parties respectfully request that the Court issue an Order amending the Status (Pre-trial Scheduling) Order.
IT IS SO STIPULATED.
ORDER (AS MODIFIED BY THE COURT)*
Pursuant to the stipulation of the Parties herein and for good cause shown, it is hereby ordered that the Status (Pre-trial Scheduling) Order is amended as follows:
Expert Witness Disclosures: August 7, 2015 Supplemental/Rebuttal Expert Disclosures: August 14, 2015 Discovery Cutoff: October 13, 2015 Dispositive Motion: November 18, 2015 Dispositive motion hearing: December 16, 2015 at 9:30 a.m.* Joint pretrial statement due: January 8, 2016* Final Pre-Trial Conference: January 15, 2016 at 10:00 a.m. Trial: February 29, 2016 at 9:00 a.m.
IT IS SO ORDERED.