Opinion
3:24-cv-00897-H-AHG
08-02-2024
MICHAEL TAGWERKER, Plaintiff, v. AMAZON.COM SERVICES LLC, et al., Defendants.
ORDER RESOLVING OPPOSED JOINT MOTION AND DENYING DEFENDANT'S MOTION TO CONTINUE EARLY NEUTRAL EVALUATION CONFERENCE
[ECF NO. 25]
Allison H. Goddard, United States Magistrate Judge
Before the Court is the parties' Opposed Joint Motion regarding continuing the Early Neutral Evaluation (“ENE”) and Case Management Conference (“CMC”) currently scheduled for August 9, 2024. ECF No 25.
The original motion (ECF No. 21) was not a joint motion, and therefore did not comply with the Court's Chambers Rules. Chmb.R. at 3 (“Any administrative request [for a] ... continuance of ENE [] should be made to the Court by joint motion. If only one party is making the request and the other party or parties do not oppose, they should indicate that in the joint motion. If the other party or parties oppose the request, they should set forth their position in the joint motion.”). The parties withdrew and refiled the motion as an Opposed Joint Motion only after being contacted by court staff. The Court notes that this is the second time the parties disregarded the Court's Chambers Rules and filed non-joint motions (see ECF No. 7), and the second time they were alerted about it by court staff. The Court expects the parties to read and comply with the Court's Chambers Rules in the future.
Parties seeking to continue an ENE must demonstrate good cause. ECF No. 3 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 FED. R. CIV. P. 6(b) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time”). Courts have broad discretion in determining whether there is good cause. See, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992); Liguori v. Hansen, No. 2:11cv492-GMN-CWH, 2012 WL 760747, at *12 (D. Nev. Mar. 6, 2012). The good cause standard focuses on the diligence of the party seeking to amend the scheduling order and the reasons for seeking modification. Johnson, 975 F.2d at 609 (“[T]he focus of the inquiry is upon the moving party's reasons for seeking modification.... If that party was not diligent, the inquiry should end.”) (internal citation omitted). Therefore, “a party demonstrates good cause by acting diligently to meet the original deadlines set forth by the court.” Merck v. Swift Transp. Co., No. CV-16-01103-PHX-ROS, 2018 WL 4492362, at *2 (D. Ariz. Sept. 19, 2018).
Here, Defendant seeks a continuance of the ENE, but Plaintiff opposes. Local Civil Rule 16.1.c requires that an ENE be held in nearly every civil case brought in this Court, including this case. ENEs are part of this Court's commitment to the directive of Fed.R.Civ.P. 1 to “secure the just, speedy, and inexpensive determination of every action and proceeding.” They “are critical in the court's case management process and have a significant impact on early resolution.” ANTHONY J. BATTAGLIA, DISCLOSURE AND DISCOVERY MANUAL, at 165 (2024), https://www.casd.uscourts.gov/Judges/battaglia/docs/Battaglia%20Disclosure%20and%2 0Discovery%20Manual%20Under%20the%20Federal%20Rules%20of%20Ciyil%20Proc edure.pdf.
The Court exercised its discretion to hold this ENE by video conference in order to reduce the cost and burden of appearing. Thus, the Court's expectation is that the parties and counsel log on to a Zoom conference from a location that is convenient to them and be prepared to spend approximately 2.5 hours speaking with the Court. This seems like a simple ask, considering the Court will stand ready throughout the litigation to mediate, research, and resolve any number of disputes between the parties.
Nonetheless, Defendant argues that the ENE is premature, and seeks a 90-day continuance. ECF No. 25 at 2. Defendant contends that “[a]n ENE may only be productive when the Court and parties are able to evaluate the merits, viability, and value of Plaintiff's claims. Currently, the parties cannot do so.” Id. at 3. The basis for contending that an ENE will not be productive is an email exchange between counsel regarding a formal settlement demand. Id. at 3-4. Unfortunately, the email exchange indicates to the Court that the relationship between the parties' counsel is already strained and testing the bounds of civility.
The Court disagrees that an ENE is premature or would be unproductive, even if the parties do not believe they are in a position to make specific offers. As explained in the Court's Order setting the ENE: “[t]he purpose of the ENE is to permit an informal discussion between the attorneys and the settlement judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case.” ECF No. 11 at 3 (emphasis added). The Court uses the ENE to have candid and confidential discussions with counsel and the parties about the facts of the lawsuit and the downsides of protracted litigation, assess the strength of the party witnesses, and determine a prudent path forward. The Court is pragmatic and recognizes that many cases require some discovery before settlement is attainable, but the ENE process can set the case on a course for settlement by identifying what discovery is necessary before the parties can have serious settlement discussions, how to obtain that discovery in the most efficient manner, and getting a sense of what each party's goals are in the litigation.
This case also presents unique issues that warrant an ENE and CMC at this time. Defendant complains that Plaintiff's Rule 26 initial disclosures are deficient. The Court can discuss this with the parties and set deadlines, if necessary, for Plaintiff to supplement those disclosures. Moreover, fact discovery opened on June 11, 2024, when the parties conducted their Rule 26(f) conference. See ECF No. 9-1 at 2. The parties have had 52 days to serve and respond to initial discovery, and will have had 59 days to do so before the August 9, 2024, ENE. The parties should be prepared to explain to the Court why “virtually no discovery has occurred in this matter,” ECF No. 25 at 2, and why they have apparently not taken any steps to obtain information for meaningful settlement discussions even though the case was originally filed in state court in October 2023. The Court recognizes that there is a Motion to Remand and a Motion to Dismiss pending, but neither of those motions will dispose of the claims and there is no need to continue delaying progress in the case further.
The Court notes that Defendant served initial written discovery in the state action, to which Plaintiff responded (see ECF No. 25 at 5). The parties also requested a prior continuance of the ENE to obtain medical records for Plaintiff, and represented to the Court that efforts to obtain the records were underway. ECF No. 9 at 2. The Court will expect an update on these discovery efforts as well.
As such, Defendant's motion to continue the ENE is DENIED. The ENE and CMC set for August 9, 2024, and all pre-conference deadlines, remain on calendar.
IT IS SO ORDERED.