SinglePoint Direct Solar LLC v. Curiel ( 2022 )

1 WO 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 SinglePoint Direct Solar, LLC; and No. CV-21-01076-PHX-JAT (Lead) SinglePoint, Inc., No. CV-21-00989-PHX-JAT (Cons.) 9 Plaintiffs, ORDER 10 v. 11 Pablo Diaz Curiel; Kjelsey Johnson; Brian 12 Odle; Solar Integrated Roofing Corporation; USA Solar Network, LLC; David Massey; 13 Elijah Chaffino; Christina Berume; and Jessica Hernandez, 14 Defendants. 15 16 AND RELATED COUNTERCLAIM. 17 18 Pending before the Court is a joint motion to extend the remaining Rule 16 deadlines 19 (Doc. 177), which the parties have conceded is in fact a motion to reconsider (id. at 2) the 20 Court’s August 31, 2022 order extending deadlines which specifically stated: “there will be NO 21 FURTHER EXTENSIONS of the dispositive motion deadline.” (Doc. 166). Preliminarily 22 Court finds that as a motion to reconsider, the parties’ request is untimely because motions to 23 reconsider are due within 14 days of the order they seek to have reconsidered. LR Civ. 7.2(g). 24 Alternatively, the joint motion fails on the merits. As the parties correctly note, to show 25 good cause to extend the Rule 16 deadlines, one element they must meet is “that [the movant] 26 was diligent in seeking amendment of the Rule 16 [O]rder, once it became apparent that [the 27 movant] could not comply with the [O]rder.” (Doc. 177 at 4 (quoting Jackson v. Laureate, Inc., 28 186 F.R.D. 605, 608 (E.D. Cal. 1999)). Here, the parties’ reason for seeking a fifth extension 1 of the Rule 16 deadlines (previous extensions were granted at Docs. 139, 151, 157 and 166) is 2 that they chose to not engage in any discovery while a motion to disqualify counsel was 3 pending. However, the motion to disqualify was filed September 26, 2022, and ruled on 4 December 5, 2022, yet this joint motion to extend deadlines was not filed until December 13, 5 2022. The parties must have known that they were squandering the entire August 2022 6 extension by electing (without moving to stay or otherwise informing the Court) to not engage 7 in any discovery for the 70 days the motion to disqualify was pending. Yet they did not file 8 this joint motion until 78 days after the motion to disqualify was filed. 9 Moreover, the response to the motion to disqualify dismissed the substance of the 10 motion as a mere “litigation tactic”. (Doc. 172 at 18). The Court finds no cause as to why the 11 counsel that made that argument would have agreed (without Court approval) to forego all 12 discovery during the pendency of the motion. Further, the parties’ premise–that anyone can 13 file a motion to disqualify counsel and immediately have a stay of the case–is not legally 14 supported. Such a system would allow parties (exactly like these parties) to fail to diligently 15 pursue discovery and then claim a need for an extension of deadlines that the Court has 16 specifically said it will not grant, purely as a result of their own “litigation tactics”. Any stay 17 must be granted by the Court, and none was granted in this case. Additionally, there was no 18 reason why Plaintiff could not have proceeded with discovery with all Defendants while 19 Plaintiff took no position on the motion to disqualify among defense counsel. In other words, 20 had the parties requested a stay, it would have been denied. 21 Additionally, as the parties correctly state, another element to showing good cause to 22 extend the Rule 16 deadlines is, “[the movant’s] noncompliance with a Rule 16 deadline 23 occurred or will occur, notwithstanding [the movant’s] diligent efforts to comply, because of 24 the development of matters which could not have been reasonably foreseen or anticipated at 25 the time of the Rule 16 scheduling conference….” (Doc. 177 at 4 (quoting Jackson v. Laureate, 26 Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)). In the order granting a fourth request for extension 27 of time, this Court stated: 28 The Court is very concerned that although the parties have known about 1 the need to establish an ESI protocol since they filed their joint proposed case management plan (Doc. 108 at 4-6) and have already received one extension of 2 these deadlines specifically related to ESI (Doc. 155), they nonetheless still have not started their ESI discovery (Doc. 165 at 2). The parties’ failure to allot 3 adequate time to engage in ESI discovery within the one and one-half years between the Rule 16 conference and the discovery deadline will NOT be a basis 4 for any further extensions. 5 (Doc. 166 n.2). Yet, this joint motion for a fifth extension of the Rule 16 deadlines indicates 6 that the parties still have not agreed to ESI search terms, much less actually started ESI 7 discovery. (Doc. 177 at 3). Frankly, the Court is stunned that the parties both failed to heed 8 all of the Court’s warnings about the need to move diligently to finish discovery, and that the 9 parties have known, since at least October 8, 2021,1 that they seek to engage in significant ESI 10 discovery, yet they have not even started such discovery. The need to engage in ESI discovery 11 was obviously known at the time of the Rule 16 conference, and the state of this record shows 12 absolutely no diligence by the parties in attempting to comply with the deadlines in the original 13 Rule 16 order or any of four extensions. 14 Thus, the parties having failed two of the three prongs in Jackson, the joint motion will 15 be denied. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“the focus of 16 the inquiry is upon the moving party’s reasons for seeking modification. If that party was not 17 diligent, the inquiry should end.”). 18 Finally, none of the foregoing can be a surprise to the parties. The Court advised them 19 of this two-year deadline for dispositive motions in its June 28, 2021 order, in bold. (Doc. 21 20 at 2). Then, at the Rule 16 conference, the Court explained to the parties the deadlines from 21 the Civil Justice Reform Act (see 28 U.S.C. § 476) and reiterated this two-year deadline for 22 dispositive motions. (Doc. 121). Then, in the August 31, 2022 order, the Court for a third 23 time reiterated this deadline with both force and urgency. (Doc. 166 at 2 (“as the Court stated 24 at the Scheduling Conference on October 20, 2021, the Court will not grant extensions of the 25 26 1 This is the date the case management plan was filed by the parties detailing the anticipated ESI discovery. (Doc. 108). However, the Court uses “at least” because this case began with 27 the filing of a TRO specifically dealing with ESI issues. This Court issued multiple orders in the first three weeks of this case dealing with control of various forms of ESI. Thus, the parties 28 have known, since the day the complaint was filed, that significant ESI was going to be involved 1 || dispositive motion deadline beyond the two-year anniversary of the case being filed. This case 2 || was filed June 21, 2021. Accordingly, there will be NO FURTHER EXTENSIONS of the 3 || dispositive motion deadline.”)). ‘Thus, the Court finds there can be no prejudice to the parties, 4 || including Plaintiff, when they have been well aware of these deadlines and simply chose not to 5 || diligently engage in discovery from the outset of this case, including while the disqualification 6 || motion was pending. 7 Accordingly, 8 IT IS ORDERED that joint motion (fifth) to extend unexpired Rule 16 deadlines 9 || (Doc. 177) is denied. 10 Dated this 15th day of December, 2022. 11 12 James A. Teilborg 14 Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _4.