Frazier v. Ulta Beauty Inc. ( 2021 )

1 KING & SIEGEL LLP JULIAN BURNS KING, Bar No. 298617 2 julian@kingsiegel.com ELLIOTT J. SIEGEL, Bar No.286798 3 elliott@kingsiegel.com ROBERT J. KING, Bar No. 302545 4 robert@kingsiegel.com 724 S. Spring Street, Suite 201 5 Los Angeles, CA 90014 Telephone: 213.465.4802 6 Facsimile: 213.465.4803 Attorneys for Plaintiff 7 SARAH FRAZIER 8 Barbara A. Blackburn, Bar No. 253731 bblackburn@littler.com 9 Nathaniel H. Jenkins, Bar No. 312067 njenkins@littler.com 10 LITTLER MENDELSON P.C. 500 Capitol Mall 11 Suite 2000 Sacramento, California 95814 12 Telephone: 916.830.7200 Fax No.: 916.561.0828 13 Attorneys for Defendant 14 ULTA SALON, COSMETICS & FRAGRANCE, INC. 15 UNITED STATES DISTRICT COURT 16 EASTERN DISTRICT OF CALIFORNIA 17 SACRAMENTO DIVISION 18 19 SARAH FRAZIER, an individual, Case No. 2:20-cv-01608-TLN-DB 20 Plaintiff, JOINT STIPULATION TO MODIFY THE 21 INITIAL SCHEDULING ORDER; v. ORDER THEREON 22 ULTA SALON, COSMETICS, & Complaint filed: 08/11/2020 23 FRAGRANCE, INC., a Delaware corporation and DOES 1-10, inclusive, Amended Complaint filed: 09/10/2020 24 Defendant. 25 26 27 28 1 Plaintiff Sarah Frazier (“Plaintiff”) and Defendant Ulta Salon, Cosmetics & Fragrance, 2 Inc. (“Defendant”) (collectively, the “Parties”), by and through their respective counsel of record, 3 hereby agree and respectfully stipulate as follows: 4 WHEREAS, Plaintiff filed her Complaint on August 11, 2020, but did not serve 5 Defendant with this Complaint. Instead, Plaintiff filed a First Amended Complaint on September 10, 6 2020 (ECF No. 5), and served Defendant with the First Amended Complaint on September 15, 2020, 7 and Defendant answered on October 20, 2020; 8 WHEREAS, on October 29, 2020, the Parties met and conferred regarding Plaintiff’s 9 contention that Defendant’s Answer was deficient, and in turn, Defendant agreed to file an Amended 10 Answer, and did so on November 20, 2020; 11 WHEREAS, on August 12, 2020, this Court issued its Initial Scheduling Order, which 12 requires the Parties to complete discovery no later than 240 days after the last day that a defendant 13 may answer the complaint (which here was October 20, 2020). Accordingly, the current discovery cut 14 off is June 17, 2021 (making the deadline for either party to serve any further discovery requests May 15 18, 2021). 16 WHEREAS, pursuant to Federal Rule of Civil Procedure (“FRCP”) 26(f), the Parties 17 exchanged initial disclosure statements and documents on December 14, 2020. Thereafter, over the 18 next five months, the Parties propounded and responded to written discovery requests, and met and 19 conferred to resolve alleged deficiencies in the discovery responses, including serving amended 20 discovery responses, as well as engaging in efforts to streamline Defendant’s search for Electronically 21 Stored Information (“ESI”) pursuant to Plaintiff’s discovery request. 22 WHEREAS, on May 21, 2021, this Court issued its signed Order accepting Plaintiff’s 23 and Defendant’s Joint Stipulation to Modify the Initial Scheduling Order (the “First Joint 24 Stipulation”). Pursuant to the First Joint Stipulation, the discovery cut off was extended to December 25 14, 2021. 26 WHEREAS, after obtaining the initial discovery extension, the Parties engaged in 27 written discovery efforts and took depositions of available witnesses, but have yet to complete 28 1 depositions. The Parties have attempted to set depositions, but have encountered issues locating 2 pertinent witnesses (namely, former employees of Defendant, including two of Plaintiff’s former 3 managers) and have had issues with witness availability. Specifically, both Parties wish to take the 4 deposition of Tonja Springer, Plaintiff’s former direct manager, and have diligently attempted to serve 5 Ms. Springer with a deposition subpoena, to which Ms. Springer appears to be actively avoiding 6 service of same. Additionally, Defendant took the first part of Plaintiff’s deposition in July 2021, but 7 due to scheduling conflicts, have not been able to complete Plaintiff’s deposition. Accordingly, the 8 Parties will not be able to complete these depositions and/or enforce the deposition subpoena for Ms. 9 Springer prior to the current discovery cut off on December 14, 2021, due to witness unavailability. 10 WHEREAS, the Parties have agreed to pursue early mediation of this matter in hopes 11 to reach a reasonable, global resolution of the lawsuit and to prevent any further need for further 12 written discovery, and trial preparation. However, the Parties have further agreed that prior to 13 submitting to early mediation, the Parties shall each take the limited depositions of Plaintiff and two 14 of Plaintiff’s former managers (who are both former employees of Defendant). As described above, 15 due to witness unavailability, the Parties have not completed these depositions. 16 WHEREAS, good cause exists to modify the Court’s scheduling Order as follows: 17 The district court is given broad discretion in supervising the pretrial phase of 18 litigation…” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and 19 internal quotation marks omitted). “A schedule may be modified only for good cause and with the 20 judge’s consent.” Fed. R. Civ. P. 16(b)(4); see e.g. Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 21 339, 343 (5th Cir. 1990) (court impliedly granted motion to modify scheduling order by allowing 22 summary judgment motion after pretrial motion cut-off date). 23 To establish “good cause,” parties seeking modification of a scheduling order must 24 generally show that, even with the exercise of due diligence, they cannot meet the order’s timetable. 25 Johnson, supra, 975 F.2d at 609; see e.g., Hood v. Hartford Life & Acc. Ins. Co., 567 F.Supp.2d 1221, 26 1224 (E.D. Cal. 2008) (granting request for modification that was promptly made when it became 27 apparent that compliance with the scheduling order was not possible). In determining “good cause,” 28 1 courts also consider the importance of the requested modification, the potential prejudice in allowing 2 the modification, and, conversely, whether denial of the requested modification would result in 3 prejudice. Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (involving 4 amendment of pleadings). 5 Here, good cause exists for an extension of the discovery cut off given the Parties’ 6 inability to complete necessary discovery. This matter was initially filed on August 11, 2020; however 7 Plaintiff did not immediately serve Defendant. By the time Plaintiff served Defendant with her First 8 Amended Complaint, and Defendant filed an Amended Answer and the Parties exchanged their Rule 9 26(f) disclosures, less than six months remained within the then-existing Scheduling Order’s timetable 10 to complete all necessary discovery. Even then, the Parties diligently engaged in written discovery 11 efforts, including a request that Defendant conduct a search of voluminous ESI, which took several 12 months to complete. Once the Parties obtained an extension of the initial discovery deadline, they 13 continued to engage in written discovery efforts and they took depositions of available witnesses. 14 However, the unavailability of pertinent witnesses (including Plaintiff’s former manager) has 15 prevented the parties from completing discovery. In addition, the Parties have agreed to submit to 16 early mediation and hope to reach a global resolution of this matter, but will need additional time in 17 order to complete limited depositions prior to a mediation. If mediation is unsuccessful, the Parties 18 will need additional time to conduct further discovery and prepare for trial. 19 THEREFORE, upon good cause shown, the Parties stipulate to continue the 20 discovery cut off (and related deadlines) out by a minimum of 60 days (which would be February 14, 21 2022 for the discovery cutoff). 22 Dated: December 13, 2021 KING & SIEGEL, LLP 23 24 _/s/ Robert J. King (as approved on 12/13/21) JULIAN BURNS KING 25 ELLIOT J. SIEGEL ROBERT J. KING 26 Attorney for Plaintiff SARAH FRAZIER 27 28 1 || Dated: December 13, 2021 LITTLER MENDELSON P.C. 2 3 /s/Nathaniel H. Jenkins BARBARA A. BLACKBURN 4 NATHANIEL H. JENKINS Attorneys for Defendant 5 ULTA SALON, COSMETICS & FRAGRANCE, INC. 6 ORDER 7 URDEN 8 || PURSUANT TO STIPULATION, IT IS SO ORDERED. /) 10 || Dated: December 13, 2021 \ j yf 1] — fa VX D Troy L. Nunley) United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MENDELSON PIC. 200 Joint Stipulation to Modify the Initial 5 2:20-CV-01608-TLM-DB