Frazier v. Ulta Beauty Inc. ( 2022 )

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, STIPULATION AND ORDER TO 21 FURTHER MODIFY THE SCHEDULING v. ORDER 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 & 2 Fragrance, Inc. (“Defendant”) (collectively, the “Parties”), by and through their respective counsel of 3 record, 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 discovery cut off was 14 June 17, 2021 (making the deadline for either party to serve any further discovery requests May 18, 15 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 depositions. The Parties have attempted to set depositions, but have encountered issues locating 1 pertinent witnesses (namely, former employees of Defendant, including two of Plaintiff’s former 2 managers) and have had issues with witness availability. Specifically, both Parties wish to take the 3 deposition of Tonja Springer, Plaintiff’s former direct manager, and have diligently attempted to serve 4 Ms. Springer with a deposition subpoena, to which Ms. Springer appears to be actively avoiding 5 service of same. Additionally, Defendant took the first part of Plaintiff’s deposition in July 2021, but 6 due to scheduling conflicts, have not been able to complete Plaintiff’s deposition. Accordingly, the 7 Parties will not be able to complete these depositions and/or enforce the deposition subpoena for Ms. 8 Springer prior to the previous discovery cut off on December 14, 2021, due to witness unavailability. 9 Accordingly, on December 15, 2021, this Court issued its signed Order accepting Plaintiff’s and 10 Defendant’s second Joint Stipulation to Modify the Initial Scheduling Order. 11 WHEREAS, Defendant has diligent attempted to serve four pertinent witnesses with 12 deposition subpoenas, all former employees of Defendant, including Plaintiff’s former manager, Tonja 13 Springer, and other relevant managers, Chris Galway-Howard and Carolyn Manick, along with 14 Plaintiff’s alleged harasser, Shalyce Beck, all of whom are pertinent and critical witnesses to Plaintiff’s 15 allegations. Despite diligent efforts, Defendant has not yet been able to effectuate service on any of 16 these individuals. Defendant’s process server has informed defense counsel that Ms. Springer in 17 particular, is actively evading service. As for the other three individuals, Defendant is attempting to 18 locate these individuals, since their last known addresses on file with Defendant appear to be no longer 19 their current addresses. Additionally, Defendant still needs to complete Plaintiff’s deposition, but has 20 had difficult scheduling the deposition due to the holidays, counsels’ litigation calendars, and 21 Plaintiff’s own work schedule, which is set four weeks in advance. 22 WHEREAS, the Parties still intend to pursue early mediation of this matter in hopes 23 to reach a reasonable, global resolution of the lawsuit and to prevent any further need for further 24 written discovery, and trial preparation. However, the Parties have further agreed that in order to have 25 a productive mediation, the depositions of the individuals listed above need to be taken. As described 26 above, due to witness unavailability and/or inability to effectuate service of deposition subpoenas 27 pursuant to FRCP Rule 45, the Parties have not completed these depositions. 28 WHEREAS, good cause exists to modify the Court’s scheduling Order as follows: 1 The district court is given broad discretion in supervising the pretrial phase of 2 litigation…” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and 3 internal quotation marks omitted). “A schedule may be modified only for good cause and with the 4 judge’s consent.” Fed. R. Civ. P. 16(b)(4); see e.g. Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 5 339, 343 (5th Cir. 1990) (court impliedly granted motion to modify scheduling order by allowing 6 summary judgment motion after pretrial motion cut-off date). 7 To establish “good cause,” parties seeking modification of a scheduling order must 8 generally show that, even with the exercise of due diligence, they cannot meet the order’s timetable. 9 Johnson, supra, 975 F.2d at 609; see e.g., Hood v. Hartford Life & Acc. Ins. Co., 567 F.Supp.2d 1221, 10 1224 (E.D. Cal. 2008) (granting request for modification that was promptly made when it became 11 apparent that compliance with the scheduling order was not possible). In determining “good cause,” 12 courts also consider the importance of the requested modification, the potential prejudice in allowing 13 the modification, and, conversely, whether denial of the requested modification would result in 14 prejudice. Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (involving 15 amendment of pleadings). 16 Here, good cause exists for an extension of the discovery cut off given the Parties’ 17 inability to complete necessary discovery. This matter was initially filed on August 11, 2020; however 18 Plaintiff did not immediately serve Defendant. By the time Plaintiff served Defendant with her First 19 Amended Complaint, and Defendant filed an Amended Answer and the Parties exchanged their Rule 20 26(f) disclosures, less than six months remained within the then-existing Scheduling Order’s timetable 21 to complete all necessary discovery. Even then, the Parties diligently engaged in written discovery 22 efforts, including a request that Defendant conduct a search of voluminous ESI, which took several 23 months to complete. Once the Parties obtained an extension of the initial discovery deadline, they 24 continued to engage in written discovery efforts and they took depositions of available witnesses. 25 However, the unavailability of pertinent witnesses (including Plaintiff’s former manager and alleged 26 harasser) has prevented the parties from completing discovery. In addition, the Parties have agreed to 27 submit to early mediation and hope to reach a global resolution of this matter, but will need additional 28 time in order to complete limited depositions prior to a mediation. If mediation is unsuccessful, the 1 || Parties will need additional time to conduct further discovery and prepare for trial. 2 THEREFORE, upon good cause shown, the Parties stipulate to continue the 3 || discovery cut off (and related deadlines) out by a minimum of 90 days (which would be May 16, 2022 4 || for the discovery cutoff). 5 || Dated: February 1, 2022 KING & SIEGEL, LLP 6 7 /s/Robert J. King (as approved on 1/31/22) JULIAN BURNS KING 8 ELLIOT J. SIEGEL ROBERT J. KING 9 Attorney for Plaintiff 10 SARAH FRAZIER 1] Dated: February 1, 2022 LITTLER MENDELSON P.C. 12 13 /s/Nathaniel H. Jenkins 14 BARBARA A. BLACKBURN NATHANIEL H. JENKINS 15 Attorneys for Defendant ULTA SALON, COSMETICS & FRAGRANCE, 16 INC. 17 ORDER 18 PURSUANT TO STIPULATION, IT IS SO ORDERED. 19 /) 20 , ( / DATED: February 1, 2022 \ | 21 “ J 22 Troy L. Nunley) □ 33 United States District Judge 24 25 26 27 28 ca 35814 || Stipulation and Order 5 2:20-CV-01608-TLM-DB