Wilson v. Pan Norcal, LLC ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] Sheryl Wilson, No. 2:18-cv-00660-KJM-KJN 12 Plaintiff, ORDER 13 v. 14 Pan NorCal, LLC, et al. 1S Defendants. 16 17 Plaintiff Sheryl Wilson applies ex parte to delay the January 23, 2024 trial date at least six 18 | months due to her attorney’s ongoing recovery from a cardiac emergency. As explained below, 19 | the court denies plaintiff’s ex parte application. 20 | I. BACKGROUND 21 This court held a final pretrial conference about six months ago and set a trial for January 22 | 23, 2024. See Mins., ECF No. 84; Final Pretrial Order, ECF No. 85. About a month and a half 23 | ago, on October 31, 2023, plaintiff’s counsel, J.D. Zink, had a heart attack while he was 24 | recovering from an unrelated surgery. See Ex Parte Appl. at 2-3, ECF No. 95; Zink Decl. at 2, 25 | ECF No. 95-1. After cardiac surgery, he was released from the hospital on November 7 and 26 | continued his representation and trial preparations. Zink Decl. at 2. The day after his release, for 27 | example, he appeared remotely at a court-convened settlement conference along with his partner, 1 Albert Lenzi, and Scott Hubbard, a former attorney1 and paralegal. See Mins., ECF No. 90. And 2 a few weeks later, after defendant moved to set the matter of a non-jury trial, ECF No. 91, Mr. 3 Zink filed Wilson’s opposition, ECF No. 94. 4 On December 8, 2023, about a month after his release from the hospital, Mr. Zink filed 5 the pending ex parte application to continue the trial date “for at least six months from now (if 6 ever)” because he “is unable to do anything of any substance to prepare for a trial[] and would be 7 unable to participate in a trial . . . until he can make a full recovery.” Ex Parte Appl. at 3; see 8 also Zink Decl. at 3. Mr. Zink provides only his own declaration, and no declaration from a 9 medical professional confirming that his medical condition precludes his appearing for trial. 10 Defendants oppose this request. Opp’n, ECF No. 98. After defendants filed their opposition, Mr. 11 Lenzi filed a declaration stating he cannot represent plaintiff at trial because he will be retiring at 12 the end of the year. Lenzi Decl. at 2, ECF No. 100. 13 II. LEGAL STANDARDS 14 The trial in this case can be delayed only by modifying the final pretrial order. After a 15 district court issues a final pretrial order, it may modify that order “only to prevent manifest 16 injustice.” Fed. R. Civ. P. 16(e). A district court should consider four factors when deciding 17 whether to modify a final pretrial order: 18 (1) the degree of prejudice or surprise to the defendants if the order 19 is modified; (2) the ability of the defendants to cure any prejudice; 20 (3) the impact of the modification on the orderly and efficient 21 conduct of the case; and (4) any degree of willfulness or bad faith on 22 the part of the party seeking the modification. 23 Hunt v. Cty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting Byrd v. Guess, 137 F.3d 1126, 24 1131 (9th Cir. 1998), superseded by statute on other grounds as noted in Hunt). “It is the moving 25 party’s burden to show that a review of these factors warrants a conclusion that manifest injustice 26 would result if the pretrial order is not modified.” Byrd, 137 F.3d at 1132. 1 Hubbard represented Wilson in this matter until his suspension from practice in late 2020. See Not. Suspension, ECF No. 41; Designation of Service, ECF No. 44. 1 This standard is distinct from the standard that governs a party’s request to modify a 2 scheduling order under Rule 16(b). To modify a scheduling order, a moving party must 3 demonstrate “good cause,” the touchstone of which is the diligence in pursuing the modification. 4 See Johnson v. Mammoth Recs., Inc., 975 F.2d 604, 609 (9th Cir. 1992). Although the “manifest 5 injustice” standard is distinct from the “good cause” standard, a party’s lack of diligence might 6 undercut its attempts to prove “manifest injustice”; adverse consequences for a party’s case are 7 not the “manifest injustice” Rule 16(e) was designed to prevent, if those consequences arise from 8 a lack of diligence. WLD Investors, Inc. v. Xecom Corp., 35 Fed. App’x 609, 612 (9th Cir. 2002) 9 (unpublished). 10 III. ANALYSIS 11 Plaintiff’s ex parte application cites neither Rule 16(e) nor the legal standard summarized 12 above. Nor does her application show on its own terms that a modification is necessary to 13 prevent manifest injustice under the four-factor test above. All four factors weigh against any 14 further delay. 15 The third and fourth factors weigh most heavily. As for the third factor, the impact of the 16 modification, delaying the trial by six months at the last minute would cause unnecessary 17 expenditures of time and money. See Hunt, 672 F.3d at 617 (affirming denial of motion to 18 modify final pretrial scheduling order filed less than three weeks before trial). Plaintiff also does 19 not guarantee a trial could begin within six months if her request were granted; instead, plaintiff 20 suggests Mr. Zink may never be able to represent her at trial. See Ex Parte Appl. at 3. Nor has 21 plaintiff shown why another attorney could not represent her at trial. As for the fourth factor, 22 apparent willfulness or bad faith, plaintiff does not explain her lack of diligence in waiting over a 23 month to raise the issue. She does not explain why Mr. Zink did not disclose his health problems 24 sooner or seek a continuance sooner or why she did not quickly seek to associate a new attorney 25 after Mr. Zink’s hospitalization. Mr. Zink details his medical condition at length but not why that 26 condition did not cause him to raise the issue sooner. Rather than alerting the court, Mr. Zink 27 continued representing plaintiff, discussing the case with defense counsel and filing briefs related 28 to pretrial motions. 1 The first and second factors listed in Hunt also weigh against plaintiff, though not as 2 | strongly. Plaintiff's request came at the last minute and invites unnecessary delays and 3 | inconveniences, including to several witnesses. See Dompatci Mgmt. Sols. v. Vensure HR, Inc., 4 | No. 17 -02399, 2020 WL 5502359 at *2 (E.D. Cal. Sept. 11, 2020). Plaintiff proposes no means 5 | of mitigating this prejudice and does not explain the tardiness of her application. 6} IV. CONCLUSION 7 For the reasons above, the court denies plaintiff’s ex parte application for a 8 | continuance of trial without prejudice to renewal. Any renewed request must explain the 9 | reason for the delay in requesting a continuance, why manifest injustice would occur if trial 10 | proceeded on the scheduled date and why another attorney could not represent plaintiff at trial. 11 This order resolves ECF No. 95. 12 IT IS SO ORDERED. 13 DATED: December 18, 2023. 14 iit CHIEF ED STATES DISTRICT JUDGE