Miller v. Bank of America, N.A. ( 2023 )

1 AUSTIN B. KENNEY (State Bar No. 242277) abk@severson.com 2 SEVERSON & WERSON A Professional Corporation 3 The Atrium 19100 Von Karman Avenue, Suite 700 4 Irvine, California 92612 Telephone: (949) 442-7110 5 Facsimile: (949) 442-7118 6 SAMUEL R. MELAMED (State Bar No. 301303) srm@severson.com 7 SEVERSON & WERSON A Professional Corporation 8 595 Market Street, Suite 2600 San Francisco, California 94105 9 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 10 Attorneys for Defendant 11 BANK OF AMERICA, N.A. 12 13 UNITED STATES DISTRICT COURT 14 EASTERN DISTRICT OF CALIFORNIA—FRESNO DIVISION 15 CHARLES MILLER, Case No. 1:21-cv-00337 SKO Hon. Sheila K. Oberto 16 Plaintiff, STIPULATION AND ORDER 17 vs. AMENDING COURT’S 18 BANK OF AMERICA, N.A.; and SCHEDULING ORDER DOES 1-50, inclusive, 19 (Doc. 38) Defendants. 20 21 22 Pursuant to Federal Rule of Civil Procedure 16(b)(4), plaintiff Charles Miller 23 (“Plaintiff”) and defendant Bank of America, N.A. (“Bank of America”) 24 (collectively, the “Parties”), by and through their respective attorneys of record, 25 hereby stipulate and request that the Court enter an order modifying the Court’s 26 December 23, 2022 Scheduling Order, (ECF No. 37), to extend the current fact 27 discovery cutoff and expert witness disclosure dates. The Parties request no other 1 I. REQUEST 2 Good cause exists to modify the fact and expert discovery deadlines in the 3 Scheduling Order under Fed. R. Civ. Proc. 16(b)(4). Aside from the discovery 4 deadlines, the Parties are not seeking any other changes to the current Scheduling 5 Order. (ECF No. 37.) 6 Courts are “given broad discretion in supervising the pretrial phase of 7 litigation.” C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 8 (9th Cir. 2011). Under Rule 16(b), the Court may modify a previous schedule upon 9 a showing of good cause. Good cause under Rule 16(b) exists for continuing the 10 pre-trial dates where the scheduling deadlines cannot be met, despite a party’s 11 diligent efforts. Fed. R. Civ. Proc. 16(b); see also, Johnson v. Mammoth 12 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The “good cause” standard 13 “primarily considers the diligence of the party seeking the amendment.” Johnson, 14 supra, 975 F.2d at 609; U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 15 1526 (9th Cir. 1995). A party demonstrates good cause for the modification of a 16 scheduling order by showing that, even with the exercise of due diligence, he or she 17 was unable to meet the timetable set forth in the order. See Zivkovic v. S. California 18 Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 19 The Parties are diligently litigating the claims and defenses alleged in this 20 Action, but they foresee the need for additional time to complete fact discovery and 21 retain and designate experts. The Parties are currently engaged in written discovery, 22 and in meeting and conferring about the written discovery responses and deadlines. 23 To ensure productive and efficient depositions, the Parties are waiting to conduct 24 party and witness depositions until after written discovery and document 25 productions are underway. In order to allow time for possible discovery motions, 26 the Parties make the instant request, which also allows the Parties additional time to 27 identify and designate experts. Other than these brief extensions to the fact 1 (approximately 30 days), the Parties are not requesting any other changes to the 2 Court’s Scheduling Order. See Declaration of Samuel R. Melamed. 3 This is the first requested extension of any date in the Court’s Scheduling 4 Order. The requested extensions will not affect the trial date for this action, or any 5 other date or deadline contained in the Court’s Scheduling Order. (ECF No. 37.) 6 II. STIPULATION 7 Based on the foregoing, the Parties stipulate as follows: 8 1. Good cause exists to extend the fact discovery cutoff and expert 9 witness disclosures, and neither Party will be prejudiced by the request. 10 2. The deadline to complete all non-expert discovery, including motions 11 to compel any non-expert discovery, shall be continued from November 10, 2023, to 12 January 12, 2024. 13 3. The deadline to disclose all expert witnesses, in writing, shall be 14 continued from January 19, 2024, to February 16, 2024 15 4. The deadline to disclose all rebuttal experts, in writing, shall be 16 continued from February 16, 2024, to March 15, 2024. 17 5. Except as modified above, the Court’s Scheduling Order, ECF No. 37, 18 and all dates and deadlines therein, shall remain unchanged. 19 IT IS SO STIPULATED. 20 21 22 23 24 25 26 27 1 DATED: September 5, 2023 SEVERSON & WERSON A Professional Corporation 2 3 4 By: /s/ Samuel R. Melamed 5 SAMUEL R. MELAMED 6 Attorneys for Defendant BANK OF 7 AMERICA, N.A. 8 9 DATED: September 6, 2023 THE FOLLAND LAW GROUP 10 11 12 By: /s/ Brian N. Folland BRIAN N. FOLLAND 13 14 Attorneys for Plaintiff CHARLES MILLER 15 16 17 ORDER 18 19 Based on the foregoing stipulation of the parties, and for good cause shown 20 (Fed. R. Civ. P. 16(b)(4)), the Scheduling Order (Doc. 37) is hereby MODIFIED as 21 follows: 22 1. The deadline to complete all non-expert discovery, including motions 23 to compel any non-expert discovery, is continued from November 10, 2023, 24 to January 12, 2024; 25 2. The deadline to disclose all expert witnesses, in writing, is continued 26 from January 19, 2024, to February 16, 2024; and 27 3. The deadline to disclose all rebuttal experts, in writing, shall be continued from February 16, 2024, to March 15, 2024. 1 All other dates set forth in the Scheduling Order shall remain unchanged. 2 3 IT IS SO ORDERED. 4 Dated: September 7, 2023 /s/ Sheila K. Oberto . 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27