Burton v. Wal-Mart Associates, Inc. ( 2023 )

1 Roman Otkupman, SBN 249423 Roman@OLFLA.com 2 Nidah Farishta, SBN 312360 Nidah@OLFLA.com 3 OTKUPMAN LAW FIRM, A LAW CORPORATION 4 5743 Corsa Ave, Suite 123 Westlake Village, CA 91362 5 Telephone: (818) 293-5623 Facsimile: (888) 850-1310 6 Attorneys for Plaintiff 7 MARISSA BURTON 8 JAMES T. CONLEY, SBN 224174 9 james.conley@ogletree.com HAIDY M. RIVERA, SBN 332117 10 haidy.rivera@ogletree.com OGLETREE, DEAKINS, NASH, 11 SMOAK & STEWART, P.C. 500 Capitol Mall, Suite 2500 12 Sacramento, CA 95814 Telephone: 916-840-3150 13 Facsimile: 916-840-3159 14 Attorneys for Defendant WAL-MART ASSOCIATES, INC. 15 UNITED STATES DISTRICT COURT 16 EASTERN DISTRICT OF CALIFORNIA 17 18 MARISSA BURTON, an individual, Case No. 2:22-cv-02243-TLN-KJN 19 Plaintiff, JOINT STIPULATION AND 20 ORDER TO AMEND INITIAL vs. PRETRIAL SCHEDULING ORDER 21 WAL-MART ASSOCIATES, INC., a 22 Delaware Corporation, and DOES 1 through Action Filed: November 15, 2022 100, inclusive, Trial Date: None set 23 Defendants. 24 25 26 27 28 1 Plaintiff Marissa Burton (“Plaintiff”) and Defendant Wal-Mart Associates, Inc. 2 (“Defendant”) (Plaintiff and Defendant, collectively “Parties”), hereby stipulate and ask the Court to 3 modify the Initial Pretrial Scheduling Order (ECF No. 2) in accordance with the stipulated scheduled 4 set forth herein and in light of the good cause set forth herein. 5 WHEREAS, Plaintiff filed her Complaint on November 15, 2022, the matter was removed 6 to this court on December 16, 2022; 7 WHEREAS, on December 16, 2022, this Court issued its Initial Pretrial Scheduling Order, 8 which requires the Parties to complete discovery no later than 240 days after the last day that a 9 defendant may answer the complaint. Accordingly, the current discovery cut off was August 14, 10 2023 and the parties were in heavy settlement discussions at that time. 11 WHEREAS, the Parties have and are continuing to resolve this matter without wasting 12 resources that can be put towards bridging the gap this with the hopes of early resolution of the 13 claims. 14 WHEREAS, the Parties are engaged in written discovery, but have yet to take depositions to 15 save costs. The Parties have set depositions and are meeting and conferring on scheduling and 16 availability as well as settlement. Both Parties wish to take depositions if they cannot settle this 17 matter in the next 45 days through further written discovery that is pending and will be completed 18 by then. But, will not be able to do so given the current discovery cut off. 19 WHEREAS, good cause exists to modify the Court’s scheduling Order as follows: 20 The district court is given broad discretion in supervising the pretrial phase of litigation…” 21 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal 22 quotation marks omitted). “A schedule may be modified only for good cause and with the judge’s 23 consent.” Fed. R. Civ. P. 16(b)(4); see e.g. Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 339, 343 24 (5th Cir. 1990) (court impliedly granted motion to modify scheduling order by allowing summary 25 judgment motion after pretrial motion cut-off date). 26 To establish “good cause,” parties seeking modification of a scheduling order must generally 27 show that, even with the exercise of due diligence, they cannot meet the order’s timetable. Johnson, 28 1 (E.D. Cal. 2008) (granting request for modification that was promptly made when it became apparent 2 that compliance with the scheduling order was not possible). In determining “good cause,” courts 3 also consider the importance of the requested modification, the potential prejudice in allowing the 4 modification, and, conversely, whether denial of the requested modification would result in 5 prejudice. Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (involving 6 amendment of pleadings). 7 Here, good cause exists for a modification of the Court’s scheduling order given the Parties’ 8 inability to complete necessary discovery within the Scheduling Order’s timetable. This matter was 9 initially filed on November 15, 2022; the matter was removed on December 16, 2022 and the initial 10 pretrial scheduling order was set. The parties have been engaged in active settlement discussions this 11 entire time. The Parties are currently engaged in written discovery efforts. Early attempts to resolve 12 this matter have been unsuccessful to date, but there is a good faith basis to believe that the matter 13 can be resolved in the next 45 days. If not, the Parties now need additional time to conduct further, 14 and complete, discovery, dispositive motions, and expert discovery as well as prepare for trial. 15 WHEREAS, the Parties believe that a continuance of all pending dates and deadlines, is in 16 the best interests of the Parties and the Court, as it will conserve all resources and ensure that the 17 Parties are able to effectively mediate this matter in an attempt to achieve a full and complete 18 resolution; 19 WHEREAS, for these reasons, good cause exists to extend both the non-expert and expert 20 discovery deadlines by 240 days; 21 WHEREAS, for these same reasons, the Parties believe that all other pretrial dates and 22 deadlines should likewise be extended by at least 240 days to conform the pretrial schedule to the 23 discovery deadlines; 24 NOW THEREFORE, the Parties, by and through their undersigned counsel, do hereby agree 25 and request that the dates and deadlines in the Scheduling Order set forth above be amended as 26 follows: 27 Non-Expert Discovery Cutoff: April 12, 2024 28 1 Rebuttal Expert Disclosure: July 12, 2024 2 Dispositive Motion Filing Deadline: October 9, 2024 3 4 IT IS SO STIPULATED. 5 DATED: November 22, 2023 OTKUPMAN LAW FIRM, A LAW 6 CORPORATION 7 8 By: _/s/ Roman Otkupman_________________________ Roman Otkupman 9 Nidah Farishta 10 Attorneys for Plaintiff MARISSA BURTON 11 DATED: November 22, 2023 OGLETREE, DEAKINS, NASH, SMOAK & 12 STEWART, P.C. 13 14 By: /s/ (as authorized on ____November 22, 2023 James T. Conley 15 Haidy M. Rivera 16 Attorneys for Defendant WAL-MART 17 ASSOCIATES, INC. 18 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 Good cause appearing, the Court hereby modifies the Scheduling Order to extend discovery 3 || deadlines and all other dates in the Scheduling Order for 240 days as follows: 4 Non-Expert Discovery Cutoff: April 12, 2024 5 Expert Disclosure: June 12, 2024 6 Rebuttal Expert Disclosure: July 12, 2024 7 Dispositive Motion Filing Deadline: October 9, 2024 8 / 9 ||1T IS SO ORDERED. “ \/ of Lr 10 || DATED: November 27, 2023 —AZNS ZN Troy L. Nunley> □ 1] United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A UN AT AAR □□ □□ UI