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-TLM-DB 20 Plaintiff, Stipulation and Order to Further 21 Modify the Scheduling Order v. 22 Complaint filed: 08/11/2020 ULTA SALON, COSMETICS, & 23 FRAGRANCE, INC., a Delaware corporation Amended Complaint filed: 09/10/2020 and DOES 1-10, inclusive,, 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 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 previous discovery cut off on December 14, 2021, due to witness unavailability. 10 Accordingly, on December 15, 2021, this Court issued its signed Order accepting Plaintiff’s and 11 Defendant’s Second Joint Stipulation to Modify the Initial Scheduling Order. 12 WHEREAS, Defendant attempted to serve four pertinent witnesses with deposition 13 subpoenas, all former employees of Defendant, including Plaintiff’s former manager, Tonja Springer, 14 and other relevant managers, Chris Galway-Howard and Carolyn Manick, along with Plaintiff’s 15 alleged harasser, Shalyce Beck, all of whom are pertinent and critical witnesses to Plaintiff’s 16 allegations. Despite diligent efforts, Defendant was not able to effectuate service on any of these 17 individuals. 18 WHEREAS, on February 2, 2022, this Court issued its signed Order accepting 19 Plaintiff’s and Defendant’s Joint Stipulation to Modify the Initial Scheduling Order (the “Third Joint 20 Stipulation”). Pursuant to the Third Joint Stipulation, the discovery cut off was extended to May 16, 21 2021. 22 WHEREAS, several key deposition remain unscheduled due to service difficulties and 23 the parties agree to a brief thirty (30) day extension of the discovery cut-off in order to complete 24 discovery. 25 WHEREAS, the Parties still intend to pursue early mediation of this matter in hopes 26 to reach a reasonable, global resolution of the lawsuit and to prevent any further need for further 27 written discovery, and trial preparation. However, the Parties have further agreed that in order to have 28 1 a productive mediation, the depositions of the individuals listed above need to be taken. As described 2 above, due to witness unavailability and/or inability to effectuate service of deposition subpoenas 3 pursuant to FRCP Rule 45, the Parties have not completed these depositions. 4 WHEREAS, good cause exists to modify the Court’s scheduling Order as follows: 5 The district court is given broad discretion in supervising the pretrial phase of 6 litigation…” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and 7 internal quotation marks omitted). “A schedule may be modified only for good cause and with the 8 judge’s consent.” Fed. R. Civ. P. 16(b)(4); see e.g. Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 9 339, 343 (5th Cir. 1990) (court impliedly granted motion to modify scheduling order by allowing 10 summary judgment motion after pretrial motion cut-off date). 11 To establish “good cause,” parties seeking modification of a scheduling order must 12 generally show that, even with the exercise of due diligence, they cannot meet the order’s timetable. 13 Johnson, supra, 975 F.2d at 609; see e.g., Hood v. Hartford Life & Acc. Ins. Co., 567 F.Supp.2d 1221, 14 1224 (E.D. Cal. 2008) (granting request for modification that was promptly made when it became 15 apparent that compliance with the scheduling order was not possible). In determining “good cause,” 16 courts also consider the importance of the requested modification, the potential prejudice in allowing 17 the modification, and, conversely, whether denial of the requested modification would result in 18 prejudice. Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (involving 19 amendment of pleadings). 20 Here, good cause exists for an extension of the discovery cut off given the Parties’ 21 inability to complete necessary discovery. This matter was initially filed on August 11, 2020; however 22 Plaintiff did not immediately serve Defendant. By the time Plaintiff served Defendant with her First 23 Amended Complaint, and Defendant filed an Amended Answer and the Parties exchanged their Rule 24 26(f) disclosures, less than six months remained within the then-existing Scheduling Order’s timetable 25 to complete all necessary discovery. Even then, the Parties diligently engaged in written discovery 26 efforts, including a request that Defendant conduct a search of voluminous ESI, which took several 27 months to complete. Once the Parties obtained an extension of the initial discovery deadline, they 28 1 || continued to engage in written discovery efforts and they took depositions of available witnesses. 2 || However, the unavailability of pertinent witnesses (including Plaintiffs former manager and alleged 3 || harasser) has prevented the parties from completing discovery. In addition, the Parties have agreed to 4 || submit to early mediation and hope to reach a global resolution of this matter, but will need additional 5 || time in order to complete limited depositions prior to a mediation. If mediation is unsuccessful, the 6 || Parties will need additional time to conduct further discovery and prepare for trial. 7 THEREFORE, upon good cause shown, the Parties stipulate to continue the 8 || discovery cut off (and related deadlines) out by a minimum of 45 days (which would be June 30, 2022 9 || for the discovery cutoff). 10 || Dated: May 9, 2022 KING & SIEGEL, LLP 1] 12 _/s/Robert J_ King JULIAN BURNS KING 13 ELLIOT J. SIEGEL ROBERT J. KING 14 Attorney for Plaintiff 5 SARAH FRAZIER 16 Dated: May 9, 2022 LITTLER MENDELSON P.C. 17 18 /s/Nathaniel H. Jenkins 19 BARBARA A. BLACKBURN NATHANIEL H. JENKINS 20 Attorneys for Defendant ULTA SALON, COSMETICS & FRAGRANCE, 21 INC. 22 ORDER 23 PURSUANT TO STIPULATION, IT IS SO ORDERED. 24 □□ /) 25 \ / Dated: May 10, 2022 “ bighay 26 a AWN NZ Troy L. Nunley } 27 United States District Judge 28 | Stipulation and Order to Further 5 2:20-CV-01608-TLN-DB