Faizi v. Temori ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 AHMAD MUKHTAR FAIZI, an individual Case No. 22-cv-04224-VKD and derivatively on behalf of FALAFEL 9 FLAME, INC., ORDER DENYING PLAINTIFF'S 10 Plaintiff, MOTION TO MODIFY CASE SCHEDULE v. 11 Re: Dkt. No. 96 12 BAKTASH TEMORI, et al., Defendants. 13 14 Plaintiff Ahmad Mukhtar Faizi filed a “Verified Shareholder Derivative Complaint for 15 Money Damages and Injunctive Relief,” seeking relief for himself and on behalf of nominal 16 defendant Falafel Flame, Inc. (“Falafel Flame”), against two of Falafel Flame’s directors, Baktash 17 Temori and Masoud Rustakhis, as well as a number of entities, including allegedly unauthorized 18 Falafel Flame restaurants. See Dkt. No. 1. On November 22, 2022, the Court issued a case 19 management order setting deadlines, including a September 19, 2023 deadline for a hearing on 20 dispositive/Daubert1 motions, as well as a January 24, 2024 final pretrial conference, and a 5-day 21 jury trial beginning on February 12, 2024. Dkt. No. 45. On April 7, 2023, the Court granted the 22 parties’ joint request to extend case management deadlines, including an extension of the 23 dispositive/Daubert hearing deadline to November 21, 2023. Dkt. No. 64. In that order, the Court 24 expressly stated that “[t]he final pretrial conference (January 24, 2024) and jury trial (February 12- 25 16, 2024) remain as set in the Court’s November 22, 2022 case management order (Dkt. No. 45).” 26 Id. at 2. 27 1 Mr. Faizi now moves to modify the case schedule to allow him to belatedly file a summary 2 judgment motion, which should have been filed no later than October 17, 2023. Dkt. No. 96. 3 Specifically, Mr. Faizi requests leave to file a motion for summary judgment by December 15, 4 2023. Id. at 5. Defendants oppose that motion. Dkt. No. 98. The Court deemed the matter 5 submitted without oral argument. Dkt. No. 97. Upon consideration of the moving and responding 6 papers, the Court denies Mr. Faizi’s motion to belatedly file a summary judgment motion. 7 A scheduling order “may be modified only for good cause and with the judge’s consent.” 8 Fed. R. Civ. P. 16(b)(4); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th 9 Cir. 1992) (“A scheduling order is not a frivolous piece of paper, idly entered, which can be 10 cavalierly disregarded by counsel without peril.”) (internal quotations and citation omitted). The 11 Rule 16(b) “good cause” standard “primarily considers the diligence of the party seeking the 12 amendment.” Johnson, 975 F.2d at 609. “The district court may modify the pretrial schedule ‘if it 13 cannot reasonably be met despite the diligence of the party seeking the extension.’” Id. (quoting 14 Fed. R. Civ. P. 16 advisory comm. note (1983)). “[C]arelessness is not compatible with a finding 15 of diligence and offers no reason for a grant of relief.” Id. “Although the existence or degree of 16 prejudice to the party opposing the modification might supply additional reasons to deny a motion, 17 the focus of the inquiry is upon the moving party’s reasons for seeking modification.” Id. “If that 18 party was not diligent, the inquiry should end.” Id. 19 Mr. Faizi does not address Rule 16 in his motion. Nor has he made the required showing 20 of diligence. Although Mr. Faizi argues at length about defendants’ conduct in these proceedings, 21 he has not acted diligently in prosecuting this action or in pursuing the present motion seeking 22 relief from the Court’s scheduling order. Indeed, the Court has noted that Mr. Faizi was dilatory 23 in discovery, and waited too long to bring discovery disputes before the Court. See Dkt. No. 77 at 24 6-7; see also Dkt. No. 90 at 3-4. At a November 7, 2023 hearing on a separate matter, Mr. Faizi 25 inquired about an extension for filing a summary judgment motion (which was already weeks 26 overdue), and the Court stated that he would need to file a written request for such relief. See Dkt. 27 No. 89. Yet Mr. Faizi did not file the present motion until over a month later, on December 8, 1 conference, and the February 12, 2024 start of trial. Although Mr. Faizi argues that the Court 2 || “recognized [his] need for an adjustment of dispositive motion deadlines” in its November 13, 3 2023 order setting a deadline for him to move for default judgment as to certain defendants (see 4 || Dkt. No. 96 at 3), that order has no bearing on the issue of Mr. Faizi’s diligence in seeking relief 5 from the Court’s case management schedule. While Mr. Faizi’s counsel state that they are 6 || “relatively newly admitted attorneys” (Dkt. No. 96 at 4), they acknowledge that they failed to 7 calendar the filing deadline for summary judgment motions, and apparently did not make 8 || sufficient effort to familiarize themselves with the requirements of this district’s Local Rules 9 and/or this Court’s Standing Orders. See Dkt. No. 96 at 4, 5. Moreover, the record presented 10 || indicates that granting Mr. Faizi’s present request, which comes at a very late stage in this 11 litigation, would prejudice defendants’ ability to prepare for the trial of this matter that was set 12 || many months ago. See Dkt. No. 98 at 3. 13 In sum, Mr. Faizi has not established the diligence necessary to warrant modification of the 14 || case schedule. Accordingly, his motion for leave to file a belated summary judgment motion is 3 15 || denied. The parties are reminded of their deadlines and obligations under the Court’s Standing a 16 || Order re Pretrial Preparation.” IT IS SO ORDERED. 18 Dated: December 13, 2023 19 Virginia K. DeMarchi 21 United States Magistrate Judge 22 23 24 25 26 27 28 * https://cand.uscourts.gov/standing order_re_pretrial_preparation_august_2023/