Bloom v. City of San Diego ( 2019 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BLOOM, et al., Case No.: 17cv2324-AJB (MSB) 12 Plaintiffs, ORDER DENYING EX PARTE 13 v. APPLICATION TO VACATE CLASS DISCOVERY AND CLASS CERTIFICATION 14 CITY OF SAN DIEGO, et al., DEADLINES CONTAINED IN THE THIRD 15 Defendants. AMENDED SCHEDULING ORDER PENDING DECISION ON PLAINTIFF’S 16 MOTION TO FILE SECOND AMENDED 17 COMPLAINT [ECF NO. 98] 18 19 On November 25, 2019, Plaintiffs submitted their “Ex Parte Application to Vacate 20 Class Discovery and Class Certification Deadlines Contained in the Third Amended 21 Scheduling Order Pending Decision on Plaintiff’s Motion to File Second Amended 22 Complaint.” (ECF No. 98.) In their application, Plaintiffs note that their “Motion for 23 Leave to File Second Amended Complaint” [ECF No. 93], which seeks to add causes of 24 action to challenge the new Vehicle Habitation Ordinance (“New VHO”), is now pending 25 before Judge Battaglia with a hearing date of February 13, 2020. (ECF No. 98 at 3.) 26 Plaintiffs’ counsel asserts that if discovery proceeds under the current schedule and 27 Judge Battaglia later grants Plaintiffs’ pending motion, Plaintiffs, who are all people with 2 Defendants oppose the instant request in light of Defendants’ opposition to Plaintiffs’ 3 request to amend their complaint. (Id. at 4.) Defendants’ counsel filed an opposition on 4 December 3, 2019, arguing that Plaintiffs “have not shown good cause to justify vacating 5 the current deadlines based on their proposed second amended complaint.” (ECF No. 6 101 at 3.) 7 A scheduling order “may be modified only for good cause and with the judge’s 8 consent.” Fed. R. Civ. P. 16(b)(4). This good cause standard “primarily considers the 9 diligence of the party seeking the amendment. The district court may modify the 10 pretrial schedule ‘if it cannot reasonably be met despite the diligence of the party 11 seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th 12 Cir. 1992) (citing Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment) and 13 collecting cases). “If that party was not diligent, the inquiry should end.” (Id.) 14 Plaintiffs have not demonstrated good cause for their request to vacate the class 15 discovery and class certification deadlines. Plaintiffs’ counsel points out that the San 16 Diego City Council approved the New VHO on May 14, 2019. (ECF No. 98-1 at 3; see also 17 ECF No. 101-1 at 2.) The New VHO had been approved for nearly four months on 18 September 11, 2019, when the parties filed a joint motion asking the Court to set a class 19 discovery deadline of November 22, 2019 and a class certification motion filing deadline 20 of December 20, 2019. (See ECF No. 86 at 2.) The New VHO had been approved for 21 over five months on October 22, 2019, when the parties filed a joint motion asking to 22 continue the class discovery and class certification motion filing deadlines by thirty days 23 to December 22, 2019 and January 20, 2020 respectively. (See ECF No. 91.) Neither of 24 these motions referred to Plaintiffs’ intention to amend the Complaint. It was not until 25 November 18, 2019, over six months after the City Council approved the New VHO, that 26 Plaintiffs filed their “Motion for Leave to File Second Amended Complaint.” (See ECF 27 No. 93.) 2 explains that Plaintiffs have “vigilantly been pursuing their class discovery,” noting that 3 they served written discovery and a deposition notice on October 16, 2019, (ECF No. 98- 4 1 at 3), she does little to demonstrate how Plaintiffs were diligent in seeking to amend 5 their complaint to include causes of action challenging the New VHO. Counsel simply 6 asserts first, that the parties were negotiating the case for several months and second, 7 that Plaintiffs have acted diligently since returning to active litigation to prepare and file 8 their Second Amended Complaint. (Id. at 3.) However, Plaintiffs’ counsel does not 9 explain when counsel began drafting the Second Amended Complaint or why it took 10 over two months after the resumption of litigation to seek to file it. Further, it is unclear 11 why Plaintiffs asked for the present schedule if they intended to file a new Complaint 12 that would change the scope of class discovery. Having waited until just over one 13 month prior to the date Plaintiffs requested for close of fact discovery to seek to file an 14 amended complaint, Plaintiffs now ask this Court to vacate the scheduling order, to 15 avoid the possibility that Plaintiffs may have to sit for two depositions in the event that 16 Judge Battaglia permits Plaintiffs to file a new complaint. Plaintiffs’ concern could well 17 have been addressed by promptly filing their motion to file an amended complaint, or 18 by considering the need to amend the complaint when requesting a scheduling order. 19 Plaintiffs elected not to do that. Whether Plaintiffs may have to sit for additional 20 depositions is speculative at this point, and in light of Plaintiffs’ lack of diligence, does 21 not justify vacating the scheduling order. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 For the foregoing reasons, Plaintiffs’ motion is DENIED. Deadlines for class 2 || discovery cut-off and the filing of class certification motions remain as previously set. 3 || (See ECF No. 93.) 4 IT IS SO ORDERED. 5 Dated: December 3, 2019 □ SA Honorable Michael S. Berg United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28