Sharp v. Covenant Care LLC et al, No. 3:2011cv01379 - Document 52 (S.D. Cal. 2012)
Court Description: ORDER denying Defendant's 50 Motion to Modify the Scheduling Order. The 8/24/2012 pretrial motions filing is reinstated. Deadline has passed and no further pretrial motions shall be accepted for filing. Signed by Magistrate Judge William McCurine, Jr on 9/21/2012. (jah)
Download PDF
<![CDATA[
Sharp v. Covenant Care LLC et al Doc. 52 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 DENNIS SHARP, 10 11 12 13 14 15 16 ) ) Plaintiff, ) ) ) v. ) ) COVENANT CARE LLC; COVENANT ) ) CARE LA JOLLA, LLC dba LA JOLLA NURSING AND REHABILITATION ) CENTER; LA JOLLA - CAL ASSOCIATES ) L.P.; and DOES 1 through 10, Inclusive, ) ) ) Defendants. Case No. 11-cv-1379 CAB (WMc) ORDER DENYING DEFENDANT’S MOTION TO MODIFY SCHEDULING ORDER [ECF No. 50.] 17 18 I. INTRODUCTION 19 On August 21, 2012, the Court held a telephonic discovery conference. [ECF Nos. 45, 47.] 20 After hearing from counsel of record, the Court: (1) vacated the deadline to file motions for 21 summary judgment pending further order of the Court; and (2) issued a supplemental briefing 22 schedule on the issue of whether the Court should stay this litigation or modify the scheduling order 23 in light of Defendants’ planned modifications to the subject property. [ECF No. 46.] After careful 24 consideration of the parties’ positions at the telephonic discovery conference as well as the parties’ 25 supplemental briefing, the Court DENIES Defendants’ Motion to Modify the Scheduling Order. 26 [ECF No. 50.] 27 /// 28 /// 11cv1379 CAB (WMc) Dockets.Justia.com 1 2 3 4 II. STANDARD OF REVIEW The Court will only modify dates set forth in a scheduling order upon a showing of good cause by the moving party. Specifically, Fed. R. Civ. P. 16 states: (b) Scheduling. 5 (1) Scheduling Order. Except in categories of actions exempted by local rule, the 6 district judge-or a magistrate judge when authorized by local rule-must issue a 7 scheduling order: 8 (A) after receiving the report from the parties under Rule 26(f); or 9 (B) after consulting with the parties’ attorneys and any unrepresented parties 10 at a scheduling conference or by telephone, mail, or other means. 11 (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, 12 but in any event within the earlier of 120 days after any Defendant has been served 13 with the complaint or 90 days after any Defendant has appeared. 14 (3) Contents of the Order. 15 (A) Required Contents. The scheduling order must limit the time to join 16 other parties, amend the pleadings, complete discovery, and file motions. 17 (B) Permitted Contents. The scheduling order may: 18 (I) modify the timing of disclosures under Rules 26(a) and (e)(1); 19 (ii) modify the extent of discovery; 20 (iii) provide for disclosure or discovery of electronically stored 21 information; 22 (iv) include any agreements the parties reach for asserting claims of 23 privilege or of protection as trial-preparation material after 24 information is produced; 25 (v) set dates for pretrial conferences and for trial; and 26 (vi) include other appropriate matters 27 (4) Modifying a Schedule. A schedule may be modified only for good cause and 28 with the judge’s consent. 2 11cv1379 CAB (WMc) 1 Accordingly, under Rule 16, the court is required to issue a scheduling order as soon as practicable, 2 and the order “must limit the time to join other parties, amend the pleadings, complete discovery, and 3 file motions.” Fed.R.Civ.P. 16(b)(3)(A). Once a scheduling order has been filed pursuant to Rule 16, 4 the “schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 5 16(b)(4). “ Rule 16(b)'s ‘good cause’ standard primarily considers the diligence of the party seeking 6 the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). If the 7 moving party fails to demonstrate diligence, “the inquiry should end.” Id. For example, good cause 8 may be found where the moving party shows it assisted the court with creating a workable scheduling 9 order, that it is unable to comply with the scheduling order's deadlines due to matters not reasonably 10 foreseeable at the time the scheduling order issued, and that it was diligent in seeking a modification 11 once it became apparent it could not comply with the scheduling order. Jackson v. Laureate, Inc., 12 186 F.R.D. 605, 608 (E.D.Cal.1999) (citations omitted). 13 III. DISCUSSION 14 A. Defendants’ Motion To Modify The Scheduling Order 15 Defendants request a modification of the Court’s Scheduling Order to allow additional time 16 for the filing of a motion for summary judgment.1 Defendants’ anticipated motion for summary 17 judgment would be based on their remedial efforts to bring the subject property into compliance with 18 the Americans with Disabilities Act (“ADA”). Construction began on the subject property on 19 September 4, 2012. [Dettmer Decl., ECF No. 50-3.] In support of their motion, Defendants contend 20 they were unable to complete construction before the August 24, 2012 motion cut-off date due to a 21 slow permit approval process. In addition, Defendants argue an extension of the motion filing 22 deadline promotes efficiency within the court because the motion for summary judgment would 23 address standing and mootness issues, thereby streamlining issues for trial. 24 In the alternative, Defendants urge the Court to stay the litigation to accommodate their 25 construction schedule and set a status conference in late November, 2012. 26 27 1 28 The current pretrial motion cutoff date in this case was August 24, 2012. [ECF No. 35.] This deadline reflects an extension of the original pretrial motion date of June 25, 2012 and was jointly proposed by the parties. [ECF Nos. 25, 35.] 3 11cv1379 CAB (WMc) 1 B. Plaintiff’s Opposition 2 Plaintiff argues Defendants have not been diligent in seeking a continuance and fail to 3 demonstrate good cause to allow them more time under the Scheduling Order to file a motion for 4 summary judgment. Specifically, Plaintiff notes Defendants’ request for additional time to file a 5 motion for summary judgment came only three days before the August 24, 2012 filing deadline. 6 Plaintiff also argues the Court’s Scheduling Order was in place for seven months and Plaintiff’s 7 demand for injunctive relief had been in Defendants’ possession for 10 months before they requested 8 an extension of the motion cut-off date. Plaintiff contends the delay in remediation efforts to the 9 subject property is a result of Defendants’ poor planning as they did not submit the architectural plans 10 for barrier removal until May of 2012 and did not begin construction until September 4, 2012, eleven 11 days after the motion cut-off date. Plaintiff argues allowing defendant additional time to complete 12 construction and then file a motion for summary judgment, all in an effort to moot Plaintiff’s claims, 13 is inefficient and prejudicial. 14 C. Defendants Have Failed to Demonstrate Good Cause to Modify The Scheduling 15 Order 16 In this case, the Court has already given the parties and Defendants, in particular, sufficient 17 time to identify the necessary items for remediation and begin construction on the property at issue. 18 Specifically, the Complaint was filed on June 21, 2011; an Answer was filed on July 21, 2011; and 19 an Early Neutral Evaluation Conference (“ENE) was scheduled for August 30, 2011. [ECF Nos.1, 20 6 and 8.] At the parties’ request, the ENE was continued to September 22, 2011. A case 21 management conference was held on November 10, 2011. The Court’s normal course is to issue a 22 Scheduling Order immediately after the case management conference.2 However, because the parties 23 represented to the Court that they were near settlement, the Court postponed issuing its Scheduling 24 Order for two months and set a status conference for January 18, 2012. In the Order setting the status 25 conference, the Court advised counsel to “be prepared to discuss the progress of settlement as well 26 27 28 2 The Court notes the parties failed to assist the court with creating a workable scheduling order at the November 10, 2011 conference. The Joint Case Management Conference Statement submitted in advance of the CMC suggested the Court engage in a 9-month-long course of periodic status conferences only with no input as to reasonable deadlines for discovery or pretrial motions. 4 11cv1379 CAB (WMc) 1 as proposed pretrial deadlines in the event settlement cannot be achieved.” [ECF No. 16.] In 2 keeping with the allowance of time to negotiate settlement, Plaintiff states that by the time the Court 3 sent its November 28, 2011 order allowing the parties additional time to negotiate, the Defendants 4 had already received Plaintiff’s demand3 for injunctive relief. [ECF No. 51 at 2.] 5 The Court also gave the parties additional time to file dispositive motions in May of this year 6 in response to a joint request to continue the filing of pre-trial motions for 60 days. [ECF No. 35.] 7 On May 23, 2012, the Court granted the motion for additional time and continued the original 8 deadline for filing pretrial motions from June 25, 2012 to August 24, 2012. [ECF No. 37.] Two 9 weeks earlier, on May 9, 2012, Defendants had submitted construction documents and applications 10 to the Office of Statewide Health and Development. [ECF No. 50-3.] Even though it is clear 11 Defendants knew the extent of the work they were going to perform on the subject property by May 12 9, 2012 at the latest, they only asked for a 60-day continuance of the pretrial filing deadline in the 13 May 21, 2012 joint motion. [ECF No.35.] 14 Defendants have not shown that their inability to comply with the scheduling order's deadlines 15 results from a situation not reasonably foreseeable at the time the scheduling order issued. 16 Defendants possessed Plaintiff’s detailed demand for injunctive relief since November, 2011 and 17 were given two months of additional time by the Court to work with Plaintiff to resolve the ADA 18 claims before a scheduling order issued in January, 2012. Moreover, in May 2012, when Defendants 19 were clearly aware of the construction work necessary to remediate the property, they did not inform 20 the Court that the work they intended to do could not be completed before the jointly requested 21 August 24, 2012 pretrial motion cutoff date. Instead, Defendants waited until three days before the 22 August 24, 2012 filing deadline to request a continuance or stay. Defendants were not diligent in 23 seeking a modification once it became apparent they could not comply with the scheduling order. 24 Defendants ask the Court to follow the district court’s decision in Sanford v. Capital City 25 Restaurants, Inc., 2006 WL 5003842 (E.D. Cal.), an unpublished decision from the Eastern District 26 of California. In Sanford, the plaintiff alleged the facilities at the defendants’ restaurant violated the 27 Americans with Disabilities Act. In response, the defendants moved to stay the case on the ground 28 3 Plaintiff made its demand for injunctive relief on or about November 8, 2011. [ECF No. 51.] 5 11cv1379 CAB (WMc) 1 that they planned to demolish and rebuild the restaurant thereby mooting the plantiff’s ADA claims. 2 The Sanford Court granted the defendants’ motion reasoning: “[w]hen the building is being 3 demolished and rebuilt, plaintiff will have no legally cognizable interest in obtaining an injunction 4 against defendants to do what they are already doing - i.e., ensuring that their restaurant is in 5 compliance with the ADA.” Id. at *2. What distinguishes the Sanford case from the instant matter 6 is that the defendants in Sanford possessed plans to remediate the restaurant before Plaintiff’s 7 complaint was filed. “Defendants had previously settled a lawsuit involving ADA violations at the 8 same restaurant, brought by another plaintiff.” Id. at *1. The court invoked its discretion to stay the 9 matter in order to promote the terms of the prior settlement which would efficiently resolve the issues 10 raised in the newly-filed ADA case. Essentially, the Sanford court stayed the proceedings at the 11 beginning of the case to allow the defendants time to complete what had already been in the works 12 as a result of a settlement in a previous ADA case which litigated the very issues the new Plaintiff 13 raised in the later action. 14 The Sanford court did not issue a stay designed to moot an ADA plaintiff’s claims in a matter 15 such as this, where: (1) the case has gone on for more than a year of vigorous litigation, and (2) 16 Plaintiff’s ADA claims were unaddressed by Defendants at the time the complaint was filed. To stay 17 this action or to again continue the pretrial motion filing deadlines would be inefficient. There is no 18 guarantee that the work will be done by November 16, 2012, or that the work will be done correctly. 19 Plaintiff’s counsel has indicated the case is ready for trial and argues Plaintiff should not have to 20 incur the additional fees and costs of a litigation stay which would undermine Plaintiff’s right to be 21 compensated for combating ADA discrimination. Further, granting Defendants’ request encourages 22 defendants in ADA cases to wait as long as possible before remedying structures in violation of the 23 ADA. Here, Defendants are not requesting a modification to allow them to complete discovery, 24 locate witnesses or otherwise prepare for trial. Rather, Defendants want a continuance of this Court’s 25 Scheduling Order to complete modifications to their facility so as to moot Plaintiff’s claims which 26 were valid at the time of the complaint’s filing and apparently remain valid at the present time. 27 Defendants’ legal strategy breeds delay and inefficiency in litigated ADA cases. Defendants’ motion 28 to modify the scheduling order is, therefore, DENIED. 6 11cv1379 CAB (WMc) 1 IV. CONCLUSION AND ORDER THEREON 2 Defendants failed to demonstrate their diligence or good cause required to modify the Court’s 3 January 23, 2012 Scheduling Order as required by Rule 16. The motion to modify the scheduling 4 order is DENIED. 5 IT IS FURTHER ORDERED that the August 24, 2012 pre-trial motion filing deadline 6 vacated by the Court pending receipt of the parties supplemental briefing is hereby reinstated. The 7 deadline has passed and no further pretrial motions shall be accepted for filing. 8 IT IS SO ORDERED. 9 DATED: September 21, 2012 Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 11cv1379 CAB (WMc)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
