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New Enterprises Limited v. SenesTech Inc.

United States District Court, D. Arizona

August 27, 2019

New Enterprises Limited, Plaintiff,
v.
SenesTech Incorporated, et al., Defendants.

          ORDER

          James A. Teilborg, Senior United States District Judge

         Pending before the Court is Plaintiff's unopposed motion to extend deadlines. (Doc. 83). The Court notes that the first deadline sought to be extended (the deadline for the party with the burden of proof to make expert disclosures) has already expired. Thus, Plaintiff's suggestion that the “good cause” standard applies (Doc. 83-1 at 1) is in error, as excusable neglect must be shown to extend an expired deadline. Fed. R. Civ. Pro. 6(b)(1)(B). The Court is very concerned that Plaintiff is not exercising diligence in allowing deadlines to expire without moving for an extension of time. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“[t]he district court may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence of the party seeking the extension.'”).

         As to whether Plaintiff has shown good cause or excusable neglect, in the motion for extension of time, Plaintiff states, “Because this case involves a claim governed by the Private Securities Litigation Reform Act [“PSLRA”], a mandatory stay of discovery was in place while the motions to dismiss were pending.” (Doc. 83 at 2). This statement is a misrepresentation of the record, in that the Court previously directed the parties to begin discovery as to all claims not governed by the PSLRA. Specifically, at the Rule 16 conference, the Court held,

Now, you have proceeded to tell me that you don't have to comply with the mandatory initial discovery requirements because you said this is a PSLRA case, and I'm not going to quarrel with that being exempted, and I'm not going to decide today whether it is or isn't, because I don't need to decide it. And I -- and you -- you've also said to me, we don't have to give you any dates, Judge, because we're exempt from it.
Well, I'm going to set some dates today, and -- because it's pretty clear to me -- admittedly on a fairly cursory examination of the pending motions, that, for example, at least there's a breach of contract case in here that can't be subject to the -- to the PSLRA protocol. So I'm going to set some dates, and -- and then I'm going to leave to you to work out among yourselves what kind of discovery you can agree needs to be done and what kind of discovery you -- somebody claims has to abide the denial of one or more of the motions.
And I might add, again, I just got a cursory look at one of the motions on the -- on the breach of contract, and certainly I -- it's premature for me to predict whether it will survive the motion, but -- but my point is that there's some -- there's some motions there that are not -- that I think are not PSLRA-driven.
So I'm going to set [] deadline[s] …

(Doc. 48 at 21).[1]

         Between the Rule 16 conference on May 30, 2018, and the currently pending motion for extension of time filed on August 26, 2019, the parties never sought a stay of discovery nor an extension of the discovery deadlines. The Court seriously questions whether ignoring a court order is good cause or excusable neglect.

         In the motion for extension of time, Plaintiff seeks an extension of time to file dispositive motions to April 3, 2020. (Doc. 83 at 2). In this Court's Order of April 26, 2018, the Court stated,

THE PARTIES ARE CAUTIONED that it is the practice of this Court to not extend the Dispositive Motion Deadline beyond the two-year anniversary of the case being filed in or removed to Federal Court, nor to allow the Discovery Cut-Off to extend beyond 30 days before the Dispositive Motion Deadline. Accordingly, delays in effectuating service of process, the filing of or pendency of motions, settlement discussions or mediation, etc., will not be considered as justification to exceed the above-referenced two-year deadline.

(Doc. 22 at 2). The Court repeated this warning at the Rule 16 conference, stating,

One of the takeaways from this afternoon's hearing is that I will not allow the dispositive motion deadline to extend past the date -- the two-year anniversary of the date the case came into federal court. So whether it comes in by direct filing or by way of removal, I will simply not let the dispositive motion deadline extend past the two-year anniversary of that date. And the reason is, I need to get dispositive motions on ...

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