United States District Court, D. Arizona
ORDER
Dominic W. Lanza, United States District Judge
On
January 17, 2019, the Court issued an amended case management
order. (Doc. 24.) This order set a fact discovery deadline of
July 31, 2019. (Id. at 2.) It also included a
paragraph entitled “The Deadlines Are Real, ”
which explained that “[t]he Court intends to enforce
the deadlines set forth in this Order, and the parties should
plan their litigation activities accordingly.”
(Id. at 8.)
On July
8, 2019, the parties filed a joint request to amend the
scheduling order by, among other things, pushing back the
fact discovery deadline to September 30, 2019. (Doc. 49.) The
joint request explained that this modest two-month extension
was warranted because the EEOC had recently issued a
right-to-sue letter to Plaintiff and Plaintiff had filed an
amended complaint based on the issuance of that letter.
(Id. at 1-2.) The Court agreed that these
developments constituted good cause to adjust the scheduling
order and thus granted the parties’ joint request.
(Doc. 50.)
Now
pending before the Court is a motion by Defendants to extend
the fact-discovery deadline by another two months, until
November 29, 2019. (Doc. 65.) Defendants contend there is
good cause for such an extension because they “changed
lead counsel in the case within the last several weeks, and
replacement lead counsel needs and requests time to become
familiar with the case and the issues.” (Id.
at 1-2.) Defendants also contend that, because
Plaintiff’s deposition is scheduled for September 25,
2019- only five days before the current discovery cutoff-they
need additional time to conduct follow-up discovery after the
deposition is complete. (Id.) Plaintiff opposes the
extension request, arguing that a change in counsel
doesn’t constitute good cause to adjust a scheduling
order and that the late scheduling of her deposition is
Defendants’ fault. (Doc. 68.) Plaintiff also argues
that she would be prejudiced by any extension because she has
placed her life on hold while this litigation progresses.
(Id. at 6.) And in their reply, Defendants state
they are “reluctant to judge the performance of prior
counsel” but argue that “[i]f diligence has been
missing, it has not been because of the actions of the
client.” (Doc. 72 at 2.)
Defendants’
request is governed by Rule 16(b)(4) of the Federal Rules of
Civil Procedure, which provides that, once a scheduling order
has been issued, it “may be modified only for good
cause and with the judge’s consent.” The Ninth
Circuit has explained that “[u]nlike Rule 15(a)’s
liberal amended policy which focuses on . . . prejudice to
the opposing party, Rule 16(b)’s ‘good
cause’ standard primarily considers the diligence of
the party seeking the amendment. . . . [T]he focus of the
inquiry is upon the moving party’s reasons for seeking
modification. If that party was not diligent, the inquiry
should end.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992).
Defendants
have failed to establish good cause here. The primary reason
they’re seeking an extension is that they switched
attorneys a few weeks before the discovery cutoff. This
isn’t good cause. See, e.g., La Jolla Spa MD, Inc.
v. Avidas Pharmaceuticals, LLC, 2018 WL 6523048, *3
(S.D. Cal. 2018) (denying request to modify scheduling order
and noting that “the fact that Plaintiff recently
retained new counsel does not establish good cause”);
Yazzie v. Mohave Cnty., 2015 WL 7567488, *7 (D.
Ariz. 2015) (“Plaintiff states that leave to amend is
necessary because she had ‘recently retained new
counsel and would like to allow [c]ounsel to review the
documents, amend, and bolster any arguments.’ However,
obtaining new counsel is not a valid reason for
delay.”). See generally Green v. Delgado, 2015
WL 2455168, *2 (E.D. Cal. 2015) (“[Substitution of new
counsel who has a different plan than prior counsel does not
usually suffice to show good cause to allow amendment under
Rule 16.”). Nor may Defendants disclaim any
responsibility for the lack of diligence exhibited by their
prior counsel. “Because the client is presumed to have
voluntarily chosen the lawyer as his representative and
agent, he ordinarily cannot later avoid accountability for
negligent acts or omissions of his counsel.”
Community Dental Servs. v. Tani, 282 F.3d 1164, 1168
(9th Cir. 2002).
Defendants’
other reason for seeking an extension-the need to conduct
follow-up discovery after Plaintiff’s deposition-also
fails to establish good cause. This deposition could have
been scheduled much earlier and was twice postponed at
Defendants’ request.
Accordingly,
IT IS ORDERED that Defendants’ motion
for extension of discovery ...