Shaughnessy v. LVNV Funding, LLC
- Proceeding
- district
- Area
- civil
- Panel
- William v. Gallo (author)
Analysis
Defendants filed an unopposed ex parte application to reschedule an Early Neutral Evaluation (ENE) and Case Management Conference (CMC) due to scheduling conflicts. The Court granted the request to continue the November 9, 2020 conference but denied the specific request to set a new date for November 10, 2020, instead ordering the parties to propose available dates for November and December 2020.
| What the court decided | The model |
|---|---|
Grant in part and deny in part Defendants' Ex Parte Application to Reschedule the Early Neutral Evaluation Conference“Nevertheless, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Ex Parte Application, given Defendants’ representative’s inability to participate in the November 9, 2020 ENE and CMC.” | agree with court The court correctly identified that the defendants failed to meet the 'good cause' standard under Rule 16(b) because they did not address their diligence. However, the court exercised its discretion to grant the continuance anyway due to the representative's unavailability, which is a permissible exercise of judicial management authority, even if the strict legal standard for modifying the scheduling order was not met. The denial of the specific November 10 date and the order to propose new dates is a reasonable procedural step to ensure all parties are available. |
Order parties to jointly contact chambers to propose new ENE and CMC dates“Instead, the Court ORDERS counsel for the Parties to jointly contact this Court’s chambers, no later than Friday, November 6, 2020, via electronic mail at efile_gallo@casd.uscourts.gov and set forth all dates in November and December 2020 in which the Parties, their counsel, and any insurance adjusters are all available to participate by Zoom video conference in the ENE and CMC.” | agree with court This is a standard procedural order to facilitate scheduling. It is appropriate given the denial of the specific proposed date. |
Cautions Defendants regarding failure to comply with Chambers Rule VI (advance notice)“While refraining from denying Defendants’ Ex Parte Application for non-compliance in this instance, the Court cautions Defendants that such leniency in further proceedings may not be extended.” | agree with court The court correctly noted the violation of local chambers rules and issued a warning. This is within the court's inherent authority to manage its own proceedings and enforce local rules. |
The order itself: sound — The order is procedurally sound. It correctly applies the Rule 16(b) good cause standard, identifies the defendants' failure to meet it, but then exercises discretion to grant the continuance based on practical necessity (representative's unavailability). It also appropriately enforces local chambers rules by issuing a warning. The reasoning is clear and the outcome is defensible.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GRADY SHAUGHNESSY, individually Case No.: 20-CV-1809-DMS-WVG and on behalf of all others similarly 12 situated, ORDER ON UNOPPOSED EX 13 PARTE APPLICATION TO Plaintiff, RESCHEDULE THE EARLY 14 v. NEUTRAL EVALUATION 15 CONFERENCE LVNV FUNDING, LLC; RESURGENT 16 CAPITAL SERVICES, LP; and DOES 1 through 5, 17 Defendants. 18 19 Pending before this Court is LVNV Funding, LLC and Resurgent Capital Services, 20 L.P. (“Defendants”) Unopposed Ex Parte Application to Reschedule the Early Neutral 21 Evaluation Conference (“Ex Parte Application”). (Doc. No. 12.) Defendants filed the Ex 22 Parte Application on October 28, 2020. (Id.) Grady Shaughnessy (“Plaintiff”) did not file 23 a Response in Opposition or a Notice of Non-Opposition. The Ex Parte Application 24 represents Plaintiff does not oppose its request to continue the November 9, 2020 Early 25 Neutral Evaluation Conference (“ENE”) and Case Management Conference (“CMC”) in 26 this matter. (Id., 3:1-3.) The Court treats Plaintiff’s non-response in this matter as a waiver 27 to oppose the Ex Parte Application. 28 1 In relevant part, Defendants move the Court to continue the ENE and CMC due to 2 scheduling conflicts arising from defense counsel’s pre-planned vacation and Defendants’ 3 representative’s personal plans. Rule 16(b) of the Federal Rules of Civil Procedure (“Rule 4 16(b)”) require litigants to show good cause in moving the court to modify an operative 5 scheduling order. Fed. R. Civ. P. 16(b). The good cause standard is informed by litigants’ 6 diligence in attempting to fully comply with the deadlines set by the Court. Matrix Motor 7 Co. v. Toyota Jidosha Kabushiki Kaisha, 218 F.R.D. 667, 671 (C.D. Cal. 2003); Zivkovic 8 v. S. Cal. Edison Co., 302 F.3d 1080, 1087–88 (9th Cir. 2002). Defendants’ Ex Parte 9 Application does not address Defendants’ diligence in seeking to satisfy the existing dates 10 set forth in the relevant September 28, 2020 Order (Doc. No. 9) (“ENE Order”). Thus, 11 Defendants fail to set forth good cause supporting their request to continue the ENE and 12 CMC. Nevertheless, the Court GRANTS IN PART AND DENIES IN PART Defendants’ 13 Ex Parte Application, given Defendants’ representative’s inability to participate in the 14 November 9, 2020 ENE and CMC. 15 Specifically, the Court grants Defendants’ request to continue the November 9, 16 2020, given Defendants’ representative’s unavailability to participate in settlement 17 discussions on November 9, 2020, but denies Defendants’ request to reschedule the ENE 18 and CMC for November 10, 2020. Instead, the Court ORDERS counsel for the Parties to 19 jointly contact this Court’s chambers, no later than Friday, November 6, 2020, via 20 electronic mail at efile_gallo@casd.uscourts.gov and set forth all dates in November and 21 December 2020 in which the Parties, their counsel, and any insurance adjusters are all 22 available to participate by Zoom video conference in the ENE and CMC. Thereafter, the 23 Court will issue an order setting a new ENE and CMC date. 24 Finally, the Court directs the Parties to fully comply with all applicable rules in the 25 course of this litigation, including, but not limited to, this Court’s Chambers Rules. This 26 Court’s Civil Chambers Rule VI expressly provides “appropriate ex parte applications may 27 be made any time after first contacting Judge Gallo’s Research Attorney assigned to the 28 case.” At no time did this Court’s Chambers receive any advance notice regarding 1 ||Defendants’ intent to file the instant Ex Parte Application. Further, although Civil 2 ||Chambers Rule VI required Defendants to contact this Court’s Chambers, Defendants also 3 not contact the Chambers of District Judge Sabraw prior to making this filing. Thus, A Defendants failed to provide the requisite advance notice to the Court. While refraining 5 ||from denying Defendants’ Ex Parte Application for non-compliance in this instance, the 6 Court cautions Defendants that such leniency in further proceedings may not be extended. 7 IT ISSO ORDERED. 8 || Dated: November 2, 2020 □ Se 9 10 Hon. William V. Gallo United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28