Ex Parte Motion for Request to Modify Pretrial Order By Stipulation to Extend Certain Deadlines By An Additional Eighty-Eight Days to Permit Conclusion of Mediation Under the VDRP Program

MORRISON C. ENGLAND, JR., District Judge.

Pursuant to Local Rule 143 and Federal Rule of Civil Procedure (FRCP) 16(b)(4), Defendant, NEW PARADIGM PROPERTY MANAGEMENT, LLC (hereinafter Defendant), and Plaintiff, ALLIED WORLD INSURANCE COMPANY (hereinafter Plaintiff) by and through the undersigned counsel, hereby jointly stipulate and request this Court to issue an Order to modify the Initial Pretrial Scheduling Order (ECF No. 3) (hereinafter "Initial Pretrial Scheduling Order" or "Pretrial Order") for case 2:16-CV-02992-MCE-GGH, by extending the dates for conclusion of expert witness discovery and the deadline for filing of dispositive motions by 88 days from the current deadline of April 29, 2019 to July 26, 2019, with all other deadlines to remain as governed by the Initial Pretrial Scheduling Order.

The purpose of this request is to permit the parties to conclude in mediation under the VDRP program and to avoid the expense of anticipated lengthy expert depositions and/or the filing of potential dispositive motions pending the results of mediation. The VDRP program has appointed Cynthia Larsen, Esq. of Orrick Herrington and Sutcliffe's Sacramento office as mediator. The mediation will be scheduled in late May or early June of 2019 at the mediator's convenience —as the principal of one of the parties will be out of the country through the first two weeks of May, 2019.

The Initial Pretrial Scheduling Order allocated 365 days for fact discovery until December 22, 2017 (ECF No. 3). Discovery including initial Rule 26(f) disclosures was then placed on hold pending ruling on Defendant's Motion to Compel Arbitration (ECF No. 23), which was denied on September 28, 2017. Shortly after denial of the motion on October 16, 2017, the court granted a joint request to extend fact discovery by 120 days to April 20, 2018 (ECF No. 28) and by 60 days to June 19, 2018 (ECF No. 35). Fact discovery was later extended to August 3, 2018 (ECF No. 35.)

The parties have to date diligently engaged in discovery consisting of the exchange of several rounds of very lengthy written discovery, including amended and supplemental responses after meet and confers, and the exchange of several binders of documents concerning the construction project obtained both from the parties and from third parties through subpoena.

The last of the responses to document production requests was accomplished in early March. Since that exchange and in April and May of 2018, the parties have exchanged additional lengthy rounds of written discovery and produced thousands of pages of additional documents pursuant to follow-up requests. Numerous PMQ and fact witness depositions were taken in the summer of 2018.

Following the conclusion of fact discovery, the parties have at great expense designated four experts on the complex construction and suretyship issues, who have exchanged six lengthy reports. The parties jointly believe that it may be productive to mediate at this point prior to incurring the expense of expert deposition discovery and/or the filing of any dispositive motions.

FRCP 16(b)(4) allows a court to modify a scheduling order upon a showing of "good cause." According to the Ninth Circuit Court, the "good cause" standard required is primarily concerned with the diligence taken by the party seeking the extension. Johnson v. Mammoth Recreations, Inc, 975 F.2d 604, 609 (9th Cir. 1992). A court may modify the scheduling order should the given deadlines not be reasonably able to be met, despite diligent efforts. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. CA 1999).

This Stipulated Request to Modify the Pretrial Order is supported by good cause. The parties hereby respectfully request that this Court modify the Pretrial Order by extending the expert deposition and dispositive motion deadline by an additional 88 days. This would result in the following new deadlines:

Expert Deposition Deadline: July 26, 2019.

Dispositive Motion Filing Deadline: July 26, 2019

All other deadlines in the Pretrial Order remain unchanged.

ORDER

IT IS SO ORDERED.