1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FIREMAN'S FUND INSURANCE CO., Case No.: 3:23-cv-01847-CAB-AHG

12 Plaintiff,

ORDER:

13 v. (1) GRANTING IN PART AND 14 ELECTROLUX HOME PRODUCTS,

DENYING IN PART JOINT MOTION

INC.,

15 TO MODIFY THE SCHEDULING Defendant. ORDER, and 16

17 (2) ISSUING FIRST AMENDED

SCHEDULING ORDER

18

19 [ECF No. 20] 20 21 22 Before the Court is the parties’ joint motion to modify the scheduling order. ECF 23 No. 20. The parties seek an order from the Court extending all case management deadlines 24 by approximately three months. Id. 25 Parties seeking to continue deadlines in the scheduling order must demonstrate good 26 cause. FED. R. CIV. P. 16(b)(4) (“A schedule may be modified only for good cause and with 27 the judge’s consent”); see also Chmb.R. at 2 (stating that any request for continuance 28 requires “[a] showing of good cause for the request”). 1 Courts have broad discretion in determining whether there is good cause. See, e.g., 2 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992); Liguori v. 3 Hansen, No. 2:11cv492-GMN-CWH, 2012 WL 760747, at *12 (D. Nev. Mar. 6, 2012). 4 The good cause standard focuses on the diligence of the party seeking to amend the 5 scheduling order and the reasons for seeking modification. Johnson, 975 F.2d at 609 6 (“[T]he focus of the inquiry is upon the moving party’s reasons for seeking modification 7 ... If that party was not diligent, the inquiry should end.”) (internal citation omitted). 8 Therefore, “a party demonstrates good cause by acting diligently to meet the original 9 deadlines set forth by the court.” Merck v. Swift Transp. Co., No. CV-16-01103-PHX-ROS, 10 2018 WL 4492362, at *2 (D. Ariz. Sept. 19, 2018). 11 Here, the parties have represented to the Court that they need additional time to 12 conduct fact discovery. ECF No. 20. The motion highlights that—as of the June 17, 2024, 13 filing date of the joint motion, 11 days before the fact discovery cutoff of June 28, 2024— 14 Defendant had not yet propounded any written discovery. ECF No. 20-1 at 2. Upon review 15 of the parties’ joint motion, “the Court’s tentative ruling is to deny the motion because the 16 parties have not shown diligence.” ECF No. 21. As such, the Court held a motion hearing 17 on June 27, 2024, and heard oral argument from both sides. ECF No. 22. 18 During the hearing, the Court reiterated its finding, and expressed its concern, that 19 the parties have not shown diligence in this case. On November 6, 2023, the fact discovery 20 period opened.1 On May 16, 2024—over 6 months after discovery opened—Plaintiff 21 propounded its first set of written discovery. On June 24, 2024—over 7 months after 22 discovery opened—Defendant propounded its first set of written discovery. Further, the 23 Court highlighted other unnecessary delays in this case that belie a finding of diligence. 24 On May 29, 2024, “the Court advised the parties to submit a joint motion to modify the 25

26 1 See ECF No. 4 at 3 (requiring that the parties meet and confer pursuant to Rule 26(f) by 27 November 6, 2023, and noting that “the Court will consider discovery to be open after the parties have met and conferred pursuant to Rule 26, and will take this deadline into account 28 1 scheduling order as soon as possible[.]” ECF No. 19 (emphasis added). The instant motion 2 was filed 19 days later on June 17, 2024. ECF No. 20. 3 As discussed with counsel during the hearing, the Court does not find good cause to 4 modify the scheduling order in the manner the parties requested. The Court will, however, 5 grant a small extension of certain deadlines, while keeping most of the original scheduling 6 order deadlines in place. As such, the joint motion is GRANTED IN PART AND 7 DENIED IN PART. ECF No. 20. The Court issues the following First Amended 8 Scheduling Order: 9 1. Defendant must provide Plaintiff with substantive discovery responses by 10 July 9, 2024. 11 2. Counsel2 shall refer to the Judge Bencivengo’s Chambers Rules for Civil 12 Cases, which is accessible via the Court’s website at www.casd.uscourts.gov. 13 Judge Bencivengo’s rules concerning the procedure for seeking permission to file 14 documents under seal are incorporated by reference. See ECF No. 15 at 10–11. 15 3. All fact discovery shall be completed by all parties by September 16, 2024. 16 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 17 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of 18 time in advance of the cut-off date, so that it may be completed by the cut-off date, taking 19 into account the times for service, notice and response as set forth in the Federal Rules of 20 Civil Procedure. Counsel shall promptly and in good faith meet and confer with 21 regard to all discovery disputes in compliance with Local Rule 26.1(a). A failure to 22 comply in this regard will result in a waiver of a party’s discovery issue. Absent an 23 order of the court, no stipulation continuing or altering this requirement will be 24 recognized by the court. The Court expects counsel to make every effort to resolve all 25 disputes without court intervention through the meet and confer process. If the parties 26 reach an impasse on any discovery issue, the movant must e-mail chambers at 27

28 2 1 efile_goddard@casd.uscourts.gov no later than 45 days after the date of service of the 2 written discovery response that is in dispute, seeking a telephonic conference with the 3 Court to discuss the discovery dispute. The email must include: (1) at least three proposed 4 times mutually agreed upon by the parties for the telephonic conference; (2) a neutral 5 statement of the dispute; and (3) one sentence describing (not arguing) each party’s 6 position. The movant must copy opposing counsel on the email. No discovery motion may 7 be filed until the Court has conducted its pre-motion telephonic conference, unless the 8 movant has obtained leave of Court. All parties are ordered to read and to fully comply 9 with the Chambers Rules of Magistrate Judge Allison H. Goddard. 10 4. Plaintiff(s) (or the party(ies) having the burden of proof on any claim) shall 11 serve on all parties a list of experts whom that party expects to call at trial on or before 12 August 1, 2024. Defendant(s) (or the party(ies) defending any claim, counterclaim, 13 crossclaim, or third party claim) shall serve on all parties a list of experts whom that party 14 expects to call at trial on or before August 1, 2024. On or before August 21, 2024, any 15 party may supplement its designation in response to any other party’s designation, so long 16 as that party has not previously retained an expert to testify on that subject. Expert 17 designations shall include the name, address, and telephone number of each expert, and a 18 reasonable summary of the testimony the expert is expected to provide. The list shall also 19 include the normal rates the expert charges for deposition and trial testimony. 20 The parties must identify any person who may be used at trial to present evidence 21 pursuant to Rules 702, 703 or 705 of the Federal Rules of Evidence. This requirement is 22 not limited to retained experts. 23 Please be advised that failure to comply with this section or any other discovery 24 order of the Court may result in the sanctions provided for in Fed. R. Civ. P. 37, 25 including a prohibition on the introduction of experts or other designated matters in 26 evidence. 27 5. All expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on 28 all parties on or before October 15, 2024. Any contradictory or rebuttal information shall 1 be disclosed on or before November 8, 2024. In addition, Fed. R. Civ. P. 26(e)(1) imposes 2 a duty on the parties to supplement the expert disclosures made pursuant to Fed. R. Civ. P. 3 26(a)(2)(B) by the time that pretrial disclosures are due under Fed. R. Civ. P. 26(a)(3) 4 (discussed below). This disclosure requirement applies to all persons retained or specially 5 employed to provide expert testimony, or whose duties as an employee of the party 6 regularly involve the giving of expert testimony. 7 Please be advised that failure to comply with this section or any other discovery 8 order of the Court may result in the sanctions provided for in Fed. R. Civ. P. 37, 9 including a prohibition on the introduction of experts or other designated matters in 10 evidence. 11 6. A full-day, in-person Mandatory Settlement Conference is set for 12 November 25, 20243 at 9:30 a.m. before the Honorable Allison H. Goddard on the fifth 13 floor of the Edward J. Schwartz U.S. Courthouse, 221 West Broadway, San Diego, 14 California 92101. The Court requires the personal, in-person attendance of all parties, party 15 representatives with full4 settlement authority, including claims adjusters for insured 16 defendants, and the primary attorney(s) responsible for the litigation at the conference. 17 / / 18 19 3 Upon receipt of a joint email (to efile_goddard@casd.uscourts.gov) containing a firm date 20 for private mediation and the name of the mediator, the settlement conference will come off calendar. 21 4 The Court reminds the parties that parties and party representatives with full and complete 22 authority to enter into a binding settlement must be present at the settlement conference. 23 Full authority to settle means that a person must be authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties. Heileman 24 Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person 25 needs to have “unfettered discretion and authority” to change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485–86 (D. Ariz. 2003). Limited or 26 sum certain authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595– 27 97 (8th Cir. 2001). A person who needs to call another person who is not present at the conference before agreeing to any settlement does not have full authority. 28 1 A. Plaintiff must serve on Defendant a written settlement proposal, which 2 must include a specific demand amount, no later than November 5, 2024. Defendant 3 must respond to Plaintiff in writing with a specific offer amount prior to the Meet 4 and Confer discussion. The parties should not file or otherwise copy the Court on 5 these exchanges. Rather, the parties must include their written settlement proposals 6 in their respective Settlement Conference Statements to the Court. 7 B. Counsel for the parties must meet and confer in person, via 8 videoconference, or by phone no later than November 12, 2024. 9 C. Each party must prepare a Settlement Conference Statement, which will 10 be served on opposing counsel and lodged with the Court no later than 11 November 18, 2024. The Statement must be lodged in .pdf format via email to 12 efile_goddard@casd.uscourts.gov (not filed). The substance of the Settlement 13 Conference Statement must comply fully with Judge Goddard’s Mandatory 14 Settlement Conference Rules (located at 15 https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Mandatory%20S 16 ettlement%20Conference%20Rules.pdf). 17 D. Each party may also prepare an optional Confidential Settlement Letter 18 for the Court’s review only, to be lodged with the Court no later than 19 November 18, 2024. The Letter must be lodged in .pdf format via email to 20 efile_goddard@casd.uscourts.gov (not filed). Should a party choose to prepare a 21 Letter, the substance of the Settlement Conference Letter must comply fully with 22 Judge Goddard’s Mandatory Settlement Conference Rules. All parties are ordered 23 to read and to fully comply with the Chambers Rules and Mandatory 24 Settlement Conference Rules of Magistrate Judge Allison H. Goddard. 25 E. No later than November 18, 2024, each party must submit to the Court 26 via email (not filed) (at efile_goddard@casd.uscourts.gov) the names, titles, and 27 email addresses of all attendees. Court staff will then email all participants detailed 28 instructions regarding the location of the Court’s conference rooms 1 7. All expert discovery shall be completed by all parties by December 13, 2024. 2 The parties shall comply with the same procedures set forth in the paragraph governing 3 fact discovery. 4 8. All pre-trial motions, other than Daubert motions, motions to amend or join 5 parties, or motions in limine, shall be filed on or before November 18, 2024. All Daubert 6 motions shall be filed on or before January 13, 2025. Counsel for the moving party shall 7 set the motion date on the date that is 35 days from the date the motion is filed. Parties 8 intending to file a motion shall not contact Judge Bencivengo’s chambers for a hearing 9 date. The parties should review Judge Bencivengo’s chambers rules for civil cases for the 10 additional requirements for noticed motions before Judge Bencivengo. 11 Pursuant to Local Rule 7.1.f.3.c, if an opposing party fails to file opposition 12 papers in the time and manner required by Local Rule 7.1.e.2, that failure may 13 constitute a consent to the granting of a motion or other request for ruling by the 14 Court. Accordingly, all parties are ordered to abide by the terms of Local Rule 7.1.e.2 or 15 otherwise face the prospect of any pretrial motion being granted as an unopposed motion 16 pursuant to Local Rule 7.1.f.3.c. 17 9. In jury trial cases before the Honorable Cathy Ann Bencivengo, neither party 18 is required to file Memoranda of Contentions of Fact and Law pursuant to Civil Local Rule 19 16.1.f.2. 20 10. The parties must comply with the pretrial disclosure requirements of Fed. R. 21 Civ. P. 26(a)(3) no later than February 28, 2025. Please be advised that failure to 22 comply with this section or any other discovery order of the Court may result in the 23 sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on the 24 introduction of experts or other designated matters in evidence 25 11. Counsel shall confer and take the action required by Local Rule 16.1.f.4.a on 26 or before March 7, 2025. The parties shall meet and confer and prepare a proposed pretrial 27 order containing the following: 28 / / 1 1. A joint neutral statement to be read to the jury, not in excess of one page, of the nature of the case and the claims and defenses. 2 2. A list of the causes of action to be tried, referenced to the Complaint 3 [and Counterclaim if applicable]. For each cause of action, the order shall succinctly list the elements of the claim, damages and any defenses. A cause 4 of action in the Complaint [and/or Counterclaim] which is not listed shall be 5 dismissed with prejudice. 3(a). A list of each witness counsel actually expect to call at trial with a brief 6 statement, not exceeding four sentences, of the substance of the witnesses’ 7 testimony. 3(b). A list of each expert witness counsel actually expect to call at trial with 8 a brief statement, not exceeding four sentences, of the substance of the 9 witnesses’ testimony. 3(c). A list of additional witnesses, including experts, counsel do not expect 10 to call at this time but reserve the right to call at trial along with a brief 11 statement, not exceeding four sentences, of the substance of the witnesses’ testimony. 12 4(a). A list of all exhibits that counsel actually expect to offer at trial with a 13 one-sentence description of the exhibit. All exhibits are to be identified numerically, plaintiff starting with “1” and defendant beginning with an 14 agreed upon numerical designation. 15 4(b). A list of all other exhibits that counsel do not expect to offer at this time but reserve the right to offer if necessary at trial with a one-sentence 16 description of the exhibit. 17 5. A statement of all facts to which the parties stipulate. This statement shall be on a separate page and will be read to and provided to the jury. 18 6. A list of all deposition transcripts by page and line, or videotape 19 depositions by section, that will be offered at trial. 7. Counsel will note any objections they have to any other parties’ Fed. R. 20 Civ. P. 26(a)(3) Pretrial Disclosures. 21 The Court encourages the parties to consult with the assigned magistrate judge to work out 22 any problems in preparation of the proposed pretrial order. The court will entertain any 23 questions concerning the conduct of the trial at the pretrial conference. 24 13. Counsel for the Plaintiff(s) must provide opposing counsel with the proposed 25 pretrial order for review and approval and take any other action required by Local Rule 26 16.1.f.6.a on or before March 14, 2025. Opposing counsel must communicate promptly 27 with plaintiff’s attorney concerning any objections to form or content of the pretrial order, 28 1 || and both parties shall attempt promptly to resolve their differences, if any, concerning the 2 || order. 3 14. The proposed pretrial order shall be lodged with the district judge’s chambers 4 or before March 21, 2025, and shall be in the form prescribed in Local Rule 16.1.f.6. 5 15. The final Pretrial Conference is scheduled on the calendar of the Honorable 6 || Cathy Ann Bencivengo for March 28, 2025 at 2:00 p.m. 7 16. The trial in this matter shall commence on Monday, April 28, 2025 at 8 ||8:45 a.m. before the Honorable Cathy Ann Bencivengo 9 17. Plaintiff's counsel shall serve a copy of this order on all parties that enter this 10 hereafter. 11 IT IS SO ORDERED. 12 ||Dated: June 28, 2024 3 _Abiomt. Xl Honorable Allison H. Goddard 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28