1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BAKER ELECRIC & RENEWABLES, Case No.: 3:24-cv-00135-MMA-VET

LLC,

12

ORDER GRANTING IN PART

Plaintiff, 13 JOINT MOTION TO AMEND v. SCHEDULING ORDER AND 14

ISSUING AMENDED SCHEDULING

ZURICH AMERICAN INSURANCE

15 ORDER COMPANY and DOES 1 through 20,

16 inclusive, [Doc. No. 35] 17 Defendants. 18 19 Before the Court is the parties’ Joint Motion to Amend Scheduling Order (“Joint 20 Motion”). Doc. No. 35. For the reasons stated below, the Court GRANTS IN PART the 21 Joint Motion and ISSUES an Amended Scheduling Order. 22 I. JOINT MOTION AND PROCEDURAL BACKGROUND 23 This is an insurance coverage action stemming from claims in an underlying state 24 court action initiated by Plaintiff against Metropolitan Water District of Southern 25 California (the “Underlying Action”). On May 20, 2024, the Court issued the initial 26 Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings. Doc. No. 26. On 27 September 13, 2024, the Court held a status conference where the parties indicated they 28 were actively engaging in settlement discussions with a mediator but did not agree that 1 settlement was imminent. During the status conference, the parties also explained they 2 would be seeking a joint extension due to the complicated nature of the case. 3 On September 27, 2024, the Parties filed the Joint Motion. Doc. No. 35. The parties 4 request that the fact and expert discovery deadlines be extended by at least 30 days and up 5 to 90 days. Id at 2. Plaintiff agrees to at least a 30-day extension and Defendant seeks an 6 extension of at least 60 days and up to 90 days. Id. The parties represent that the requested 7 extension is necessary due to the ongoing settlement negotiations and the complexity of 8 the cable system at issue. Id at 4–5. Defendant further cites the need for “expert analysis 9 and testimony,” and Plaintiff anticipates the need for depositions (in addition to testimony 10 from the Underlying Action) given certain unique facts at issue in this case. Id at 4–5. 11 II. LEGAL STANDARD 12 In determining whether to modify a scheduling order, the Court considers the “good 13 cause” standard set forth in Federal Rule of Civil Procedure 16(b)(4). Fed. R. Civ. P. 14 16(b)(4). Pursuant to Rule 16(b)(4), a “schedule may be modified only for good cause and 15 with the judge’s consent.” Id. (emphasis added); Zivkovic v. S. Cal. Edison Co., 302 F.3d 16 1080, 1087 (9th Cir. 2002). Rule 16(b)(4)’s “good cause” standard “primarily considers 17 the diligence of the party seeking the amendment.” Learjet, Inc. v. Oneok, Inc. (In re W. 18 States Wholesale Natural Gas Antitrust Litig.), 715 F.3d 716, 737 (9th Cir. 2013). “The 19 district court may modify the pretrial schedule ‘if it cannot reasonably be met despite the 20 diligence of the party seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 21 F.2d 604, 609 (9th Cir. 1992) (citing to Fed. R. Civ. P. 16 advisory committee’s notes on 22 the 1983 amendment); see also Zivkovic, 302 F.3d at 1087; 6A Wright, Miller & Kane, 23 Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990) (“good cause” means 24 scheduling deadlines cannot be met despite party’s diligence). “[C]arelessness is not 25 compatible with a finding of diligence and offers no reason for a grant of relief.” Johnson, 26 975 F.2d at 609. The focus of the inquiry is upon the moving party’s reasons for seeking 27 modification. Id. “If the moving party was not diligent, the inquiry should end.” Id.; Branch 28 Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017) (same). 1 Further, Civil Local Rule 16.1(b) requires that all counsel “proceed with diligence 2 to take all steps necessary to bring an action to readiness for trial.” Civ.LR 16.1(b). 3 Similarly, this Court’s Civil Chambers Rules require that any motion to continue a 4 scheduling order deadline include a showing of good cause, supported by a “declaration 5 from counsel that details steps taken by the Parties to meet current deadlines and reasons 6 why the Parties can no longer meet those deadlines.” J. Torres Civ. Chambers R. VI.D. 7 III. DISCUSSION 8 The Court recognizes the need to develop testimony and expert evidence beyond that 9 already developed in the Underlying Action. However, the Court issued the original 10 scheduling order on May 20, 2024, thus the parties have had over 4 months to engage in 11 fact discovery. And while the parties reference the exchange of tens of thousands of 12 documents and production of deposition transcripts from the Underlying Action, it appears, 13 based on representations during a status conference, that much of the information exchange 14 occurred on an informal basis and little has occurred in terms of formal discovery. Further, 15 despite a recognized need for depositions, neither party has taken or noticed a single 16 deposition. 17 Moreover, the Court appreciates the parties’ efforts in trying to resolve this case as 18 part of settlement efforts in the Underlying Action, but the Underlying Action does not 19 excuse the parties from being diligent in meeting deadlines in this case. This is especially 20 true when settlement is not imminent, and as such, settlement discussions are not a basis 21 for any party to delay conducting discovery. Still, the Court is persuaded that a short 22 extension is appropriate given the parties’ desire and efforts to settle this case and the desire 23 to avoid the potentially unnecessary expenditure of resources. 24 Accordingly, the Court finds there is good cause to extend certain deadlines, 25 including the close of fact and expert discovery by 45 days. Therefore, the Court GRANTS 26 IN PART the Parties’ Joint Motion. 27 28 1 IV. AMENDED SCHEDULING ORDER 2 Good cause appearing, the Court AMENDS the operative scheduling order (Doc. 3 No. 26) as follows: 4 1. All fact discovery shall be completed by all parties by November 29, 2024. 5 “Completed” means that all discovery under Fed. R. Civ. P. 30-36, and discovery 6 subpoenas under Fed. R. Civ. P. 45, must be initiated a sufficient period of time in advance 7 of the cut-off date, so that it may be completed by the cut-off date, taking into account the 8 times for service, notice, and response as set forth in the Federal Rules of Civil Procedure. 9 Counsel shall promptly and in good faith meet and confer regarding all discovery disputes 10 in compliance with Local Rule 26.1(a). The Court expects counsel to make every effort to 11 resolve all disputes without court intervention through the meet and confer process. If the 12 parties reach an impasse on any discovery issue, counsel shall follow the procedures 13 governing discovery disputes set forth in Judge Torres’ Civil Chambers Rules. A failure 14 to comply in this regard will result in a waiver of a party’s discovery issue. Absent an 15 order of the Court, no stipulation continuing or altering this requirement will be 16 recognized by the Court. 17 2. A Mandatory Settlement Conference (“MSC”) shall be conducted by Zoom 18 video conferencing on December 12, 2024 at 9:30 a.m. before Magistrate Judge Valerie 19 E. Torres.1 20 a. The following are mandatory procedures to be followed in preparation for 21 the MSC. Absent express permission from this Court, counsel must timely comply with 22 the dates and deadlines herein. Questions regarding the MSC or the mandatory guidelines 23 set forth herein may be directed to Judge Torres’ Chambers at (619) 557-6384. 24 25

26 1 Counsel may request the MSC be converted to an in-person appearance through a joint 27 call or email to Judge Torres’ Chambers (efile_torres@casd.uscourts.gov). Counsel 28 must meet and confer prior to making such a request. 1 b. Full Settlement Authority Required. Pursuant to Local Rule 16.1.c.1, all 2 parties, party representatives, including claims adjusters for insured parties, and the 3 principal attorney(s) responsible for the litigation must participate in the MSC.2 This 4 appearance must be made with full and complete authority to negotiate and enter into a 5 binding settlement.3 Counsel for a government entity is excused from this requirement if 6 the government attorney who participates in the MSC (i) has primary responsibility for 7 handling the case, and (ii) may negotiate settlement offers that the attorney is willing to 8 recommend to the government official having ultimate settlement authority. 9 c. Confidential Settlement Brief. No later than seven (7) calendar days 10 before the MSC, each party must lodge a Confidential Settlement Brief by email to 11 efile_torres@casd.uscourts.gov. The Confidential Settlement Brief should not exceed ten 12 (10) pages, excluding exhibits, and must be formatted according to the requirements of 13 Local Rule 5.1(a). Parties attaching exhibits must attach only the relevant pages of multi- 14 page exhibits and must highlight the relevant portions. 15 d. Contents of Settlement Brief. All Confidential Settlement Briefs shall 16 include the content specified in the Court’s Chambers Rules, available at 17 https://www.casd.uscourts.gov/Judges/torres/docs/Civil%20Chambers%20Rules.pdf. 18 19 20 2 The attendance requirement includes parties that are indemnified by others. Any 21 deviation from this Order requires prior Court approval. 22 3 Full authority to settle means that the individuals at the MSC are authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable 23 to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th 24 Cir. 1989). Party participants need 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, 25 485-486 (D. Ariz. 2003). One of the purposes of requiring a person with complete 26 settlement authority to attend the conference is that the person’s view of the case may be altered during the face-to-face conference. Id. at 486. Limited or sum certain 27 authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th 28 Cir. 2001). 1 e. Procedure for Zoom Videoconference. Two (2) business days prior to 2 the MSC, the Court will email counsel of record an invitation with the Zoom meeting 3 information. Participants can join the Zoom video conference by following the ZoomGov 4 Meeting hyperlink or using the meeting ID and password provided. Each participant should 5 plan to join the Zoom video conference at least five (5) minutes before the start of the 6 MSC. Counsel is responsible for ensuring their clients can participate in the MSC. All 7 participants must display the same level of professionalism and attention during the MSC 8 as if they were attending in person (e.g., not be driving while speaking to the Court, or 9 otherwise distracted). 10 3. The parties shall designate their respective experts in writing by January 2, 11 2025. The parties must identify any person who may be used at trial to present evidence 12 pursuant to Fed. R. Evid. 702, 703 or 705. This requirement is not limited to retained 13 experts. The parties shall designate rebuttal experts in writing by January 16, 2025. The 14 written expert designations shall include the name, address and telephone number of the 15 expert and a reasonable summary of the testimony the expert is expected to provide, 16 including any summary of facts and opinions required by Fed. R. Civ. P. 26(a)(2)(C). The 17 designations shall also include the normal rates the expert charges for deposition and trial 18 testimony. 19 4. By February 17, 2025, each party shall comply with the disclosure provisions 20 in Fed. R. Civ. P. 26(a)(2)(A) and (B). This disclosure requirement applies to all persons 21 retained or specially employed to provide expert testimony, or whose duties as an employee 22 of the party regularly involve giving expert testimony. Any party that fails to make these 23 disclosures shall not, absent substantial justification, be permitted to use evidence or 24 testimony not disclosed at any hearing or at the time of trial. In addition, the Court may 25 impose sanctions as permitted by Fed. R. Civ. P. 37(c). 26 5. Any party shall supplement its disclosure regarding contradictory or rebuttal 27 evidence under Fed. R. Civ. P. 26(a)(2)(D) and 26(e) by March 3, 2025. 28 1 6. All expert discovery shall be completed by all parties by April 4, 2025. The 2 parties shall comply with the same procedures set forth in the paragraph governing fact 3 discovery. 4 7. All dispositive pretrial motions, including motions for summary judgment and 5 motions addressing Daubert issues, must be filed by April 18, 2025.4 Counsel for the 6 moving party must obtain a motion hearing date from Judge Anello’s law clerk. The period 7 of time between the date you request a motion date and the hearing date may vary from 8 one district judge to another. Please plan accordingly. Failure to make a timely request for 9 a motion date may result in the motion not being heard. 10 8. If appropriate, following the filing of an order ruling on a motion for summary 11 judgment or other dispositive pretrial motion, or in the event no such motion is filed, after 12 the expiration of the deadline set forth in paragraph 7, supra, Judge Anello will issue a 13 pretrial scheduling order setting a pretrial conference, trial date, and all related pretrial 14 deadlines. The parties must review and be familiar with Judge Anello’s Civil Chambers 15 Rules, which provide additional information regarding pretrial scheduling. 16 9. The parties must review the chambers’ rules for the assigned district judge 17 and magistrate judge. 18 10. A post-trial settlement conference before a magistrate judge may be held 19 within 30 days of verdict in the case. 20 11. The dates and times set forth herein will not be modified except for good cause 21 shown. 22 12. Briefs or memoranda in support of or in opposition to any pending motion 23 shall not exceed twenty-five (25) pages in length without leave of a district court judge. No 24 reply memorandum shall exceed ten (10) pages without leave of a district court judge. 25 26

27 4 This deadline is not applicable to pretrial motions in limine. For further information 28 1 || Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 2 a table of authorities cited. 3 13. Plaintiff's counsel shall serve a copy of this order on all parties that enter this 4 || case hereafter. 5 IT IS SO ORDERED. 6 7 |lDated: October 4, 2024 8 Honorable Valerie E. Torres 9 United States Magistrate Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28