1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NESTLÉ USA, INC., Case No. 1:19-cv-00176-LJO-BAM 12 Plaintiff, ORDER VACATING HEARING 13 v. ORDER GRANTING PLAINTIFF NESTLE

USA, INC.’S AND DEFENDANTS

14 MATTHEW CLARK, LAW OFFICES OF MATTHEW CLARK AND LAW OFFICES

MARK S. NELSON, OF MARK S. NELSON’S JOINT MOTION

15 FOR AN EXTENSION OF DISPOSITIVE Defendants. MOTION DEADLINE AND PRE-TRIAL 16 CONFERENCE 17 (Doc. 23) 18 19 20 Currently pending before the Court is Plaintiff Nestlé USA, Inc. and Defendants Matthew 21 Clark and the Law Offices of Mark S. Nelson (collectively, the “Parties”) joint motion for an 22 order (1) extending the deadline for the filing of any dispositive motions from January 24, 2020 to 23 March 24, 2020; and (2) extending the date of the pretrial conference from April 21, 2020 to May 24 21, 2020. (Doc. No. 23.) The Court finds the matter suitable for decision without oral argument 25 and the hearing currently set for February 21, 2020, is HEREBY VACATED. The motion is 26 deemed submitted.1 Local Rule 230(g). 27 1 The Court notes that because the motion was submitted jointly and no party opposes the 28 motion, the parties could have submitted the matter as stipulation to continue the relevant 1 I. Background 2 This action was initiated on February 8, 2019. (Doc. No. 1.) On August 1, 2019, the 3 Court issued a Scheduling Order which, in relevant part, set a deadline of January 24, 2020, for 4 dispositive motions, a date of April 21, 2020, for the pretrial conference, and a date of June 23, 5 2020, for trial. (Doc. No. 17.) 6 On January 23, 20202, the parties filed the instant joint motion. According to the moving 7 papers, since the entry of the Scheduling Order the parties have conducted written discovery and 8 Defendants have been allowed several extensions of time in which to respond to discovery due to 9 difficulties obtaining relevant documents on the status of the disputed settlement funds over 10 which Plaintiff seeks to impose an equitable lien. Defendants reportedly produced a significant 11 volume of documentation in mid-November 2019, including bank account statements. Following 12 this production, the parties have been in discussions regarding the responses, potential 13 supplementation of those responses and potential resolution of this matter. (Doc. No. 23 at 3.) 14 The parties represent that in order to facilitate resolution of this matter, they request a brief 15 extension of the disposition and pretrial conference deadlines “to avoid incurring additional 16 attorney’s fees and costs which may impede settlement discussions.” (Id. at 3.) The parties also 17 aver that additional time will allow them to narrow the potential trial issues. (Id.) 18 II. Discussion 19 Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and 20 with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily 21 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, 22 Inc., 975 F.2d 604, 609 (9th Cir. 1992). The Court may modify the scheduling order “if it cannot 23 reasonably be met despite the diligence of the party seeking the extension.” Id. If the party was 24 not diligent, the inquiry should end. Id. 25 Generally, settlement discussions do not constitute good cause justifying modification of 26 the pretrial Scheduling Order. See, e.g., Gerawan Farming, Inc. v. Rehrig Pacific Co., No. 11-cv- 27

28 deadlines in the Scheduling Order. 1 01273-LJO-BAM, 2013 WL 1164941, * 4 (E.D. Cal. Mar. 20, 2013). However, in this instance, 2 the Court recognizes that discovery documents were not provided until mid-November 2019, and 3 supplemental discovery responses may be necessary to clarify the status of the disputed funds. 4 The Court therefore will permit the modification requested by the parties. 5 III. Conclusion and Order 6 The Court, having read and considered all of the supporting papers submitted by counsel, 7 and good cause appearing therefore, IT IS HEREBY ORDERED as follows: 8 1. The Parties’ Joint Motion for Extension of Time to File Dispositive Motion is 9 GRANTED; 10 2. The January 24, 2020 deadline for the parties to file any pretrial motions, including 11 any dispositive motions, is continued to March 24, 2020; 12 3. The Pretrial Conference for this matter is continued from April 21, 2020 to May 21, 13 2020; 14 4. Trial in this action remains set for June 23, 2020. However, as the parties previously 15 were informed, Judge Lawrence J. O’Neill will not be available to conduct the pretrial 16 conference and trial in this matter due to his impending retirement. The parties also 17 have been informed that it is uncertain who the trial judge will be and if and when the 18 case may proceed to trial; and 19 5. The parties are cautioned that further modification of the Scheduling Order must be 20 supported by a demonstrated showing of good cause. 21

IT IS SO ORDERED.

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23 Dated: January 27, 2020 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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