1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TSI AKIM MAIDU OF TAYLORSVILLE No. 2:17-cv-01156-TLN-CKD

RANCHERIA,

12 Plaintiff, 13 ORDER v. 14

UNITED STATES DEPARTMENT OF

15 THE INTERIOR; DAVID BERNHARDT;

TARA KATUK MAC LEAN SWEENEY;

16 and DOES 1–100, 17 Defendants. 18 19 This matter is before the Court on Federal Defendants’ (collectively, “Defendants”) Ex 20 Parte Application for Order Staying Administrative Record Deadlines and Briefing Schedule. 21 (ECF No. 47.) Plaintiff Tsi Akim Maidu of Taylorsville Rancheria (“Plaintiff”) filed a response. 22 (ECF No. 50.) Defendants filed a reply. (ECF No. 51.) For the reasons set forth below, 23 Defendants’ Ex Parte Application is GRANTED. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On April 24, 2020, the Court granted in part and denied in part Defendants’ motion to 3 dismiss Plaintiff’s first amended complaint. (ECF No. 41.) The Court granted the motion as to 4 Plaintiff’s loss of tribal status claim on statute of limitations grounds and dismissed that claim 5 with prejudice. (Id. at 6–7.) The Court found that Plaintiff’s claim as to the Department of the 6 Interior’s June 9, 2015 decision that Plaintiff is ineligible for Part 83 acknowledgment (“June 9, 7 2015 decision”) was not time-barred, noting Defendants had not challenged that claim on those 8 grounds, and the Court ruled that the claim would proceed as an APA judicial review case in the 9 normal course. (Id. at 6.) 10 The Court ordered the parties to submit a Joint Status Report within 14 days after entry of 11 its order on the motion to dismiss. (Id. at 7.) The parties filed their report on May 7, 2020. (ECF 12 No. 43.) Defendants stated in the Joint Status Report that they were considering whether to 13 retract the June 9, 2015 decision and that, if they decided to do so, they would seek dismissal on 14 grounds that the case is moot. (Id.) Plaintiff reserved the right to oppose such relief. (Id.) 15 On May 15, 2020, the Court entered its Pretrial Scheduling Order, which requires that 16 Defendants must lodge the Administrative Record with the Court and serve it on Plaintiff on or 17 before July 10, 2020. (ECF No. 44.) Plaintiff must file any objection to the adequacy of the 18 Administrative Record and file its opening summary judgment brief by August 7, 2020. (Id.) 19 On May 28, 2020, the Department of the Interior notified Plaintiff’s counsel of record 20 in writing that it had retracted the June 9, 2015 decision. In light of the retraction of the only 21 agency decision at issue in this APA case, Defendants subsequently asked Plaintiff to stipulate to 22 dismiss this action as moot. (ECF No. 47-1 at ¶ 2.) After receiving no response to this request, 23 Defendants informed Plaintiff in writing that, if it did not want to stipulate to dismissal, 24 Defendants intended to file a motion to dismiss on mootness grounds and to set the hearing for 25 the next available date on the Court’s calendar, which is August 6, 2020. (Id. at ¶ 3.) 26 Given this timing, Defendants’ motion will not be decided before the current July 10, 27 2020 Administrative Record deadline, or by the August 7, 2020 deadline for Plaintiff to object to 28 the adequacy of the Administrative Record and to file its opening summary judgment brief. (ECF 1 No. 44 at 2–3.) Having received no response from Plaintiff regarding a stipulation for dismissal 2 of this action, Defendants filed the instant application. (ECF No. 47.) 3 II. STANDARD OF LAW 4 In the instant case, the Pretrial Scheduling Order provides that, pursuant to Rule 16(b), the 5 order “shall not be modified except by leave of court upon a showing of good cause.” (ECF No. 6 44 at 4.) Federal Rule of Civil Procedure (“Rule”) 16(b) provides that the district court must 7 issue a scheduling order that limits “the time to join other parties, amend the pleadings, complete 8 discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). A scheduling order “may be modified 9 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 10 The “good cause” standard “primarily considers the diligence of the party seeking the 11 amendment,” and the court “may modify the pretrial schedule if it cannot reasonably be met 12 despite the diligence of the party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 13 975 F.2d 604, 609 (9th Cir. 1992) (internal citation and quotations omitted). “The prejudice to 14 opposing parties, if any, may provide additional grounds for denying the motion, but the focus is 15 on the moving party’s reason for seeking the modification.” Atayde v. Napa State Hosp., No. 16 116-CV-00398-DAD-SAB, 2020 WL 1046830, at *3 (E.D. Cal. Mar. 4, 2020), reconsideration 17 denied, No. 116-CV-00398-DAD-SAB, 2020 WL 1937395 (E.D. Cal. Apr. 22, 2020). 18 III. ANALYSIS 19 Defendants request the Court enter an order staying the deadlines for filing the 20 administrative record and the summary judgment briefing set forth in the Pretrial Scheduling 21 Order pending resolution of Defendants’ forthcoming motion to dismiss this action as moot. 22 (ECF No. 47 at 1.) In its response, Plaintiff challenges the merits of Defendants’ mootness 23 argument and also argues there is no need for a motion to dismiss when a motion for summary 24 judgment can sufficiently address the issue. (ECF No. 50 at 2.) 25 The Court finds good cause exists because Defendants were diligent in promptly filing 26 this application after attempts to reach a stipulated resolution with Plaintiff failed. Within two 27 weeks of the Court’s April 24, 2020 order on their motion to dismiss, Defendants stated in the 28 Joint Status Report that they were reviewing the June 9, 2015 decision and considering whether to 1 retract it. (ECF No. 43 at 3.) After they retracted the June 9, 2015 decision, Defendants asked 2 Plaintiff to stipulate to dismissal or to modify the scheduling order to stay the Administrative 3 Record and summary judgment briefing dates pending the Court’s ruling on their motion to 4 dismiss. After receiving no response, Defendants promptly filed this application. Under these 5 circumstances, good cause exists for the Court to modify the Pretrial Scheduling Order because 6 Defendants were diligent in seeking such relief. 7 Moreover, good cause exists because “[m]ootness is a threshold jurisdictional issue.” S. 8 Pac. Transp. Co. v. Pub. Util. Com’n of State of Or., 9 F.3d 807, 810 (9th Cir. 1993) (citing Sea- 9 Land Serv., Inc. v. ILWU, 939 F.2d 866, 870 (9th Cir. 1991)). The Supreme Court has 10 “repeatedly held that an actual controversy must exist not only at the time the complaint is filed, 11 but through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91 (2013) 12 (internal quotations and citations omitted). Here, the Court must decide whether this action is 13 now moot based on the Department’s retraction of the June 9, 2015 decision before proceeding to 14 the merits of Plaintiff’s claim on cross-summary judgment briefing. 15 Modification of the scheduling order also serves the interests of judicial economy and is 16 consistent with the Court’s inherent power to control its docket. See United States v. W.R. Grace, 17 526 F.3d 499, 509 (9th Cir. 2008) (citing Atchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc., 18 146 F.3d 1071, 1074 (9th Cir. 1998)). If the scheduling order deadlines are not stayed so that the 19 Court can determine whether it has jurisdiction to decide this case, its docket will be clogged with 20 a potentially unnecessary Administrative Record and briefing on the adequacy of the record, 21 Defendants’ motion to dismiss, and the parties’ cross-summary judgment motions on the merits 22 all at the same time. 23 Further, Plaintiff will suffer minimal prejudice from a stay of scheduling order deadlines 24 and, instead, will benefit from a stay. Modification will avoid the significant time and expense 25 Defendants will incur in preparing the Administrative Record, and Plaintiff will incur in 26 reviewing the Administrative Record, filing any objections to the adequacy of the record, and 27 filing its summary judgment brief by August 7. All of these actions will become unnecessary if 28 the Court finds the case is moot. 1 Accordingly, the Court finds good cause exists to modify the scheduling order pursuant to 2 Rule 16. See Johnson, 975 F.2d at 609. 3 IV. CONCLUSION 4 For the foregoing reasons, Defendants’ Ex Parte Application is hereby GRANTED. (ECF 5 No. 47.) All dates and deadlines set forth in the Court’s Pretrial Scheduling Order (ECF No. 44) 6 are STAYED pending the Court’s ruling on Plaintiff’s motion to withdraw as counsel. (ECF No. 7 48.) Defendants shall file their motion to dismiss, or alternatively the parties shall file a joint 8 status report should Defendants decline to file the motion dismiss, not later than fourteen (14) 9 days after the electronic filing of the Court’s order on the motion to withdraw. 10 IT IS SO ORDERED. 11 DATED: July 6, 2020 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28