1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CERTIFIED NUTRACEUTICALS, INC., Case No.: 3:18-cv-744 W (KSC) a California Corporation, 12

ORDER GRANTING DEFENDANTS’

Plaintiff, 13 MOTION TO AMEND THE v. SCHEDULING ORDER TO SUBMIT 14

SUCCESSIVE MOTION FOR

THE CLOROX COMPANY, et al, 15 SUMMARY JUDGMENT [DOC. 156] Defendants. 16 17 Defendants The Clorox Company, Nutranext, and Neocell Holding Company 18 (collectively, “Defendants”) request a modification of the scheduling order to 19 accommodate a successive motion for summary judgment with respect to Plaintiff’s 20 remaining claim for injunctive relief. (Mot. [Doc. 156].) Plaintiff Certified 21 Nutraceuticals, Inc. opposes the Motion on grounds that Defendants failed to meet their 22 burden to show “good cause” because they were aware of the facts now presented when 23 they filed their first summary judgment motion on September 14, 2020—the last day to 24 file dispositive motions. (Opp’n [Doc. 159].) 25 The Court decides the matter without oral argument pursuant to Civil Local Rule 26 7.1(d)(1). For the reasons discussed below, Defendants’ Motion to Amend the 27 Scheduling Order [Doc. 156] is GRANTED. 28 1 I. BACKGROUND 2 Defendants moved for summary judgment on September 14, 2020—the last day to 3 file dispositive motions in this case. [Doc. 117]. On September 29, 2021, the Court 4 granted in part and denied in part Defendants’ Motion, dismissing all of Plaintiff’s claims 5 except for its claim for injunctive relief. [Doc. 141]. Then on October 28, 2021, 6 Defendants filed an ex parte application seeking: (1) clarification of certain language in 7 the Court’s Summary Judgment Order; and (2) modification of the scheduling order to 8 permit Defendants to file a second motion for summary judgment after the dispositive 9 motion deadline. 10 On November 3, 2021, the Court clarified the Summary Judgment Order, denied 11 Defendants’ request to modify the scheduling order without prejudice, and instructed 12 Defendants to file a noticed motion instead. [Doc. 155]. Defendants did so on November 13 24, 2021. [Doc. 156]. Plaintiff opposed the noticed motion on December 20, 2021 [Doc. 14 159], and Defendants filed their reply on December 27, 2021 [Doc. 161]. 15 16 II. LEGAL STANDARD 17 Federal Rule of Civil Procedure 16(b)(4) provides that scheduling orders “may be 18 modified only for good cause and with the judge’s consent.” The party seeking an 19 amendment bears the burden of showing good cause. Zivkovic v. S. Cal. Edison Co., 302 20 F.3d 1080, 1087 (9th Cir. 2002). On the one hand, this “good cause” inquiry “primarily 21 considers the diligence of the party seeking the amendment,” and “the focus of the 22 inquiry is upon the moving party’s reasons for seeking modification.” Johnson v. 23 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “If that party was not 24 diligent, the inquiry should end.” Id. On the other hand, the Supreme Court “has long 25 recognized that a district court possesses inherent powers that are governed not by rule or 26 statute but by the control necessarily vested in courts to manage their own affairs so as to 27 achieve the orderly and expeditious disposition of cases.” Dietz v. Bouldin, 579 U.S. 40, 28 45 (2016) (internal quotations and citation omitted). Indeed, under the Civil Justice 1 Reform Act, 28 U.S.C. Section 471, “[f]ederal trial courts are now required, by statute, to 2 implement techniques and strategies designed to dispose of cases in an efficient and 3 inexpensive manner.” Schwarzkopf Techs. Corp. v. Ingersoll Cutting Tool Co., 142 4 F.R.D. 420, 423 (D. Del. 1992). Additionally, “all of the Federal Rules of Civil 5 Procedure [] are subject to the injunction of Rule 1 that they be construed to secure the 6 just, speedy, and inexpensive determination of every action.” Herbert v. Lando, 441 U.S. 7 153, 177 (1979) (internal quotations and citation omitted). 8 9 III. DISCUSSION 10 Defendants argue that good cause exists to modify the scheduling order to allow a 11 second motion for summary judgment with respect to Plaintiff’s remaining claim for 12 injunctive relief. (Mot. at 3.) They argue that a second motion “would promote 13 efficiency by resolving this matter without the need for trial,” and that they were diligent 14 because the issues they “wish to address in a second motion for summary judgment did 15 not crystalize until the issuance of the Court’s [Summary Judgment] Order and the 16 subsequent Clarification.” (Id. at 3-4, 7.) 17 Plaintiff counters that there is no good cause because Defendants “are solely at 18 fault for failing to make any arguments regarding injunctive relief in their First [Motion 19 for Summary Judgment], and cannot now get a second bite at the apple.” (Opp’n at 3.) 20 Moreover, “despite [] Defendants’ argument that the issue did not crystalize, [they] 21 should have been aware of what the issues were when they filed the First [Motion for 22 Summary Judgment].” (Id. at 6.) 23 It is true that Defendants could have argued the deficiency of Plaintiff’s injunctive 24 relief claim in their first motion for summary judgment. As Defendants even admit, that 25 claim is “subject to dismissal based on facts already identified.” (Mot. at 3; emphasis 26 added.) But jumping to trial on one claim for injunctive relief without at least attempting 27 to dispose the issue on the papers is inefficient and a waste of judicial resources. See, 28 e.g., Thornton v. Ethicon Inc., 2021 WL 2661220, at *2 (D. Ariz. Apr. 26, 2021) 1 || (‘Although Defendants did not act diligently to file their supplemental motion for 2 ||summary judgment by the deadline ... the Court finds that addressing the punitive 3 damages claim now, rather than reserving the issue for trial, would best serve the interests 4 justice and judicial economy.) Thus, permitting a successive motion for summary 5 judgment will further the purposes of the Civil Justice Reform Act and Federal Rule of 6 || Civil Procedure | “to secure the just, speedy, and inexpensive determination” of this 7 || matter. 8 9 CONCLUSION 10 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Amend the 11 || Scheduling Order to File a Successive Motion for Summary Judgment [Doc. 156] and 12 || ORDERS as follows: 13 A. Defendants’ deadline to file a successive motion for summary judgment is 14 April 4, 2022; 15 B. Defendants shall contact the Court to obtain a hearing date prior to filing 16 their motion. 17 || IT IS SO ORDERED. 18 \ 19 || Dated: March 3, 2022 [te luQorn 20 jon. Phomas J. Whelan 1 United States District Judge 22 23 24 25 26 27 28