Tommy and Brother Auto Sales v. Mercedes-Benz USA, LLC

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMY AND BROTHER AUTO Case No.: 25-cv-0921-LL-MMP SALES, et al., 12 ORDER DENYING JOINT MOTION 13 TO CONTINUE Plaintiffs, 14 v. [ECF No. 17] 15 MERCEDES-BENZ USA, LLC, 16 17 Defendant. 18 19 On June 20, 2025, the Court issued a Scheduling Order Regulating Discovery and 20 Other Pretrial Proceedings (“Scheduling Order”). ECF No. 8. In relevant part, the Court 21 set a deadline to complete fact discovery of November 21, 2025, an expert designation 22 deadline of December 19, 2025, a rebuttal expert designation deadline of January 9, 2026, 23 and a deadline to serve all expert disclosures required by Federal Rule of Civil Procedure 24 (“Rule”) 26(a)(2) of February 6, 2026. Id. ¶¶ 4, 5, 6. All these deadlines have passed. 25 On February 10, 2026—over 80 days after the fact discovery cutoff already 26 expired—the parties filed the instant joint motion requesting to continue numerous 27 deadlines including (i) the fact discovery cut off, (ii) designation and rebuttal designation 28 of experts, (iii) expert disclosures and rebuttal reports, and (iv) the expert discovery cutoff. 1 ECF No. 17. The parties acknowledge the June 20, 2025 Scheduling Order sets forth the 2 deadlines at issue and further concede “[t]his is the Parties’ first request for a continuance 3 of any discovery deadlines.” Id. at 2 (emphasis in original). The parties contend good cause 4 exists because “Plaintiffs’ [sic] wish to take the deposition of MBUSA’s Person Most 5 Knowledgeable” who is first available to sit for deposition on March 17, 2026 and the 6 parties have agreed to this deposition date. Id. The parties further represent Defendant 7 served written discovery on October 17, 2025, “Plaintiffs provided objection-only 8 responses to such requests on November 17, 2025[,]” and Defendant “requests a 9 continuance of the fact discovery cut-off so that it can issue set-two of written discovery 10 requests to Plaintiffs.” Id. 11 I. LEGAL STANDARD 12 Rule 16(b)(4) provides a scheduling order “may be modified only for good cause 13 and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Scheduling Order, ECF 14 No. 8 ¶ 17 (“The dates and times set forth herein will not modified except for good cause 15 shown.”). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the 16 party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 17 (9th Cir. 1992). “The pretrial schedule may be modified if it cannot reasonably be met 18 despite the diligence of the party seeking the extension.” Zivkovic v. S. Cal. Edison Co., 19 302 F.3d 1080, 1087 (9th Cir. 2002) (citation modified). “If the party seeking the 20 modification was not diligent, the inquiry should end and the motion to modify should not 21 be granted.” Id. (citation modified). 22 “In addition to being required to establish good cause, a party moving to extend time 23 after a scheduling order deadline has passed must demonstrate excusable neglect.” LaNier 24 v. United States, No. 15-cv-360-BAS-BLM, 2017 WL 951040, at *2 (S.D. Cal. Mar. 10, 25 26 1 Two deadlines have not passed. The deadline to serve contradictory or rebuttal expert 27 reports is March 6, 2026, and the deadline to complete expert discovery is April 3, 2026. ECF No. 8 ¶¶ 6–7. Designation and disclosure of experts is a precondition of both 28 1 2017) (citation omitted); see also Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must be 2 done within a specified time, the court may, for good cause, extend the time: . . . (B) on 3 motion made after the time has expired if the party failed to act because of excusable 4 neglect.”). Thus, when the scheduling order deadline has passed, the moving party must 5 establish both good cause and excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B); LaNier, 6 2017 WL 951040, at *2. A “determination of whether neglect is excusable is an equitable 7 one that depends on at least four factors: (1) the danger of prejudice to the opposing party; 8 (2) the length of the delay and its potential impact on the proceedings; (3) the reason for 9 the delay; and (4) whether the movant acted in good faith.” Bateman v. United States Postal 10 Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000). The weight of these factors is left to the 11 court’s discretion. Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004). 12 II. ANALYSIS 13 The parties seek to continue numerous expired deadlines. Specifically, the fact 14 discovery deadline expired on November 21, 2025; the expert designation and rebuttal 15 deadlines expired on December 19, 2025 and January 9, 2026, respectively; and the expert 16 disclosure deadline expired on February 6, 2026. See ECF No. 8. Yet nowhere in the 17 parties’ joint motion do they acknowledge or inform the Court that the deadlines they seek 18 to continue have already passed. Nor do the parties acknowledge or address the applicable 19 excusable neglect standard. The parties also did not file a declaration from counsel or 20 provide other contents required by the Court’s Civil Chambers Rules VIII and IX. 21 What’s more, the parties do not show good cause for continuance. The parties 22 provide no information in their joint motion as to their purported diligence, either before 23 or after the deadlines expired. To the contrary, the joint motion identifies two purported 24 reasons to extend the deadlines: (1) for Plaintiffs to take the deposition of Defendant 25 pursuant to Rule 30(b)(6) and (2) for Defendant to serve further written discovery on 26 Plaintiffs. ECF No. 17 at 2. Yet the joint motion fails to provide any other information of 27 the parties’ efforts in discovery, e.g., if and when Plaintiffs noticed Defendant’s deposition 28 and any prior or subsequent meet and confer efforts between the parties related to the 1 || deposition. Likewise, the joint motion fails to identify what efforts, if any, Defendant made 2 || since receiving Plaintiffs objections to the first set of written discovery on November 17, 3 ||2025. Further, the parties provide no information whatsoever on their efforts, if any, to 4 ||comply with expert designations or disclosure deadlines. 5 The parties do not establish good cause or excusable neglect to warrant a 6 || continuation of the requested deadlines. Rather, this 1s a situation where deadlines came 7 |jand went, and the parties now retroactively seek to correct the error. Instead of 8 ||acknowledging the current circumstances, however bleak, and applicable law, they try to 9 || pull the proverbial wool over the Court’s eyes. Even if the parties were not diligent in 10 tracking deadlines, “carelessness is not compatible with a finding of diligence and offers 11 ||no reason for a grant of relief.” Johnson, 975 F.2d at 609. Further, the parties’ approach 12 ||lacked candor. United States v. Associated Convalescent Enters., Inc., 766 F.2d 1342, 1346 13 Cir. 1985) (“An attorney does not simply act as an advocate for his client; he is also 14 || an officer of the court. As such, an attorney has a duty of good faith and candor in dealing 15 || with the judiciary.”’). The parties are reminded of their duty of candor to the Court and will 16 ordered to show cause for any further lack of candor. 17 || I. CONCLUSION 18 For the foregoing reasons, the Court DENIES the joint motion. The parties must 19 || comply with all court ordered dates and deadlines. ECF Nos. 8, 16. 20 IT IS SO ORDERED. 21 ||Dated: February 13, 2026 WA bs he Ih. st HON. MICHELLE M. PETTIT United States Magistrate Judge 23 24 25 26 27 28