United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE DEFENDANT'S
MOTION TO CONTINUE TRIAL (DKT. 115)
HONORABLE RONALD E. BUSH CHIEF U.S. MAGISTRATE JUDGE.
is Defendant's Motion to Continue Trial (Dkt. 115),
seeking to vacate the trial presently set for November 13,
2018 and to reset it for no sooner than January 2019.
Plaintiff opposes the motion. (Dkt. 124.) Having reviewed the
briefing and supporting filings, and otherwise being fully
advised, the Court enters the following Decision and Order:
Jun Yu (“Yu”) sued Defendant Idaho State
University (“ISU”) in 2015 under Title VI of the
Civil Rights Act, after ISU dismissed Yu from its Doctoral
Clinical Psychology Program in 2013. On February 8, 2018,
after extensive discovery and motion practice, trial was set
to begin on November 13, 2018. (Dkt. 67.) A pretrial
conference was scheduled for October 23, 2018.
October 12, 2018, Defendant's lead counsel Michael Kelly
moved to continue trial until mid-January 2019 or later. The
motion was supported by Mr. Kelly's affidavit, which
described an unforeseen scheduling conflict for Mr. Kelly of
a personal and confidential nature. (Dkts. 115, 115-1.)
Defendant's motion and supporting filings and
Plaintiff's response to the motion are the subjects of
unopposed motions to seal. (Dkts. 116, 126, 127.) The Court
has considered the motions to seal and is granting such
motions in a decision that is filed separately from this
decision. In light of the motions to seal, the instant
decision resolving the motion to continue trial will limit
its discussion regarding the specific reasons why Defendant
seeks to postpone trial.
opposes the motion to continue trial. (Dkt. 124.) First,
Plaintiff suggests that Defendant's co-counsel, Shannon
Graham, could serve as counsel in Mr. Kelly's absence.
Second, Plaintiff questions whether the 60-day continuance
Defendant requests would be adequate; Plaintiff's implied
concern is that too short a continuance would result in a
subsequent additional motion to continue trial, adding
expense and delay. Third, Plaintiff raises scheduling
concerns related to the availability of Plaintiff's
counsel's and of Plaintiff's witnesses to try this
case in early 2019. Plaintiff notes that most of his
witnesses are employed in academia and coordinating their
availability during the traditional academic year is
difficult. He contends it might not be until May 2019 when he
could marshal his witnesses for trial. Finally, Plaintiff
contends that a continuance will require him to expend
additional funds in hard costs that have already been
expended in preparing to commence trial on November 13, 2018.
Plaintiff supports this contention with an exhibit attached
to an affidavit of counsel showing he has incurred over $22,
000 in costs for witness fees and travel expenses for
witnesses and counsel.
deadline for filing a reply memorandum has not yet run, but
the Court finds that this matter requires urgent resolution
so that the parties can be provided as much notice as
possible regarding whether trial will proceed as scheduled or
will be continued.
Rule of Civil Procedure 16 governs pretrial conferences,
scheduling, and management. Pursuant to this rule, the Court
previously entered a scheduling order with deadlines for
joining other parties, amending the pleadings, completing
discovery, and filing motions. F.R.C.P. 16(b)(3)(A). Further,
under the rule, the Court also set a date for a pretrial
conference and for the trial. F.R.C.P. 16(b)(3)(B)(vi).
Court's scheduling order is to be modified only for good
cause and with the judge's consent. F.R.C.P. 16(b)(4).
The good cause standard of Rule 16(b) “primarily
considers the diligence of the party seeking the
amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). “The
court may modify the schedule on a showing of good cause if
it cannot reasonably be met despite the diligence of the
party seeking the extension.” F.R.C.P. 16 advisory
committee's notes (1983 amendment). “Although the
existence or degree of prejudice to the party opposing the
modification might supply additional reasons to deny a
motion, the focus of the inquiry is upon the moving
party's reasons for seeking modification.”
Johnson, 975 F.2d at 609.
federal rules do not impose specific requirements on a motion
to continue trial.
District Local Rule Civil 6.1(b) provides as follows:
All requests to vacate, continue, or reschedule a trial date
must be in the form of a written motion, must be approved by
the client, and must state the specific reason(s) for the
requested continuance. A mere stipulation between the parties
without providing the specific reason(s) for the requested
continuance will be deemed insufficient. Client approval can
be satisfied either by the client's actual signature or
by the attorney certifying to the Court that the client knows
about and agrees to the requested continuance. The requesting
party must apprise the Court if they have previously been
granted a trial date continuance in this particular action.
National Trust Insurance v. Graham Brothers
Construction, Defendant filed a summary judgment motion
one day after the dispositive motion deadline, arguing that
it had good cause for its untimely filing because
counsel's daughter was sick three days prior to the
deadline, which caused counsel to work fewer hours on those
days to help care for the child. 916 F.Supp.2d 1244, 1250
(M.D. Fla. January 4, 2013). In denying the motion, the court
noted that the relevant deadline had already been extended
twice at Defendant's request and that Defendant failed to
seek further extension of the deadline before it lapsed. The
Court also observed that Plaintiff - which had timely filed a
summary judgment motion of its ...