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

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25-cv-0921-LL-MMP
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
TOMMY AND BROTHER AUTO
SALES, et al.,
Plaintiffs,
v.
MERCEDES-BENZ USA, LLC,
Defendant.
Case No.: 25-cv-0921-LL-MMP
ORDER DENYING JOINT MOTION
TO CONTINUE
[ECF No. 17]
On June 20, 2025, the Court issued a Scheduling Order Regulating Discovery and
Other Pretrial Proceedings (“Scheduling Order”). ECF No. 8. In relevant part, the Court
set a deadline to complete fact discovery of November 21, 2025, an expert designation
deadline of December 19, 2025, a rebuttal expert designation deadline of January 9, 2026,
and a deadline to serve all expert disclosures required by Federal Rule of Civil Procedure
(“Rule”) 26(a)(2) of February 6, 2026. Id. ¶¶ 4, 5, 6. All these deadlines have passed.
On February 10, 2026—over 80 days after the fact discovery cutoff already
expired—the parties filed the instant joint motion requesting to continue numerous
deadlines including (i) the fact discovery cut off, (ii) designation and rebuttal designation
of experts, (iii) expert disclosures and rebuttal reports, and (iv) the expert discovery cutoff.
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ECF No. 17.1 The parties acknowledge the June 20, 2025 Scheduling Order sets forth the
deadlines at issue and further concede “[t]his is the Parties’ first request for a continuance
of any discovery deadlines.” Id. at 2 (emphasis in original). The parties contend good cause
exists because “Plaintiffs’ [sic] wish to take the deposition of MBUSA’s Person Most
Knowledgeable” who is first available to sit for deposition on March 17, 2026 and the
parties have agreed to this deposition date. Id. The parties further represent Defendant
served written 	discovery 	on 	October 17, 	2025, “Plaintiffs 	provided 	objection-only
responses to such 	requests 	on 	November 17, 2025[,]” 	and 	Defendant 	“requests 	a
continuance of the fact discovery cut-off so that it can issue set-two of written discovery
requests to Plaintiffs.” Id.
I. 	LEGAL STANDARD
Rule 16(b)(4) provides a scheduling order “may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Scheduling Order, ECF
No. 8 ¶ 17 (“The dates and times set forth herein will not modified except for good cause
shown.”). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the
party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609
(9th Cir. 1992). “The pretrial schedule may be modified if it cannot reasonably be met
despite the diligence of the party seeking the extension.” Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1087 (9th Cir. 2002) (citation modified). “If the party seeking the
modification was not diligent, the inquiry should end and the motion to modify should not
be granted.” Id. (citation modified).
“In addition to being required to establish good cause, a party moving to extend time
after a scheduling order deadline has passed must demonstrate excusable neglect.” LaNier
v. United States, No. 15-cv-360-BAS-BLM, 2017 WL 951040, at *2 (S.D. Cal. Mar. 10,
1 Two deadlines have not passed. The deadline to serve contradictory or rebuttal expert
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
remaining deadlines.
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2017) (citation omitted); see also Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must be
done within a specified time, the court may, for good cause, extend the time: . . . (B) on
motion made after the time has expired if the party failed to act because of excusable
neglect.”). Thus, when the scheduling order deadline has passed, the moving party must
establish both good cause and excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B); LaNier,
2017 WL 951040, at *2. A “determination of whether neglect is excusable is an equitable
one that depends on at least four factors: (1) the danger of prejudice to the opposing party;
(2) the length of the delay and its potential impact on the proceedings; (3) the reason for
the delay; and (4) whether the movant acted in good faith.” Bateman v. United States Postal
Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000). The weight of these factors is left to the
court’s discretion. Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004).
II. 	ANALYSIS
The parties seek to continue numerous expired deadlines. Specifically, the fact
discovery deadline expired on November 21, 2025; the expert designation and rebuttal
deadlines expired on December 19, 2025 and January 9, 2026, respectively; and the expert
disclosure deadline expired on February 6, 2026. See ECF No. 8. Yet nowhere in the
parties’ joint motion do they acknowledge or inform the Court that the deadlines they seek
to continue have already passed. Nor do the parties acknowledge or address the applicable
excusable neglect standard. The parties also did not file a declaration from counsel or
provide other contents required by the Court’s Civil Chambers Rules VIII and IX.
What’s more, the parties do not show good cause for continuance. The parties
provide no information in their joint motion as to their purported diligence, either before
or after the deadlines expired. To the contrary, the joint motion identifies two purported
reasons to extend the deadlines: (1) for Plaintiffs to take the deposition of Defendant
pursuant to Rule 30(b)(6) and (2) for Defendant to serve further written discovery on
Plaintiffs. ECF No. 17 at 2. Yet the joint motion fails to provide any other information of
the parties’ efforts in discovery, e.g., if and when Plaintiffs noticed Defendant’s deposition
and any prior or subsequent meet and confer efforts between the parties related to the
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deposition. Likewise, the joint motion fails to identify what efforts, if any, Defendant made
since receiving Plaintiffs objections to the first set of written discovery on November 17,
2025. Further, the parties provide no information whatsoever on their efforts, if any, to
comply with expert designations or disclosure deadlines.
The parties 	do 	not 	establish 	good 	cause or 	excusable neglect 	to 	warrant 	a
continuation of the requested deadlines. Rather, this is a situation where deadlines came
and 	went, and the parties now 	retroactively 	seek to 	correct 	the error. Instead 	of
acknowledging the current circumstances, however bleak, and applicable law, they try to
pull the proverbial wool over the Court’s eyes. Even if the parties were not diligent in
tracking deadlines, “carelessness is not compatible with a finding of diligence and offers
no reason for a grant of relief.” Johnson, 975 F.2d at 609. Further, the parties’ approach
lacked candor. United States v. Associated Convalescent Enters., Inc., 766 F.2d 1342, 1346
(9th Cir. 1985) (“An attorney does not simply act as an advocate for his client; he is also
an officer of the court. As such, an attorney has a duty of good faith and candor in dealing
with the judiciary.”). The parties are reminded of their duty of candor to the Court and will
be ordered to show cause for any further lack of candor.
III. 	CONCLUSION
For the foregoing reasons, the Court DENIES the joint motion. The parties must
comply with all court ordered dates and deadlines. ECF Nos. 8, 16.
IT IS SO ORDERED.
Dated: February 13, 2026 	_____________________________________________
HON. MICHELLE M. PETTIT
United States Magistrate Judge
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