United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN JUDGE UNITED STATES MAGISTRATE
Estep (“Estep”) brings this action against his
former employer, Forever 21 Retail, Inc. (“Forever
21”). Pending before the Court is Estep's motion to
amend the Scheduling Order and reopen discovery for the
limited purpose of assessing Forever 21's financial
status. (ECF No. 47.) Forever 21 opposes the motion. (ECF No.
49.) For the following reasons, the Court grants Estep's
motion to amend the Scheduling Order and reopen discovery.
Court's November 13, 2018, Opinion and Order contains a
detailed account of the background facts. (ECF No. 42.)
STANDARD OF REVIEW
[case management] schedule may be modified only for good
cause and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). The Ninth Circuit has instructed district courts to
consider the following factors in deciding whether to amend a
scheduling order to reopen discovery: (1) whether trial is
imminent; (2) whether the request is opposed; (3) whether the
non-moving party would be prejudiced; (4) whether the moving
party was diligent in obtaining discovery within the
guidelines established by the court; (5) the foreseeability
of the need for additional discovery in light of the time
allowed for discovery by the district court; and (6) the
likelihood that discovery will lead to relevant evidence.
City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060,
1066 (9th Cir. 2017) (citation omitted). The Rule 16 good
cause standard focuses on the “reasonable diligence of
the moving party.” Noyes v. Kelly Servs., 488
F.3d 1163, 1174 n.6 (9th Cir. 2007) (citation omitted). If
the moving party “was not diligent, the inquiry should
end and the motion to modify should not be granted.”
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002) (citation and quotation marks omitted).
21 opposes Estep's motion for three reasons: (1) Estep
failed to confer with Forever 21 as required by Local Rule
(“LR”) 7-1(a)(1)(A); (2) Estep's motion
contradicts prior representations he made to the Court; and
(3) Estep seeks information that is not discoverable.
(Def.'s Opp'n at 1-2.)
Local Rule 7-1
7-1(a)(1)(A) requires that the first paragraph of every
motion certify that “the parties made a good faith
effort through personal or telephone conferences to resolve
the dispute and have been unable to do so.” LR
7-1(a)(1)(A). Estep failed to comply with this rule by
corresponding via email only. (See Jennifer Warberg
Decl. ¶ 2, Ex. A at 1, Dec. 31, 2018.) Nonetheless, the
Court will address Estep's motion because, after
reviewing the parties' briefs on this issue, the Court
finds that conferral would have been futile. See
Hingston v. Quick Collect, Inc., No.
3:15-cv-1202-HZ, 2016 WL 4059158, at *5 (D. Or. July 28,
2016) (declining to dismiss a motion for failure to comply
with LR 7-1 when “conferral on the present matter would
have been futile”); see also Williams v.
Lincoln Nat. Life Ins., 121 F.Supp.3d 1025, 1030 (D. Or.
2015) (considering a motion on its merits when it was likely
that “if the motion were denied on procedural grounds,
the movant immediately would seek to refile the
21 asks the Court to deny Estep's motion to reopen
discovery under the doctrine of judicial estoppel because
Estep prevailed on a contradictory position regarding the
need for additional discovery in his motion to file an
amended complaint adding punitive damages. (Def.'s
Opp'n at 3.) The Court disagrees.
estoppel “generally prevents a party from prevailing in
one phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.”
New Hampshire v. Maine, 532 U.S. 742, 749 (2001)
(citation omitted). Courts consider the following
non-exhaustive factors in deciding whether to apply the
doctrine in a particular case: (1) whether a party's
later position is “clearly inconsistent” with its
earlier position; (2) whether the party “succeeded in
persuading a court to accept” its earlier position; and
(3) whether the party asserting an inconsistent position
“would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.”
New Hampshire, 532 U.S. at 750-51 (citations
omitted); see alsoCity of Portland ...