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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

FIRST NATIONAL INSURANCE ) CIV-S-04-0836 GEB JFM

COMPANY OF AMERICA, )

)

Plaintiff, ) ORDER

)

v. )

)

MBA CONSTRUCTION, et al. )

)

Defendants. )

 )

Defendant MBA Construction (“Mack”) moves for a stay of this

action until the completion of a state court action in Shasta County

Superior Court (“State Case”) or, in the alternative, for a

continuance of the trial date for approximately six months. Plaintiff

opposes the motion. 

In the State Case, Mack sued “the Redding Unified School

District (“School”) alleging, among other things, breach of contract

for work performed on the Sequoia Middle School Auditorium for which

Mack was not fully paid by the School.” (Def.’s Mot. to Stay at 1.) 

Mack contends that “the facts and issues [in this action and the State

Case] are virtually the same,” and “it is likely that most, if not all

issues [in this action] will be resolved in the State Case.” (Id. at

4.) Mack also “seeks a continuance based on unavailability of

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2

counsel” since Mack’s trial counsel “has conflicts with” the trial

date currently set in this action. (Id. at 4-5.) Mack contends that

its motion “is not brought . . . for any lack of diligence in

preparing for the Federal Case trial”; a continuance would be useful

to Mack since it would “slow First National’s accrual of attorneys

fees in the Federal Case and narrow issues related to the payment of

subcontractors, and [allow for] analysis of construction delay damages

through expert testimony in the State Case”; “the wait or slight

inconvenience [of continuing the trial] is offset by the convenience

which will be served by having the State Case finalized so as to make

more clear the Federal Case issues and liability”; and Mack will

suffer great prejudice because it “is currently having to prosecute

one action in state court and defend another action based on the same

facts in federal court.” (Def.’s Mot. at 5, 6.)

Plaintiff counters that “[t]here is no reason to stay this

case based on the School District Action.” (Pl.’s Opp’n at 3.) 

Plaintiff contends that it “is entitled to recover its damages from

the Defendants regardless of whether Mack Construction is successful

in its attempt to pass same through to the School District,” and

“there is no legal reason why particularly First National should be

forced to subsume its claims against Mack Construction to Mack

Construction’s recovery in the School District Action.” (Id. at 2.) 

Plaintiff contends Mack’s motion should be denied since Plaintiff will

be prejudiced by a stay or continuation of this case; this action and

the State Case do not involve the same parties or the same issues;

Mack’s counsel has known about the trial date in this action for over

a year; there is no assurance that the State Case will actually go to

trial in October since it has already been continued several times;

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3

Mack has evaded discovery in this action; and this action is ripe. 

(Id. at 4-11.) 

Federal Rule of Civil Procedure 16(b) states that a

scheduling order “shall not be modified except upon a showing of good

cause.” “Rule 16's ‘good cause’ standard focuses on the diligence of

the party seeking amendment.” Jackson v. Laureate, Inc., 186 F.R.D.

605, 607 (E.D. Cal. 1999) (citing Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 609 (9th Cir. 1992)). “Because good-faith

compliance with Rule 16 plays an important role in [the case

management] process, not only must parties participate from the outset

in creating a workable Rule 16 scheduling order but they must also

diligently attempt to adhere to that schedule throughout the

subsequent course of the litigation.” Jackson, 186 F.R.D. at 607

(internal citation and quotation marks omitted). The parties’ Joint

Status Report, filed August 16, 2004, indicated that “the present

action by First National against the Defendants is not dependent upon

resolution of the [State Case] and should not be affected thereby.” 

(Joint Status Report at 6.) Furthermore, Mack has not shown why the

“conflicts” that its trial counsel currently faces could not have been

avoided. 

Since Mack’s present position about trying the State Case

before trying this action is contrary to its position in the Joint

Status Report, Mack has not shown that it diligently assisted the

Court in creating a workable Rule 16 order. The Court used the

parties’ Joint Status Report when scheduling trial in the Status

(Pretrial Scheduling) Order. Here, Mack fails to explain why it

should not be bound by its indication in the Joint Status Report that

the trial of this action could be scheduled regardless of when the

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1 Mack argues that the factors set forth in United States

v. Flynt, 756 F.2d 1352 (9th Cir. 1985), (“Flynt factors”), dictate

that this action should be stayed until the State Case is resolved.

In United States v. Flynt, a criminal case, the Ninth Circuit

identified four factors that appellate courts consider when

reviewing a denial of a request for a continuance. The Flynt

factors do not support granting Mack’s motion. 

Mack also contends that its motion should be granted

since “The claims involving subcontractors [and Plaintiff’s claim

for attorney’s fees] are not ripe until the State trial has

concluded.” (Def.’s Mot. at 7.) However, Mack’s argument is

unavailing since Mack has not shown how Plaintiff’s claims for

collateralization and indemnification do not constitute a “live

case or controversy.” Clinton v. Acequia, Inc., 94 F.3d 568, 572

(9th Cir. 1996).

4

State Case is resolved. Having so indicated, Mack now bears the

reasonably foreseeable consequences of its failure to have brought its

present position to the scheduling judge before the Status (Pretrial

Scheduling) Order was created. See In re San Juan Dupont Plaza Hotel

Fire Litig., 11 F.3d 220, 228, 229 (1st Cir. 1997) (stating it is

essential “that counsel collaborate with the trial judge from the

outset in fashioning workable programmatic procedures” or counsel must

“bear the reasonably foreseeable consequences for their failure to do

so.”). Further, Mack has not shown that it diligently attempted to

adhere to the schedule set forth in the Status (Pretrial Scheduling)

Order, since Mack has not explained why it could not have avoided what

it states are trial “conflicts.” 

For the stated reasons, Mack has not shown that good cause

justifies amending the Status (Pretrial Scheduling) Order issued in

this action. Therefore, Mack’s motion is denied.1

IT IS SO ORDERED.

DATED: August 4, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge 

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