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This matter was determined to be suitable for decision without *

oral argument. L.R. 78-230(h).

This is Plaintiff’s second motion to amend the Rule 16 1

Scheduling Order. Its first request was granted on December 12, 2005.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION, )

) 2:04-cv-1752-GEB-PAN

Plaintiff, )

)

v. )

) ORDER*

RAMON GUERRERO d/b/a EL )

GRULLENSE RESTAURANT II, and RASIL )

G, INC., )

)

Defendants. )

)

On March 7, 2006, the parties filed a stipulation for

referral to the Voluntary Dispute Resolution Program (“VDRP”). On the

same day, Plaintiff noticed a motion to amend the Rule 16 Scheduling

Order (“Motion to Amend”), and concurrently filed an application to

shorten time for hearing the Motion to Amend. Plaintiff requests a 1

three-month extension of the deadlines prescribed in the Scheduling

Case 2:04-cv-01752-GEB-PAN Document 29 Filed 03/10/06 Page 1 of 3
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Order “to allow the participation of the parties in the Court’s VDRP.” 

(Motion to Amend at 2.) Defendants stipulated to Plaintiff’s request. 

For the reasons stated below, the Motion to Amend is denied;

therefore, the application to shorten time is moot and denied. 

Furthermore, the case is not referred to the VDRP since the Motion to

Amend indicates that the parties’ request for referral was contingent

upon amendment of the Scheduling Order.

The Scheduling Order issued on January 11, 2005, “shall not

be modified except by leave of Court upon a showing of good cause.” 

(Scheduling Order at 8-9.) The good cause standard focuses on the

diligence of the party seeking amendment: “The district court may

modify the pretrial schedule ‘if it cannot reasonably be met despite

the diligence of the party seeking the extension.’” Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting Fed. R.

Civ. P. 16 advisory committee’s notes (1983 amendment)). “If the

movant fails to demonstrate such diligence, “the inquiry should end.” 

Id. at 608.

Plaintiff does not discuss why the parties waited until

March 7, 2006, one week after the completion of discovery and a mere

three weeks before law and motion is scheduled to close, to request

vacation of the Scheduling Order dates and referral of this action to

the VDRP. See Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230,

1233 (E.D. Cal. 1996) (indicating that the due diligence inquiry

includes determination of whether the motion to amend could have been

brought earlier). 

"Rule 16 was drafted to prevent parties from disregarding

the agreed-upon course of litigation. . . ." Dilmer Oil Co., Inc. v.

Federated Mutual Ins. Co., 986 F. Supp. 959, 980 (D. S.C. 1997). 

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3

"Indeed, a scheduling order is the critical path chosen by the trial

judge and the parties to fulfill the mandate of Rule 1 in 'secur[ing]

the just, speedy, and inexpensive determination of every action.' 

Fed. R. Civ. P. 1." Marcum v. Zimmer, 163 F.R.D. 250, 253 (S.D. W.Va.

1995); accord Henley v. FMC Corporation, 172 F.R.D. 193, 198 n.6 (S.D.

W.Va. 1997).

Honoring the terms of the binding Rule 16 Order "does not

simply exalt procedural technicalities over the merits of [the

parties' respective cases]." Marcum, 163 F.R.D. at 255. Since the

parties fail to demonstrate that good cause justifies their requested

amendment, their request is denied. 

IT IS SO ORDERED.

Dated: March 10, 2006

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-01752-GEB-PAN Document 29 Filed 03/10/06 Page 3 of 3