Eisen v. Day
- Virginia Demarchi
- 5:21-cv-05349
- U.S. District Court · Northern District of California
- 3
In Eisen v. Day, Judge Demarchi found good cause for a modest schedule adjustment after defense counsel’s illness, ordering updated proposals and a conference.
The order affects plaintiffs, Emily Day, Cosmo Alleycats, LLC, and their attorneys by requiring them to address discovery and other scheduling issues and attend a further case-management conference.
What happened
In Eisen v. Day, the defendant and a counterclaimant asked the court to pause the case and change its schedule because their lawyer became ill and they needed new counsel.
The plaintiffs opposed changing the schedule. The court recognized that the defense side had caused several delays, but found that the delays were not caused by a lack of diligence given the lawyer’s continuing health problems and the need to obtain new counsel.
Judge Virginia K. Demarchi found good cause for a modest schedule adjustment. She ordered the parties to discuss proposed changes, submit a joint update by August 18, 2022, and attend another case-management conference on August 23, 2022.
The detailed version
- Eisen v. Day · No. 5:21-cv-05349
- Virginia Demarchi
- Aug. 4, 2022
Background
Defendant-counterclaimant Emily Day and counterclaimant Cosmo Alleycats, LLC, referred to together as the “Day parties,” moved to stay the proceedings and modify the case-management schedule. Their motion relied on the illness of their original counsel, Cari Cohorn, and the need to obtain new counsel. Cohorn reported that she became ill with COVID-19 in January 2022, continued to experience lasting complications, and had been hospitalized several times. The Day parties later retained new counsel, Andrew McClelland, who entered an appearance.
Plaintiffs opposed the motion. They did not challenge Cohorn’s account of her illness, but argued that she should have acted months earlier to address its effect on her ability to represent the Day parties.
Legal standard
Federal Rule of Civil Procedure 16(b)(4) allows a court to modify a case-management order for “good cause” and with the judge’s consent. The court explained that this standard primarily focuses on the diligence of the party seeking the change. A schedule may be modified when it could not reasonably be met despite that party’s diligence.
Court’s analysis and order
The court observed that the Day parties had been responsible for numerous delays in completing discovery tasks and postponing the settlement conference during the preceding six months. However, it did not conclude that those delays resulted from Cohorn’s lack of diligence. The court acknowledged that she might have recognized earlier that she could no longer continue representing the Day parties, even with additional assistance, but found good cause under the circumstances to make a modest schedule adjustment so new counsel could act for the rest of the case.
The court ordered the parties to confer about schedule changes and jointly submit a further case-management statement by August 18, 2022. That statement had to address the status of fact and expert discovery, proposed deadlines for completing that discovery, anticipated dispositive or Daubert motions, and a proposed final hearing date for those motions. The court also scheduled a further case-management conference for August 23, 2022, by Zoom webinar.
The opinion does not expressly state that the motion was “granted,” “denied,” or “granted in part and denied in part.” It does state that the court found good cause for a modest schedule adjustment and issued the listed scheduling directives; it does not order the requested stay in the quoted disposition.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.