B&G Foods North America, Inc. v. Embry

Opinion

B&G Foods North America, Inc., No. 2:20-cv-00526-KJM-DB Plaintiff, ORDER v. Kim Embry and Environmental Health Advocates, Inc., acting as enforcement representatives under California Proposition 65 on behalf of the State of California, Defendants. Plaintiff B&G Foods North America, Inc. applies ex parte for an order amending the case schedule and extending the discovery and dispositive motion deadlines by twelve weeks. For the following reasons, the court grants plaintiff's application. The court incorporates by reference the facts and procedural history of this case from its prior order. Prior Order, ECF No. 82. Plaintiff has four pending motions to compel before the Magistrate Judge in this case. See First Mot. Compel, ECF No. 137; Second Mot. Compel, ECF No. 138; Third Mot. Compel, ECF No. 139; Fourth Mot. Compel, ECF No. 143. The last hearing on the motions to compel is currently scheduled for March 1, 2024. See ECF No. 150. Plaintiff also represents it has a “motion to compel pending against Defendants’ expert witness in the Eastern District of Michigan” and “four subpoenas to Defendants’ state court attorneys that are

the subject of motions to quash pending in this district without a briefing schedule.” See Ex Parte Mem. at 1, ECF No. 144 (emphasis omitted). Fact discovery in this case is scheduled to end by February 23, 2024. Scheduling Order, ECF No. 87. Plaintiff argues “[d]efendants have produced just eight documents, consisting of five irrelevant email threads and three mail slips, apart from copies of the documents they previously produced to B&G Foods three years ago in the underlying state court actions.” Ex Parte Mem. at 1 (emphasis in original). Plaintiff also argues “[d]efendants have ignored seven additional requests to meet and confer.” Id. Plaintiff now applies ex parte to amend the case schedule and extend each deadline by twelve weeks to account for the pending motions related to discovery and defendants’ alleged unresponsiveness. Ex Parte Appl., ECF No. 144; Ex Parte Mem. Defendants oppose, Opp’n, ECF No. 145, and plaintiff has replied, Reply, ECF No. 147. A party seeking to amend the Rule 16 scheduling order must first satisfy the “good cause” standard of Rule 16(b)(4). Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 608–09 (9th Cir. 1992). A moving party may demonstrate “good cause” by (1) diligently assisting the court in creating a workable Rule 16 order, see Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999); (2) explaining why circumstances beyond that party’s control prevented compliance, see Johnson, 975 F.2d at 609; or (3) promptly and diligently seeking to amend the scheduling order, see Eckert Cold Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996). Prejudice to another party may reinforce the court’s decision to deny leave to amend, but Rule 16’s standard “primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.3d at 609. The court’s decision is one of discretion. Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985). Plaintiff has diligently pursued discovery by regularly requesting meet and confers with defendants, routinely communicating with defendants regarding discovery requests and filing motions to compel. See generally Ex Parte Mem. The pending matters in this case related to discovery pose genuine barriers to timely discovery. Moreover, the extension plaintiff requests— twelve weeks—is modest and defendants do not suggest any reason why the extension would be prejudicial. See Ex Parte Appl. at i; see generally Opp’n. Plaintiff has also provided a reasonable explanation for the timing of this application, which was filed after changes in hearing dates, after plaintiff received defendants’ motions to quash and after the parties met and conferred. See Reply at 2. In opposition, defendants argue: plaintiff has served “wildly overly broad discovery requests” that negate diligence, Opp’n at 1; some of plaintiff’s previous motion to compels were dismissed, id .at 1–2, 7; there is no need for the extension if plaintiff does not prevail on its pending motions, id. at 7; and the ex parte application was an improper means of raising this issue, id. at 7–8. Defendants also take issue with plaintiff’s “six (6) deposition and document subpoenas directed at Defendants’ counsel.” Id. at 3 (emphasis omitted). Defendants appear to challenge the merits of plaintiffs’ discovery motions and requests for production. In opposing plaintiff’s application, the only relevant argument defendants raise is whether the ex parte application is procedurally improper under the Local Rules and the court’s standing order. See id. at 7–8. Plaintiff did not state it could not obtain a stipulation for the issuance of this order, as counsel should have, but the motion is fully briefed. The application was accompanied by a declaration that otherwise satisfies the requirements outlined in the court’s standing order, see Decl. Chelsea Tirgardoon ¶¶ 2–5, ECF No. 144-1; Chief Judge Kimberly J. Mueller Standing Order for Civil Cases. The court finds it may consider the ex parte application, although counsel is cautioned to exhaust meet and confer in the future. Without assessing the merits of plaintiff’s allegations regarding defendants’ unresponsiveness to discovery, the court finds plaintiff has been sufficiently diligent and has shown good cause. For these reasons, the court grants plaintiff’s ex parte application to amend the case schedule. The amended deadlines are as follow:  Fact Discovery: May 17, 2024;  Disclosure of Expert Witnesses and Service of Expert Reports: June 28, 2024;  Rebuttal Expert Reports: July 19, 2024;  Expert Discovery: August 16, 2024; and  Dispositive Motions: October 11, 2024. ///// All other provisions of the Rule 16 Scheduling Order remain in effect. This order resolves ECF No. 144. DATED: January 29, 2024.

CHIEF STATES DISTRICT JUDGE