Debeaubien v. State of CA

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PHILIP DEBEAUBIEN, No. 2:19-cv-01329-WBS-DB 13 Plaintiff, 14 v. ORDER DENYING DEFENDANTS’ MOTION TO MODIFY THE 15 STATE OF CALIFORNIA, CALIFORNIA SCHEDULING ORDER AND EX PARTE HIGHWAY PATROL, TODD BROWN, APPLICATIONS TO EXTEND OR 16 SABRENA SWAIN, JOY GRAF, REGGIE STAY EXPERT DISCLOSURE WHITEHEAD, RYAN STONEBRAKER, DEADLINES 17 BRENT NEWMAN, and JEREMY DOBLER, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiff Philip Debeaubien (“plaintiff”) brought this 22 action under 42 U.S.C. § 1983 against the State of California; 23 the California Highway Patrol; CHP officers Todd Brown, Reggie 24 Whitehead, Ryan Stonebraker, Brent Newman, and Jeremy Dobler 25 (collectively the “CHP defendants”); Joy Graf; and Sabrena Swain; 26 seeking damages on various federal and state law claims. (See 27 First Amended Complaint (Docket No. 30).) Defendants now request 28 extensions of several deadlines set forth in the Pretrial Order 1 of January 29, 2021. 2 Specifically, (1) the CHP defendants request via ex 3 parte application that the court extend the deadlines for expert 4 and rebuttal expert disclosures by three months each, (see Docket 5 No. 86); (2) Graf and Swain move to extend all remaining pretrial 6 deadlines and the trial date by 2-3 months each, (see Docket No. 7 89); and (3) Graf and Swain request via ex parte application that 8 the court stay the expert and rebuttal expert disclosure 9 deadlines pending a ruling on the first two requests, (see Docket 10 No. 94).1 11 I. Legal Standard 12 Under Federal Rule of Civil Procedure 16(b), “[a] 13 schedule may be modified only for good cause and with the judge’s 14 consent.” Fed. R. Civ. P. 16(b)(4). “Unlike Rule 15(a)’s 15 liberal amendment policy which focuses on the bad faith of the 16 party seeking to interpose an amendment and the prejudice to the 17 opposing party, Rule 16(b)’s ‘good cause’ standard primarily 18 considers the diligence of the party seeking the amendment.”2 19 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 20 1992); see also Fed. R. Civ. P. 16, Advisory Committee's Notes 21 (1983 Amendment) (directing courts to consider whether a deadline 22 “cannot reasonably be met despite the diligence of the party 23 1 Because the court will address all three requests in 24 this order, Graf and Swain’s ex parte application for a stay of the expert disclosure deadlines pending consideration of the 25 first two requests is DENIED AS MOOT.

26 2 Although the CHP defendants style their request as an 27 ex parte application, the court will evaluate it under the Rule 16 standard, like Graf and Swain’s motion, given that it also 28 seeks modification of the scheduling order. 1 seeking the extension”). 2 “If that party was not diligent, the inquiry should 3 end.” Johnson, 975 F.2d at 609. Judges in this district have 4 further articulated the test to evaluate diligence, under which a 5 movant may establish good cause by showing: 6 (1) that it was diligent in assisting the Court in creating a workable Rule 16 order; (2) that, 7 despite its diligent efforts to comply, its noncompliance with a Rule 16 deadline occurred 8 because of the development of matters that could not have been reasonably foreseen or anticipated; 9 and (3) that it was diligent in seeking amendment of the Rule 16 order, once it became apparent that 10 it could not comply with the order. 11 U.S. E.E.O.C. v. Placer ARC, 2:13-cv-0577 KJM EFB, 2014 WL 12 5419879, at *2 (E.D. Cal. Oct. 23, 2014) (citing Van Scoy v. New 13 Albertson’s Inc., 2:08–cv–2237 MCE KJM, 2011 WL 1079914, at *3 14 (E.D. Cal. Mar. 21, 2011); Hood v. Hartford Life & Acc. Ins. Co., 15 567 F. Supp. 2d 1221, 1224 (E.D. Cal. 2008); Weco Supply Co. v. 16 Sherwin–Williams Co., 1:10–cv–0171 AWI BAM, 2012 WL 1424437, at 17 *3 (E.D. Cal. Apr. 24, 2012)) (alterations adopted). Although 18 “the focus of the inquiry is upon the moving party’s reasons for 19 seeking modification,” a court may also consider prejudice to the 20 opposing party in making its determination. Johnson, 975 F.2d at 21 609. 22 Once a party seeking amendment has shown “good cause,” 23 it must also show that the amendment is proper under Rule 15. 24 See id. at 608 (citations omitted). Under that rule, “[t]he 25 court should freely give leave [to amend] when justice so 26 requires.” Fed. R. Civ. P. 15(a)(2). However, leave should not 27 be granted under Rule 15 if amendment (1) would cause prejudice 28 to the opposing party, (2) is sought in bad faith, (3) creates 1 undue delay, or (4) is futile. Chudacoff v. Univ. Med. Ctr. of 2 S. Nev., 649 F.3d 1143, 1153 (9th Cir. 2011) (citing Foman v. 3 Davis, 371 U.S. 178, 182 (1962)). “Because Rule 16(b)’s ‘good 4 cause’ inquiry essentially incorporates the first three factors, 5 if a court finds that good cause exists, it should then deny a 6 motion for leave to amend only if such amendment would be 7 futile.” J & J Sports Prods., Inc. v. Maravilla, 2:12-cv-02899 8 WBS EFB, 2013 WL 4780764, at *1 (E.D. Cal. Sept. 5, 2013). 9 II. Analysis 10 All defendants seek extensions of the expert disclosure 11 deadlines. (See generally CHP Ex Parte App. to Extend Exp. 12 Discl. Dates (“CHP App.”) (Docket No. 86); Mot. to Amend Sched. 13 Order (“Mot.”) (Docket No. 89).) They argue that additional time 14 is necessary so that they may submit complete expert disclosures, 15 including one by a physician following an independent medical 16 examination of plaintiff pursuant to Rule 35, and one by an 17 expert economist to evaluate plaintiff’s damages. (See CHP App. 18 at 2-3 (Docket No. 86); Mot. at 5-6 (Docket No. 89); Opp. to CHP 19 App. at 3-4 (Docket No. 88); Opp. to Mot. at 11-13 (Docket No. 20 98).) Defendants Graf and Swain also seek extension of the 21 remaining deadlines so that they may reopen plaintiff’s 22 deposition to address issues relating to his allegations against 23 them and subpoena records from him relating to damages. (See 24 Mot. at 5 (Docket No. 89).) Although the CHP defendants have not 25 requested an extension of the remaining deadlines, they also note 26 their desire to depose plaintiff regarding damages. (See CHP 27 App. at 2 (Docket No. 86). 28 In seeking extension of the expert disclosure 1 deadlines, Graf and Swain cite plaintiff’s counsel’s failure to 2 respond to their requests that plaintiff voluntarily dismiss Graf 3 from the case, based on their belief that July 30 and August 11, 4 2021 depositions showed no evidence of liability as to Graf. 5 (See Defs.’ Reply at 4 (Docket No. 100); Song Suppl. Decl. at 6 ¶¶ 5-6 (Docket No. 100-1).) Although they make no such argument 7 as to Swain, they refer to their delay in retaining an expert for 8 both defendants as “[c]ounsel’s defense strategy, based on the 9 lack of evidence against their respective clients.” (Defs.’ 10 Reply at 10 (Docket No. 100).) 11 In other words, defendants acknowledge that their delay 12 was a strategic choice based on their hope that plaintiff would 13 voluntarily dismiss Graf -- obviating the need to retain an 14 expert on her behalf -- which they contend does not evince a lack 15 of diligence. (See id. at 4.) They do so notwithstanding their 16 concession that they did not retain their expert until after 17 plaintiff’s counsel did not respond to their requests. (See 18 id.)3 19 They also contend that they were delayed in providing a 20 transcript of Swain’s July 30, 2021 deposition to their expert, 21 in turn preventing the expert from timely providing a report, 22 because they did not receive the transcript from plaintiff’s 23

24 3 Graf and Swain note that their expert had a pre- scheduled two-week vacation in early September, which they 25 contend further prevented them from obtaining an expert opinion in time for the September 10 deadline. (See Defs.’ Reply at 4 26 (Docket No. 100).) They add that, following that vacation, she 27 completed her reports on September 29 and 30, 2021, but acknowledge that counsel did not produce the rebuttal report 28 before the October 1 deadline. (See id.) 1 counsel until August 27, 2021. (See Swain Ex Parte App. to Stay 2 Exp. Discl. Deadlines at 5 (“Swain App.”) (Docket No. 94); 3 Leonard Decl. at ¶ 8 (Docket No. 94-1).)4 They contend that the 4 delayed report was also partly a result of plaintiff’s counsel 5 not requesting Graf’s deposition until June 27, 2021. (See 6 Defs.’ Reply at 5 (Docket No. 100).) However, as they 7 acknowledged during oral argument, in response to that request, 8 counsel for Graf offered August 11 and 18 as the earliest dates 9 for the deposition -- more than one month later, and less than 10 one month before the September 10 expert disclosure deadline. 11 All defendants point to extensive discovery requests 12 propounded by plaintiff as further justification for seeking 13 extension of pretrial deadlines. In essence, they argue that for 14 much of the past several months, they have been so consumed with 15 responding to those requests and participating in depositions 16 plaintiff had requested that they were left with insufficient 17 time to engage in their own end of the discovery process, 18 including timely submitting their expert disclosures. (See CHP 19 App. at 2-4 (Docket No. 86); Mot. at 4-6 (Docket No. 89).) 20 All defendants further contend that the COVID-19

21 4 It is unclear to the court why Graf and Swain could not 22 have simply ordered a transcript from the deposition reporter, and they do not assert that they were unable to do so. 23 Graf and Swain submitted expert disclosures on September 10, disclosing one expert witness, Dr. Sarah Polfliet, 24 though they and their counsel acknowledge that neither disclosure included an expert report. (See Swain App. at 3 (Docket No. 94); 25 Leonard Decl. at ¶¶ 24-25 (Docket No. 94-1).) In a September 14 email to plaintiff’s counsel, counsel for Graf expressed her 26 belief that no expert report was required, (see Katz Decl., Ex. K 27 (Docket No. 98-1)), notwithstanding Federal Rule of Civil Procedure 26(a)(2)(B), though she subsequently requested 28 additional time to provide one, (see id., Ex. G). 1 pandemic, along with consequent emergency stay-at-home orders, 2 have also frustrated their ability to engage in discovery and 3 meet the scheduling order’s deadlines, though they provide little 4 detail on this point. (See CHP App. at 2 (stating that stay-at- 5 home orders “have . . . slowed down counsel from completing the 6 non-expert discovery needed, including taking the second session 7 of Plaintiff’s deposition”) (Docket No. 86); Mot. at 6 (stating 8 that the pandemic has “cannibaliz[ed] valuable time needed to 9 conduct discovery and to prepare the case for trial,” and that 10 “[t]he parties had . . . anticipated that the pandemic would wane 11 such that Plaintiff’s deposition . . . could be conducted in 12 person” (Docket No. 89).) 13 Finally, the CHP defendants contend that they need 14 extra time to submit their expert disclosures because they have 15 had new counsel as of mid-July, who states that he “ha[s] major 16 cases demanding [his] attention, including cases dealing with 17 water delivery and the Santa Ana Pipeline,” and that consequently 18 “[i]t has taken time to get up to speed on this case.” (See CHP 19 App. at 2, Helfat Decl. at ¶¶ 3-4 (Docket No. 86).)5 20 These explanations wholly fail to demonstrate the 21 diligence required to justify the amendments to the scheduling 22 order sought by defendants. That Graf and Swain hoped plaintiff 23 would voluntarily dismiss Graf from the case, and on this basis 24 delayed their decision to retain an expert until it was too late 25 for her to timely provide the required report -- in part because, 26

27 5 The CHP defendants are represented by the California Attorney General’s office, where both their current and previous 28 counsel serve as Deputy Attorneys General. (See Docket No. 83.) 1 it appears, they did not learn she would be going on vacation 2 until they retained her in August -- simply represents a gambit 3 to avoid having to retain an expert for Graf. That this fails to 4 show diligence is evidenced by the fact that, even if their 5 effort had proved successful, Swain’s need for an expert would 6 not have changed, as they only sought dismissal of Graf. Thus, 7 their strategy cannot explain the delay as to Swain. See 8 Johnson, 975 F.2d at 609 (modification of scheduling order’s 9 deadlines appropriate “if [the deadlines] cannot reasonably be 10 met despite the diligence of the party seeking the extension”) 11 (citation omitted). 12 Further, when asked in June to schedule a deposition of 13 Graf, her counsel offered August 11 as the earliest possible 14 date. At oral argument, Graf’s counsel stated that this was 15 because neither she nor Graf had any room in their schedules in 16 July. Even if true, and if -- as Graf contends -- the expert 17 needed Graf’s deposition transcript before she could prepare her 18 report, counsel should have known to retain an expert early 19 enough to enable her to timely complete the report following the 20 deposition.6 That the expert Graf and Swain chose to retain 21 happened to have a pre-scheduled vacation during that period did 22 not excuse their obligations to meet that deadline. Nor did it 23 excuse them from, at the very least, notifying the court as soon 24 as it became clear that they would be unable to do so -- not 25 weeks later, on the date expert disclosures were due, as Graf and 26 Swain have done here. (See Mot. (Docket No. 89); Placer ARC, 27 6 Unlike Swain, Graf has not asserted that she was unable 28 to timely obtain a transcript of her August 11 deposition. 1 2014 WL 5419879, at *3 (parties seeking modification of 2 scheduling order must “timely object[ ] to an order with which 3 [they] took issue”).) 4 Defendants’ remaining arguments are even less 5 persuasive. While it may be that plaintiff has sought extensive 6 discovery in this case, this does not excuse defendants from 7 fulfilling their own obligations under the scheduling order, of 8 which they have been aware since January. They provide little 9 explanation for their failure to seek their desired discovery by 10 now. Moreover, their claims that they had no time to do so for 11 the better part of a year are belied by the significant effort 12 they appear to have put into opposing plaintiff’s discovery 13 requests, as noted in Magistrate Judge Barnes’s recent -- and 14 sixth -- order granting plaintiff’s motion to compel discovery. 15 (See Docket No. 109.) 16 In that order, Judge Barnes specifically observed that 17 “this is not the first[ ]time defendants’ conduct has been found 18 wanting,” noting that she previously issued monetary sanctions 19 “in light of defendants’ repeated obstruction of discovery,” and 20 stated that she “remain[ed] concerned about defendants’ apparent 21 habit of unnecessary delay and waste of resources.” (Id. at 2; 22 see also Docket Nos. 23 (granting prior motion by plaintiff to 23 compel discovery), 46 (same), 70 (same), 72 (same), 82 (same, 24 awarding monetary sanctions “in light of defendants[’] repeated 25 obstruction of discovery” and other issues, and cautioning “that, 26 at some point, the undersigned may find monetary sanctions 27 insufficient to correct defendants’ behavior and look to more 28 extreme sanctions”).) 1 The pattern of conduct Judge Barnes describes is 2 inconsistent with the good cause defendants are required to show 3 in seeking modification of the scheduling order. It also 4 suggests that defendants assumed they could focus their efforts 5 on challenging plaintiff’s discovery requests and nevertheless 6 receive additional time to meet their own deadlines. However, as 7 the Ninth Circuit stated in Johnson: 8 A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly 9 disregarded by counsel without peril. [A] district court’s decision to honor the terms of 10 its binding scheduling order does not simply exalt procedural technicalities over the merits of [the 11 moving party’s] case. Disregard of the order would undermine the court’s ability to control its 12 docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the 13 cavalier. 14 975 F.2d at 610 (quotation marks and citations omitted). As 15 such, the court is unwilling to reward parties’ dilatory tactics 16 by amending it whenever those tactics prove unsuccessful. 17 Nor do defendants’ vague and generalized references to 18 the COVID-19 pandemic excuse their lack of diligence. The court 19 does not by any means deny the seriousness of the pandemic. 20 However, as another California district court aptly stated under 21 similar circumstances: 22 [H]ere, Plaintiff simply says the word “COVID-19” as if it, in and of itself, is justification to 23 excuse delays and dereliction without providing any support. For example, was Plaintiff’s expert 24 herself affected by the virus, or someone she cares for? Did COVID-19 prevent the expert from 25 accessing important information she needed? Apparently, none of these things or more occurred 26 because if they had, Plaintiff most assuredly would have included these challenges in her 27 papers. 28 Martinez v. Costco Wholesale Corp., 336 F.R.D. 183, 188 (S.D. 1 Cal. 2020). Here, defendants have similarly failed to explain 2 how the pandemic has prevented them from meeting the scheduling 3 order’s deadlines, which is noteworthy considering that it 4 clearly has not prevented them from obstructing plaintiff’s 5 discovery efforts. Accordingly, this attempt to justify their 6 delay likewise fails to show good cause to amend the order. 7 Finally, the CHP defendants’ current counsel has been 8 assigned to this case since mid-July, which should have been 9 adequate time to complete any efforts begun by their prior 10 counsel to timely retain necessary experts and produce their 11 reports.7 Moreover, it is the Attorney General himself who 12 represents the CHP defendants in this case. And it is his 13 responsibility to assign attorneys in his office who are able to 14 adequately represent state defendants and meet the deadlines 15 previously set by the court. It is no excuse that here the 16 Attorney General decided to replace the lead attorney with one 17 who lacked sufficient time to comply with the existing scheduling 18 order. CHP defendants’ counsel’s asserted lack of time to work 19 on this case thus fails to constitute good cause to amend the 20 order. 21 Two additional factors further demonstrate the absence 22 of good cause under these circumstances. First, as noted above, 23

24 7 Further, as current counsel for the CHP defendants acknowledged at oral argument, he had been included in 25 communications relating to this case since before he formally joined the case in July, and thus would have been apprised of any 26 need for experts even sooner. (See also Katz Decl. at ¶ 23 27 (attesting that counsel for plaintiff was advised on or soon after June 6 that current counsel for CHP defendants would be 28 assuming the role of lead counsel in their defense).) 1 whether a party “was diligent in seeking amendment of the 2 [scheduling] order, once it became apparent that it could not 3 comply with the order,” can help demonstrate good cause to amend. 4 See Placer ARC, 2014 WL 5419879, at *2. Here, the parties have 5 been aware of the September 10 and October 1 expert disclosure 6 deadlines since January. (See Docket No. 38.) No defendant 7 contends that plaintiff’s claims against them were of such a 8 nature that they could not have foreseen the need to retain one 9 or more experts. Accordingly, the CHP defendants’ delay until 10 September 8, 2021 (two days before the initial expert disclosure 11 deadline) and Graf and Swain’s delay until September 10 (the day 12 of the deadline) to request extensions demonstrates a lack of 13 diligence in seeking amendment. Cf. Martinez, 336 F.R.D. at 187 14 (granting motion to strike late-submitted expert disclosures 15 where submitting party “had nearly eleven months to prepare and 16 submit timely expert reports . . . . [y]et[,] even with ample 17 time, . . . waited until four days before the expert disclosure 18 was due to ask for an extension”). 19 Second, it appears that defendants have taken very few 20 steps to pursue their own discovery thus far. As plaintiff 21 points out, and as defendants have not disputed, defendants have 22 yet to either schedule another session in which to depose 23 plaintiff or take action to obtain an independent medical 24 examination of him –- some of the discovery for which now they 25 claim to need additional time -- (see Opp. to Mot. at 10-13 26 (Docket No. 98)), despite having had months to do so before now. 27 For all of the foregoing reasons, the court concludes that 28 defendants have not shown the requisite diligence in seeking 1 amendment of the scheduling order. 2 Although ordinarily if the court concludes that “th[e] 3 party [seeking amendment] was not diligent, the inquiry should 4 end,” “the existence or degree of prejudice to the party opposing 5 the modification might supply additional reasons to deny a 6 motion.” See Johnson, 975 F.2d at 609. Here, granting the 7 relief sought by defendants would result in unfair prejudice to 8 plaintiff. Plaintiff, who opposes defendants’ requests, has 9 timely submitted his expert disclosures, notifying defendants of 10 seven experts upon whom he may rely and providing an expert 11 report from each. (See Opp. to Mot. at 21 (Docket No. 98); Katz 12 Decl., Ex. C (Docket No. 98-1).) If the court were to grant 13 defendants additional time to prepare and submit theirs, 14 defendants would receive an unfair tactical advantage by having 15 additional time and materials to have their expert witness 16 reports prepared. For this reason as well, the court concludes 17 that defendants lack good cause to receive an extension.8 18 IT IS THEREFORE ORDERED that that the CHP defendants’ 19 ex parte application to extend the expert disclosure deadlines, 20 as well as Graf and Swain’s motion to amend the scheduling order, 21 be, and the same hereby are, DENIED.9 22 /// 23 8 Because the court does not find good cause to grant 24 defendants’ requested amendments to the scheduling order, the court does not reach the issue of whether Rule 15’s requirements 25 are satisfied.

26 9 If the court’s denial of defendants’ requests puts them 27 at a disadvantage, it is a consequence, which should have been anticipated, of their attorneys’ lack of diligence and failure to 28 comply with the court’s orders. See Johnson, 975 F.2d at 610. een en nnn nn ne nn nnn nn en nn on nn nnn NE OS I IEE

1 Dated: October 22, 2021 hi blew A hh hee WILLIAM B. SHUBB 2 UNITED STATES DISTRICT JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14