Doe v. Adams

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 NICOLE RAMOS, Case No. 1:21-cv-01103-JLT-SAB

12 Plaintiff, ORDER DENYING STIPULATED MOTION TO REOPEN DISCOVERY AND MODIFY 13 v. SCHEDULING ORDER

14 JANEL ESPINOZA, et al., (ECF No. 53)

15 Defendants.

16 17 I. 18 INTRODUCTION 19 This action was filed on July 20, 2021. (ECF No. 1.) On March 4, 2022, a scheduling 20 order issued, setting a nonexpert discovery deadline of July 5, 2022. (ECF No. 44.) On Friday, 21 July 1, 2022, the parties filed a stipulated motion to modify the scheduling order. (ECF No. 49.) 22 On July 5, 2022, the Court granted the parties’ motion, and modified the scheduling order. (ECF 23 No. 50.) The Court extended the nonexpert discovery deadline until October 12, 2022, and 24 continued the pretrial conference and trial dates in this matter. (Id.) 25 Currently before the Court is the parties’ stipulated motion to reopen discovery and 26 further modify the scheduling order, filed on November 4, 2022. (ECF No. 53.) Having 27 considered the parties’ stipulation as well as the Court’s file, the Court issues the following order denying the parties’ stipulated motion. 1 II. 2 LEGAL STANDARDS 3 This Court generally has significant discretion and authority to control the conduct of 4 discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Federal Rule of Civil 5 Procedure 16(b) provides that the district court must issue a scheduling order that limits “the 6 time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. 7 Civ. P. 16(b)(3)(A). A scheduling order “may be modified only for good cause and with the 8 judge’s consent.” Fed. R. Civ. P. 16(b)(4). 9 The “good cause” standard “primarily considers the diligence of the party seeking the 10 amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). To 11 establish good cause, the party seeking the modification of a scheduling order must generally 12 show that even with the exercise of due diligence, they cannot meet the requirement of that 13 order. Id. The prejudice to other parties, if any, may be considered, but the focus is on the 14 moving party’s reason for seeking the modification. Id. If the party seeking to amend the 15 scheduling order fails to show due diligence the inquiry should end, and the court should not 16 grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 17 (9th Cir. 2002) (citing Mammoth Recreations, 975 at 609). “Relevant inquiries [into diligence] 18 include: whether the movant was diligent in helping the court to create a workable Rule 16 order; 19 whether matters that were not, and could not have been, foreseeable at the time of the scheduling 20 conference caused the need for amendment; and whether the movant was diligent in seeking 21 amendment once the need to amend became apparent.” United States ex rel. Terry v. Wasatch 22 Advantage Grp., LLC, 327 F.R.D. 395, 404 (E.D. Cal. 2018) (internal quotation marks and 23 citation omitted) (alteration in original). 24 It is “significant” when a party is seeking a “retroactive reopening” of discovery rather 25 than extending the discovery deadline. W. Coast Theater Corp. v. City of Portland, 897 F.2d 26 1519, 1524 (9th Cir. 1990). “The difference [between the two types of requests] is considerable” 27 because “a request for an extension acknowledges the importance of a deadline, [while] a 1 ruling on a motion to amend a Rule 16 scheduling order to reopen discovery, the Court is to 2 “consider the following factors: 1) whether trial is imminent, 2) whether the request is opposed, 3 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent 4 in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the 5 need for additional discovery in light of the time allowed for discovery by the district court, and 6 6) the likelihood that the discovery will lead to relevant evidence.” City of Pomona v. SQM N. 7 Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017). 8 III. 9 DISCUSSION 10 In the Court’s July 5, 2022 order, the Court noted that while finding good cause to 11 modify the scheduling order, “the parties’ initial discovery schedule was aggressive, and the 12 parties likely knew of the need for modification earlier than the eve of the expiration of the 13 nonexpert discovery deadline.” (Id.) The Court granted the parties’ request to extend the 14 nonexpert discovery deadline to October 12, 2022. (Id.) Thereafter, the nonexpert discovery 15 deadline expired on October 12, 2022. (Id.) 16 In the instant motion filed on November 4, 2022, the parties proffer that since the last 17 modification, the parties have continued to work on discovery matters in this case, which has 18 included: (1) Plaintiff attending an IME with Defendant Escobedo’s psychology expert (Dr. 19 Michelle Conover, Ph.D., Q.M.E.) on September 6, 2022; (2) Defendant Escobedo’s counsel 20 taking volume one of Plaintiff’s virtual (Zoom) deposition on October 11, 2022; (3) the parties 21 propounding and responding to written discovery;1 and (4) Plaintiff’s counsel noticing the 22 deposition of Dr. Beach for October 14, 2022, which was the only mutually acceptable date for 23 all parties at the time. 24 The primary basis for the requested reopening of discovery and extension of all dates and 25 deadlines is that after attending volume one of Plaintiff’s deposition on October 11, 2022, 26 Defendant Dr. Beach came to the conclusion that he will be at a significant disadvantage in this

27 1 The parties have not presented any specific description of the discovery completed, and what further written discovery, irrespective of the needs of Dr. Beach, that the parties may or may not pursue if the nonexpert discovery 1 lawsuit if he continues to be self-represented. Dr. Beach made the determination that he needs 2 legal representation to be able to effectively defend the allegations being made against him in the 3 case, including needing counsel to defending him at his deposition. As such, after Plaintiff’s 4 deposition, Dr. Beach commenced to look for a civil rights defense attorney who could represent 5 him in this lawsuit. The parties submit that in light of Dr. Beach’s need for legal representation, 6 the deadlines in the scheduling order will need to be extended by approximately six (6) months 7 to allow for Dr. Beach to retain a defense attorney, for that attorney to familiarize themselves 8 with the case, for the taking of volume two of Plaintiff’s deposition (giving Dr. Beach’s counsel 9 the opportunity to ask questions relevant to Dr. Beach’s defense), for Dr. Beach’s counsel to 10 propound any written discovery to Plaintiff, and for Dr. Beach’s deposition to be taken by 11 Plaintiff’s counsel (which Dr. Beach’s counsel will defend). 12 As an additional factor, the parties proffer that Plaintiff and Defendant Escobedo’s 13 respective counsel had an informal discussion about exploring the possibility of settlement, and 14 proffer the proposed 6- month continuance would allow the parties to participate in a settlement 15 conference or mediation before needing to spend additional time and money on discovery and 16 pre-trial matters in this case. 17 Upon consideration of the above proffered reasons and legal standards, the Court finds 18 the parties have not been diligent. The moving parties have not demonstrated that even with the 19 exercise of due diligence, they could not meet the requirements of the scheduling order. 20 First, the parties did not apparently seek an extension with the Court to conduct the 21 deposition on October 14, 2022, beyond the October 12, 2022, nonexpert discovery deadline. 22 Instead, the parties proceeded without notification to the Court, perhaps in an effort to not burden 23 the Court with a stipulation on a minor deviation. However, at this juncture, that affront to the 24 deadlines contained in the scheduling order is only compounded by the fact the parties did not 25 submit the instant motion prior to the expiration of the discovery deadline, nor anywhere near the 26 deadline after the parties attended the deposition on October 11, 2022. See Phillips-Kerley v. 27 City of Fresno, No. 118CV00438AWIBAM, 2021 WL 1966387, at *2 (E.D. Cal. May 17, 2021) 1 of paper, idly entered, which can be cavalierly disregarded by counsel without peril.’ ”)). 2 Clearly, the parties should have moved for modification of the scheduling order earlier 3 than this motion was submitted, or at least notified the Court around the time of the deposition. 4 The parties have provided no reason or mention as to why the parties did not notify or present 5 this motion to the Court at an earlier date, despite the requirements for modification of discovery 6 deadlines that have been clearly stated in the Court’s orders. Therefore, the Court finds the 7 parties have not sufficiently demonstrated diligence, and have not demonstrated good cause for 8 reopening discovery or modification of the scheduling order. 9 As indicated in the Court’s August 4, 2020 order setting the mandatory scheduling 10 conference, the parties were to proffer a “firm cut-off date for non-expert discovery,” and the 11 order specified that: 12 The discovery/expert cut−off deadlines are the dates by which all discovery must be completed. Discovery motions will 13 not be heard after the discovery deadlines. Moreover, absent good cause, the Court will only grant relief on a discovery motion if the 14 relief requested requires the parties to act before the expiration of the relevant discovery deadline. In other words, discovery requests 15 and deposition notices must be served sufficiently in advance of the discovery deadlines to permit time for a response, time to meet 16 and confer, time to prepare, file and hear a motion to compel and time to obtain relief on a motion to compel. Counsel are expected 17 to take these contingencies into account when proposing discovery deadlines. All of these dates should be considered firm dates. 18 19 (ECF No. 5 at 4.) The Court’s initial scheduling order issued on March 4, 2022, further specified 20 that: 21 The parties are cautioned that the discovery/expert cut-off deadlines are the dates by which all discovery must be completed. 22 Absent good cause, discovery motions will not be heard after the discovery deadlines. Moreover, absent good cause, the Court will 23 only grant relief on a discovery motion if the relief requested requires the parties to act before the expiration of the relevant 24 discovery deadline. In other words, discovery requests and deposition notices must be served sufficiently in advance of the 25 discovery deadlines to permit time for a response, time to meet and confer, time to prepare, file and hear a motion to compel and time 26 to obtain relief on a motion to compel. Counsel are expected to take these contingencies into account when proposing discovery 27 deadlines. Compliance with these discovery cutoffs requires motions to compel be filed and heard sufficiently in advance of the 1 the allotted discovery time. A party’s failure to have a discovery dispute heard sufficiently in advance of the discovery cutoff may 2 result in denial of the motion as untimely. 3 (ECF No. 44 at 3.) The Court’s initial scheduling order set a pretrial conference and trial date in 4 this matter before the assigned District Judge, and both the pretrial conference and trial dates 5 were reset in this matter on July 5, 2022, when the Court granted the parties’ stipulated motion to 6 modify the scheduling order. (ECF Nos. 44, 50.) In this regard, the Court’s initial scheduling 7 order specifically warned the parties about the firm nature of the deadlines and trial date, in 8 relation to the manner that parties should request modification: 9 The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to dispose of this 10 case. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this 11 order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either 12 by stipulation or by subsequent status conference.

13 Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by 14 affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief 15 requested. The parties are advised that due to the impacted nature of civil cases on the district judges in the Eastern 16 District of California, Fresno Division, that stipulations to continue set dates are disfavored and will not be granted 17 absent good cause. 18 (ECF No. 44 at 7 (emphasis in original).) 19 Despite the Court’s previous admonition concerning submitting requests to modify the 20 scheduling order on the eve of deadlines, the parties scheduled a deposition to occur after the 21 close of nonexpert discovery, and did not move the Court for modification of the scheduling 22 order until November 4, 2022.2 23 While this is a stipulated motion and no demonstration of prejudice to any party, the trial 24 date has already been continued once in this matter, the moving parties have not demonstrated 25 diligence in adhering to the guidelines established by the Court, and although there may be

26 2 The Court notes that this is not the first occurrence in this action where the parties have not adhered to the requirements contained in the Court’s orders. (See ECF Nos. 9, 11, 21, 45 (“The Court repeatedly reminded the 27 parties to address the need for a motion to file pseudonymous pleadings in the joint scheduling report . . . [n]onetheless, the parties failed to discuss or address the need for such motion when the joint scheduling report was 1 additional relevant discovery to be uncovered, the parties make no specific showing of what that 2 discovery may be, and the foreseeability of the need for counsel and counsel’s assistance for 3 discovery was present at many earlier points in this litigation. See City of Pomona, 866 F.3d at 4 1066. More importantly, the lack of diligence in light of the attempts to schedule discovery after 5 the close of discovery, then failing to move the Court at an earlier date, leads the Court to 6 conclude the motion to modify the scheduling order is not supported by good cause. 7 Based on this timeline, the Court finds no good cause or diligence, particularly given the 8 language in the multiple orders issued in this case. Johnson, 975 F.2d at 609 (“If that party was 9 not diligent, the inquiry should end.”); Lockett v. Cnty. of Los Angeles, No. 10 CV185838DSFJPRX, 2021 WL 8918123, at *1 (C.D. Cal. Aug. 12, 2021) (“Because he has not 11 been diligent, Plaintiff has failed to demonstrate good cause to reopen discovery.”); Bailey v. 12 Enloe Med. Ctr., No. 218CV00055KJMDMC, 2022 WL 4134833, at *3 (E.D. Cal. Aug. 17, 13 2022) (“Courts consider several factors when deciding whether a party has shown ‘good cause’ 14 to reopen discovery [but] [i]f the moving party was not diligent, the inquiry should end, and the 15 request should be denied.”) (citations omitted). 16 Federal Rule of Civil Procedure 6 provides that when an act may or must be done within 17 a specified time, the court may, for good cause, extend the time: . . . (B) on motion made after 18 the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 19 6(b)(1)(B); see also Ford v. Bortolamedi, No. 2:19-CV-00191-TLN-DB, 2022 WL 4357953, at 20 *4 (E.D. Cal. Sept. 20, 2022) (“When the motion to extend time is made after time has expired, 21 the Court must also consider excusable neglect.”) In determining if excusable neglect justifies 22 extending a court deadline, the Court is to consider four factors: 1) the danger of prejudice; 2) the 23 length of the delay and its potential impact on the proceedings; 3) the reason for the delay, 24 including whether it was in the reasonable control of the party; and 4) whether the party acted in 25 good faith. Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership (Pioneer), 507 26 U.S. 380, 395 (1993).3 The Court further not find the parties have demonstrated excusable

27 3 While Pioneer involved bankruptcy proceedings, the Ninth Circuit has utilized this test in a variety of circumstances for the excusable neglect standard. See United States v. Foster, 178 F.3d 1301 (9th Cir. 1999) enn ee OS EID EE II II IE ES ESE IES OE

1 | neglect to justify a reopening of discovery. For the reasons explained above, the Court finds the 2 | third factor weighs heavily against finding excusable neglect, as the reasons for the delay were 3 | well within the control of all of the parties at this juncture of litigation, even despite Dr. Beach’s 4 | pro se status, 5 In that regard, the Court does not find Dr. Beach’s pro se status to significantly alter the 6 | Court’s considerations, although it does have some impact. See Bailey, 2022 WL 4134833, at *3 7 | (‘In some cases, an attorney’s late-stage appearance on behalf of a plaintiff who was previously 8 | unrepresented might weigh in favor of a motion to reopen discovery . . . [b]ut pro se litigants 9 | must be diligent as well, and other relevant considerations must weigh in their favor.”). Most 10 | importantly, Dr. Beach knew of the complex nature of this action and the necessities of 11 | discovery much earlier in this action, and made the decision to proceed pro se. (See ECF No. 36 12 | at 4-6 (granting motion to withdraw counsel on January 27, 2022, and discussing that Mr. Beach 13 | was “offered the option to retain Counsel using his own funds, but he ‘chose instead to proceed pro 14 | per at this time and seek counsel later if needed.’ ”’).) 15 IV. 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that the parties’ stipulated motion to reopen 18 | discovery and modify the scheduling order (ECF No. 53) is DENIED. 19 IT IS SO ORDERED. OF. nf ee 21 | Dated: _November 8, 2022 _ OO UNITED STATES MAGISTRATE JUDGE

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and our sister circuits have adopted the Supreme Court’s four-factor test” in a variety of contexts, and upholding 28 | ALJ’s use in an a regulatory context).