1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CATHERINE GODDARD, No. 2:18-cv-02659-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 COUNTY OF EL DORADO; and DOES 1 through 50, inclusive, 15 Defendants. 16 17 18 This matter is before the Court on Plaintiff Catherine Goddard’s (“Plaintiff”) Motion to 19 Modify the Court’s Initial Pretrial Scheduling Order (“IPSO”). (ECF No. 18.) Defendant County 20 of El Dorado (“Defendant”) filed an Opposition. (ECF No. 29.) Plaintiff filed a Reply. (ECF 21 No. 31.) For the reasons set forth below, the Court DENIES Plaintiff’s Motion. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff began working for Defendant in March 2017 as the Executive Secretary for 3 Defendant’s Chief Public Defender. (ECF No. 29 at 2.) On November 30, 2017, the Chief Public 4 Defender terminated Plaintiff’s employment. (Id.) On September 30, 2018, Plaintiff filed a 5 Complaint against Defendant alleging age discrimination and retaliation. (Id.) Plaintiff 6 subsequently filed a First Amended Complaint (“FAC”) on November 22, 2018. (ECF No. 8.) 7 An answer to the FAC was due on December 6, 2018. (ECF No. 29 at 2–3.) However, 8 Defendant did not file its Answer until February 12, 2019. (ECF No. 14.) 9 The Court’s October 1, 2018 IPSO provides, “[a]ll discovery, with the exception of expert 10 discovery, shall be completed no later than two hundred forty (240) days from the date upon 11 which the last answer may be filed with the Court pursuant to Federal Rules of Civil Procedure.” 12 (ECF No. 4 at 2.) Plaintiff — under the impression the deadline for discovery stemmed from the 13 date Defendant actually filed its Answer — believed the deadline was October 10, 2019. (ECF 14 No. 20 at 24.) As such, on September 20, 2019, Plaintiff provided notice that a deposition of the 15 Chief Public Defender was to occur on October 8, 2019. (Id. at 4–8.) Defendant — under the 16 impression the deadline for discovery stemmed from the date its Answer to the FAC was 17 originally due — did not agree to allow the deposition because it was “past the deadline.” (Id. at 18 23, 25.) 19 Nearly four months later, on January 31, 2020, Plaintiff filed the instant Motion, seeking 20 permission to depose the Chief Public Defender and Defendant’s former Senior Human Resource 21 Analyst, as well as “permission to allow both sides to serve timely expert witness designations.” 22 (ECF No. 18 at 1–2.) Defendant filed a Motion for Summary Judgment the day before, on 23 January 30, 2020. (ECF No. 15.) In an Ex Parte Application for Continuance of Hearing — 24 which the Court granted regarding the Motion for Summary Judgment — Plaintiff added requests 25 to depose Defendant’s HR Director and an HR assistant. (ECF No. 26 at 2–3.) 26 /// 27 /// 28 /// 1 II. ANALYSIS 2 The IPSO in this case provides that, pursuant to Federal Rule of Civil Procedure (“Rule”) 3 16(b), the order “shall not be modified except by leave of court upon showing of good cause.” 4 (ECF No. 4 at 6.) Rule 16(b) states the district court must issue a scheduling order that limits “the 5 time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. 6 Civ. P. 16(b)(3)(A). A scheduling order “may be modified only for good cause and with the 7 judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the 8 diligence of the party seeking the amendment,” and the court “may modify the pretrial schedule if 9 it cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson v. 10 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal citation and quotations 11 omitted). “The prejudice to opposing parties, if any, may provide additional grounds for denying 12 the motion, but the focus is on the moving party’s reason for seeking the modification.” Atayde v. 13 Napa State Hosp., No. 116-CV-00398-DAD-SAB, 2020 WL 1046830, at *3 (E.D. Cal. Mar. 4, 14 2020), reconsideration denied, No. 116-CV-00398-DAD-SAB, 2020 WL 1937395 (E.D. Cal. 15 Apr. 22, 2020). 16 Plaintiff seeks modification of the IPSO on the basis that “limited modification” — to 17 allow both parties to serve expert witness designations and Plaintiff to depose multiple witnesses 18 — “will benefit both parties and the Court.” (ECF No. 18 at 1-2.) Plaintiff argues there would be 19 “no demonstrable prejudice to Defendant” and “Court time and resources will be conserved and 20 put to more efficient use” if Plaintiff’s Motion is granted. (Id. at 2.) In opposition, Defendant 21 argues Plaintiff “fails to address her total lack of diligence with regard to discovery [and] fails to 22 provide any proper justification for relief from the scheduling order.” (ECF No. 29 at 2.) 23 Defendant also argues it will be prejudiced if Plaintiff’s Motion is granted. (Id.) 24 Plaintiff fails to demonstrate she was diligent in attempting to designate expert witnesses. 25 Plaintiff alleges such witnesses would benefit both parties because Plaintiff intends to seek 26 monetary damages. (ECF No. 19 at 4.) However, the IPSO required all counsel to designate 27 expert witnesses “not later than sixty (60) days after the close of discovery.” (ECF No. 4 at 3.) 28 Therefore, assuming Plaintiff was correct in identifying October 10, 2019 as the close of 1 discovery, Plaintiff had until December 9, 2019 — more than one year after the IPSO was filed 2 — to designate her expert witnesses. As such, Plaintiff had plenty of time to adhere to the 3 schedule, but still failed to do so. Moreover, Plaintiff neither claims to have acted diligently nor 4 provides an excuse for her lack of diligence. Therefore, Plaintiff has not demonstrated good 5 cause to modify the pretrial schedule regarding expert witnesses. See Johnson, 975 F.2d at 609. 6 Plaintiff also fails to demonstrate she was diligent in conducting discovery. Plaintiff 7 waited until almost one year after the IPSO to provide Defendant with notice of the deposition of 8 the Chief Public Defender. (See ECF No. 20 at 4.) Even assuming Plaintiff was correct in her 9 calculation of the discovery deadline, the deposition was to take place only two days before the 10 October 10, 2019 cutoff. (Id. at 24.) Plaintiff’s own counsel admitted the proposed date was 11 “under the wire.” (Id. at 23); see Coe v. Schaeffer, No. 2:13-CV-00432-KJM-CKD, 2015 WL 12 3795647, at *2 (E.D. Cal. June 17, 2015) (holding plaintiff was not diligent where she delayed 13 efforts to schedule depositions until “two months before the deadline”). 14 After Defendant refused to allow the deposition (ECF No. 20 at 25), Plaintiff took no 15 action to compel discovery in order to meet the presumed discovery deadline, further 16 demonstrating a lack of diligence. See Wormuth v. Lamersville Union Sch. Dist., No. 2:15-CV- 17 1572-KJM-EFB, 2017 WL 3537257, at *4 (E.D. Cal. Aug. 17, 2017) (holding defendants were 18 not diligent in pursuing discovery where plaintiff refused to comply with defendants’ request for 19 an Insurance Medical Examination and, “instead of immediately moving to compel an IME,” 20 defendants waited until after the discovery deadline to file their motion). Instead, Plaintiff waited 21 more than four months after Defendant refused to allow the deposition — and nearly four months 22 after the close of discovery — to file the instant Motion to Modify. (ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CATHERINE GODDARD, No. 2:18-cv-02659-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 COUNTY OF EL DORADO; and DOES 1 through 50, inclusive, 15 Defendants. 16 17 18 This matter is before the Court on Plaintiff Catherine Goddard’s (“Plaintiff”) Motion to 19 Modify the Court’s Initial Pretrial Scheduling Order (“IPSO”). (ECF No. 18.) Defendant County 20 of El Dorado (“Defendant”) filed an Opposition. (ECF No. 29.) Plaintiff filed a Reply. (ECF 21 No. 31.) For the reasons set forth below, the Court DENIES Plaintiff’s Motion. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff began working for Defendant in March 2017 as the Executive Secretary for 3 Defendant’s Chief Public Defender. (ECF No. 29 at 2.) On November 30, 2017, the Chief Public 4 Defender terminated Plaintiff’s employment. (Id.) On September 30, 2018, Plaintiff filed a 5 Complaint against Defendant alleging age discrimination and retaliation. (Id.) Plaintiff 6 subsequently filed a First Amended Complaint (“FAC”) on November 22, 2018. (ECF No. 8.) 7 An answer to the FAC was due on December 6, 2018. (ECF No. 29 at 2–3.) However, 8 Defendant did not file its Answer until February 12, 2019. (ECF No. 14.) 9 The Court’s October 1, 2018 IPSO provides, “[a]ll discovery, with the exception of expert 10 discovery, shall be completed no later than two hundred forty (240) days from the date upon 11 which the last answer may be filed with the Court pursuant to Federal Rules of Civil Procedure.” 12 (ECF No. 4 at 2.) Plaintiff — under the impression the deadline for discovery stemmed from the 13 date Defendant actually filed its Answer — believed the deadline was October 10, 2019. (ECF 14 No. 20 at 24.) As such, on September 20, 2019, Plaintiff provided notice that a deposition of the 15 Chief Public Defender was to occur on October 8, 2019. (Id. at 4–8.) Defendant — under the 16 impression the deadline for discovery stemmed from the date its Answer to the FAC was 17 originally due — did not agree to allow the deposition because it was “past the deadline.” (Id. at 18 23, 25.) 19 Nearly four months later, on January 31, 2020, Plaintiff filed the instant Motion, seeking 20 permission to depose the Chief Public Defender and Defendant’s former Senior Human Resource 21 Analyst, as well as “permission to allow both sides to serve timely expert witness designations.” 22 (ECF No. 18 at 1–2.) Defendant filed a Motion for Summary Judgment the day before, on 23 January 30, 2020. (ECF No. 15.) In an Ex Parte Application for Continuance of Hearing — 24 which the Court granted regarding the Motion for Summary Judgment — Plaintiff added requests 25 to depose Defendant’s HR Director and an HR assistant. (ECF No. 26 at 2–3.) 26 /// 27 /// 28 /// 1 II. ANALYSIS 2 The IPSO in this case provides that, pursuant to Federal Rule of Civil Procedure (“Rule”) 3 16(b), the order “shall not be modified except by leave of court upon showing of good cause.” 4 (ECF No. 4 at 6.) Rule 16(b) states the district court must issue a scheduling order that limits “the 5 time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. 6 Civ. P. 16(b)(3)(A). A scheduling order “may be modified only for good cause and with the 7 judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the 8 diligence of the party seeking the amendment,” and the court “may modify the pretrial schedule if 9 it cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson v. 10 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal citation and quotations 11 omitted). “The prejudice to opposing parties, if any, may provide additional grounds for denying 12 the motion, but the focus is on the moving party’s reason for seeking the modification.” Atayde v. 13 Napa State Hosp., No. 116-CV-00398-DAD-SAB, 2020 WL 1046830, at *3 (E.D. Cal. Mar. 4, 14 2020), reconsideration denied, No. 116-CV-00398-DAD-SAB, 2020 WL 1937395 (E.D. Cal. 15 Apr. 22, 2020). 16 Plaintiff seeks modification of the IPSO on the basis that “limited modification” — to 17 allow both parties to serve expert witness designations and Plaintiff to depose multiple witnesses 18 — “will benefit both parties and the Court.” (ECF No. 18 at 1-2.) Plaintiff argues there would be 19 “no demonstrable prejudice to Defendant” and “Court time and resources will be conserved and 20 put to more efficient use” if Plaintiff’s Motion is granted. (Id. at 2.) In opposition, Defendant 21 argues Plaintiff “fails to address her total lack of diligence with regard to discovery [and] fails to 22 provide any proper justification for relief from the scheduling order.” (ECF No. 29 at 2.) 23 Defendant also argues it will be prejudiced if Plaintiff’s Motion is granted. (Id.) 24 Plaintiff fails to demonstrate she was diligent in attempting to designate expert witnesses. 25 Plaintiff alleges such witnesses would benefit both parties because Plaintiff intends to seek 26 monetary damages. (ECF No. 19 at 4.) However, the IPSO required all counsel to designate 27 expert witnesses “not later than sixty (60) days after the close of discovery.” (ECF No. 4 at 3.) 28 Therefore, assuming Plaintiff was correct in identifying October 10, 2019 as the close of 1 discovery, Plaintiff had until December 9, 2019 — more than one year after the IPSO was filed 2 — to designate her expert witnesses. As such, Plaintiff had plenty of time to adhere to the 3 schedule, but still failed to do so. Moreover, Plaintiff neither claims to have acted diligently nor 4 provides an excuse for her lack of diligence. Therefore, Plaintiff has not demonstrated good 5 cause to modify the pretrial schedule regarding expert witnesses. See Johnson, 975 F.2d at 609. 6 Plaintiff also fails to demonstrate she was diligent in conducting discovery. Plaintiff 7 waited until almost one year after the IPSO to provide Defendant with notice of the deposition of 8 the Chief Public Defender. (See ECF No. 20 at 4.) Even assuming Plaintiff was correct in her 9 calculation of the discovery deadline, the deposition was to take place only two days before the 10 October 10, 2019 cutoff. (Id. at 24.) Plaintiff’s own counsel admitted the proposed date was 11 “under the wire.” (Id. at 23); see Coe v. Schaeffer, No. 2:13-CV-00432-KJM-CKD, 2015 WL 12 3795647, at *2 (E.D. Cal. June 17, 2015) (holding plaintiff was not diligent where she delayed 13 efforts to schedule depositions until “two months before the deadline”). 14 After Defendant refused to allow the deposition (ECF No. 20 at 25), Plaintiff took no 15 action to compel discovery in order to meet the presumed discovery deadline, further 16 demonstrating a lack of diligence. See Wormuth v. Lamersville Union Sch. Dist., No. 2:15-CV- 17 1572-KJM-EFB, 2017 WL 3537257, at *4 (E.D. Cal. Aug. 17, 2017) (holding defendants were 18 not diligent in pursuing discovery where plaintiff refused to comply with defendants’ request for 19 an Insurance Medical Examination and, “instead of immediately moving to compel an IME,” 20 defendants waited until after the discovery deadline to file their motion). Instead, Plaintiff waited 21 more than four months after Defendant refused to allow the deposition — and nearly four months 22 after the close of discovery — to file the instant Motion to Modify. (ECF No. 18.) See Johnson, 23 975 F.2d at 610 (affirming denial of a motion to modify the scheduling order to allow a pleading 24 amendment where plaintiff filed the motion four months after the deadline for amendment). In a 25 Declaration, Plaintiff’s counsel, Douglas E. Watts (“Watts”) stated he “will not offer any excuses 26 to this Court” as to why Plaintiff waited so long to file this Motion. (ECF No. 20 at 3.) 27 Moreover, aside from Plaintiff’s failed attempt to depose the Chief Public Defender, it is 28 undisputed that “Plaintiff engaged in no discovery” prior to the deadline. (ECF No. 29 at 2.) It is 1 also undisputed that in the parties’ respective initial disclosures of potential witnesses, Plaintiff 2 included three of the four individuals she seeks relief to depose and Defendant included the 3 remaining individual. (ECF No. 29 at 3.) As such, Plaintiff knew or should have known about 4 these individuals’ relevance to and involvement in the instant case well before the discovery 5 deadline, yet still failed to depose them. See Reliance Standard Life Ins. Co. v. Harrison, No. 6 CIV. S-09-532 FCD KJN, 2011 WL 338449, at *3 (E.D. Cal. Jan. 31, 2011) (plaintiff did not act 7 diligently where it sought to reopen discovery to depose witnesses it had known about “from the 8 onset of litigation” but “did not seek to take their depositions before the discovery deadline”). 9 Furthermore, Plaintiff filed a Declaration by Watts in which Watts claims the requested 10 depositions “would allow Plaintiff to file a full and fair Opposition” to Defendant’s Motion for 11 Summary Judgment.1 (ECF No. 31 at 2.) He alleges two of the witnesses “possess relevant, first- 12 hand knowledge of [Defendant’s] personnel policies, handling of . . . complaints (age 13 discrimination, retaliation, etc.), and investigative processes during the timeframe relevant to this 14 case.” (Id.) However, Watts still fails to demonstrate Plaintiff acted with diligence, the primary 15 consideration in determining Plaintiff’s Motion. See Johnson, 975 F.2d at 609. Watts further 16 alleges Defendant failed to follow the IPSO. (ECF No. 31 at 2.) Even assuming this is true, 17 Watts provides no authority indicating Defendant’s failure to adhere to the schedule allows 18 Plaintiff to prevail on this Motion. 19 Beyond a showing of diligence, several factors must be considered in determining whether 20 there is good cause to reopen discovery. Such factors include “(1) whether trial is imminent, (2)
21 1 Defendant argues Plaintiff has not made the required showings under Rule 56(d) to reopen discovery. Under Rule 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for 22 specified reasons, it cannot present facts essential to justify its opposition [to a motion for 23 summary judgment], the court may” allow time for more discovery. Fed. R. Civ. P. 56(d). To prevail under this Rule, a party “must identify by affidavit the specific facts that further discovery 24 would reveal and explain why those facts would preclude summary judgment.” Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Plaintiff does not expressly 25 address Rule 56(d) in her motion or reply. Regardless, because Plaintiff cannot establish “good cause” to modify the discovery deadline due to her lack of diligence, she also cannot establish a 26 right to further discovery under Rule 56(d). See Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 27 914 F.2d 1271, 1278 (9th Cir. 1990) (“[A] district court does not abuse its discretion by denying further discovery if the movant has failed diligently to pursue discovery in the past.”) (internal 28 citations omitted). 1 whether the request is opposed, (3) whether the non-moving party would be prejudiced, (4) 2 whether the moving party was diligent in obtaining discovery within the guidelines established by 3 the court, (5) the foreseeability of the need for additional discovery in light of the time allowed 4 for discovery by the district court, and (6) the likelihood that the discovery will lead to relevant 5 evidence.” City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (quoting 6 U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995)). 7 Here, a trial date has not yet been scheduled and is therefore not “imminent,” so this factor 8 weighs in favor of reopening discovery. However, Defendant’s Opposition (ECF No. 29) weighs 9 against reopening discovery. Further, Defendant would experience “at least some prejudice” due 10 to the delay in proceedings that would occur if Plaintiff’s Motion were granted. See Dimitre v. 11 Cal. State Univ. Employee’s Union, No. 2:17-CV-01698-KJM-DB, 2019 WL 4670827, at *2 12 (E.D. Cal. Sept. 25, 2019). Moreover, as discussed above, Plaintiff was not diligent in obtaining 13 discovery. All four witnesses Plaintiff seeks to depose were included in the parties’ combined 14 initial disclosures. (ECF No. 29 at 3.) Two of Plaintiff’s disclosed witnesses are former HR 15 personnel to whom Plaintiff complained about harassment, a hostile work environment, and 16 retaliation. (ECF No. 31 at 2.) The third witness (disclosed by both parties) is the Chief Public 17 Defender, the person who terminated Plaintiff’s employment and allegedly harassed and 18 discriminated against Plaintiff. (ECF No. 19 at 1.) The final witness disclosed by Defendant is 19 Defendant’s HR Director. (ECF No. 29 at 6.) Defendant disclosed to Plaintiff that the HR 20 Director “had communications with [the Chief Public Defender] about Plaintiff’s performance” 21 and termination. (Id.) As such, the need to depose these individuals was foreseeable due to their 22 relevance and involvement in the case. Finally, Defendant concedes, “the depositions could lead 23 to the discovery of admissible evidence.” (Id. at 7.) 24 Looking primarily at Plaintiff’s lack of diligence, along with Defendant’s Opposition, 25 prejudice to Defendant, and the foreseeability of the need to depose the witnesses, Plaintiff has 26 failed to show good cause for reopening discovery to allow her to depose four witnesses. See 27 Dimitre, 2019 WL 4670827, at *3. Accordingly, Plaintiff’s Motion to Modify is DENIED. 28 /// 1 III. CONCLUSION 2 For the foregoing reasons, Defendants’ Motion to Modify the Court’s Initial Pretrial 3 Scheduling Order is hereby DENIED. (ECF No. 18.) 4 IT IS SO ORDERED. 5 DATED: July 28, 2020 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28