Starling v. Walmart Inc

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 JOSEPH STARLING, et al., 9 Plaintiffs, Case No. C21-1156-RSM-MLP 10 v. ORDER 11 WALMART INC, 12 Defendant. 13

14 This matter is before the Court on Defendant Walmart Inc.’s (“Walmart”) Motion to 15 Re-Open Discovery. (Def.’s Mot. (dkt. # 41).) Plaintiffs filed an opposition (dkt. # 44), and 16 Walmart filed a reply (dkt. # 49). The Court heard oral argument on February 27, 2023. (Dkt. 17 # 50.) Having considered the parties’ submissions, oral argument, the governing law, and the 18 remainder of the record, the Court DENIES Walmart’s Motion (dkt. # 41). 19 Discovery in this matter closed on June 20, 2022. (Dkt. # 8.) Six days before discovery 20 closed, the parties filed a stipulated motion to modify the scheduling order that would have 21 extended discovery by 91 days, to September 19, 2022, in order for Plaintiffs to take a Federal 22 Rule of Civil Procedure 30(b)(6) deposition and Walmart to take several depositions, including 23 depositions of the two minor Plaintiffs. (Dkt. # 9.) The Court denied the motion because a 1 corresponding extension of the dispositive motion deadline would have resulted in dispositive 2 motions becoming ripe for the Court’s consideration on November 11, 2022, mere days before 3 the November 14, 2022 trial date. (Dkt. # 10.) The parties did not file another stipulation 4 extending discovery nor did Walmart move on its own to extend the discovery deadline to take

5 its depositions. On November 8, 2022, Walmart’s summary judgment motion was granted in part 6 and denied in part. (Dkt. # 39.) Trial was rescheduled to May 22, 2023. (Dkt. # 40.) 7 On January 30, 2023, Walmart filed the instant motion, seeking to reopen discovery to 8 allow deposition of the two minor Plaintiffs. (Def.’s Mot.) A scheduling order “may be modified 9 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good 10 cause’ standard primarily considers the diligence of the party seeking the amendment.” Johnson 11 v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). When ruling on a motion to 12 amend a Rule 16 scheduling order to reopen discovery, courts consider the following factors: 13 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent 14 in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for 15 discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence. 16 City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (citation omitted). 17 Here, the Court finds the first factor weighs against reopening discovery. Although trial is 18 nearly three months away, motions in limine have already been resolved. (Dkt. # 48.) With 19 respect to the second factor, Plaintiffs’ opposition also weighs against granting Walmart’s 20 Motion. 21 As to the third factor, the Court finds reopening discovery would prejudice Plaintiffs. If 22 new material came to light at the minor Plaintiffs’ depositions, Plaintiffs would need to return to 23 the Court to seek permission for further discovery and/or to file new motions in limine. 1 The fourth factor, diligence, also weighs against granting Walmart’s Motion. After the 2 parties’ stipulated motion to extend discovery was denied in June 2022, Walmart contends 3 Plaintiffs withdrew their cooperation in seeking to extend discovery. (Def.’s Mot. at 2; Silverman 4 Decl. (dkt. # 42) at ¶ 5.) Nevertheless, Walmart could have filed an opposed motion at that point

5 to extend discovery. Instead, Walmart apparently made the strategic decision to file for summary 6 judgment based on Mr. Starling’s deposition alone, knowing that Plaintiffs were free to file 7 declarations in support of their opposition to Walmart’s summary judgment motion. It is now 8 eight months later, and the Court finds Walmart was not diligent in seeking the minor Plaintiffs’ 9 depositions. 10 Relatedly, the fifth factor of foreseeability weighs against granting Walmart’s Motion. 11 Walmart knew that it may want to take the minor Plaintiffs’ depositions. It made initial overtures 12 to do so in emails with Plaintiffs’ counsel, but never proceeded as far as noticing a deposition. 13 (See Silverman Decl., Ex. C (dkt. # 42-2) at 2-4 (May 2022 emails regarding “the children’s 14 depositions”).)

15 Finally, the sixth factor, likelihood that the discovery will lead to relevant evidence, 16 weighs in favor of granting Walmart’s Motion. However, the Court concludes that the majority 17 of factors counsel in favor of denial, outweighing this single factor. Accordingly, the Court 18 DENIES Walmart’s Motion (dkt. # 41). 19 Dated this 28th day of February, 2023. 20 A 21 MICHELLE L. PETERSON United States Magistrate Judge 22 23