Sundby v. Marquee Funding Group, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DALE SUNDBY, Case No.: 3:19-cv-00390-GPC-AHG 12 Plaintiff, ORDER EXTENDING TIME TO COMPLETE ADDITIONAL 13 v. DISCOVERY 14 MARQUEE FUNDING GROUP, INC., et al., 15 Defendants. 16

17 This matter comes before the Court upon review of the record. On March 4, 2020, 18 Magistrate Judge Allison H. Goddard extended the fact discovery deadline in this matter 19 for approximately 60 days, until May 4, 2020, for the limited purpose of permitting 20 counsel for the Investor Defendants1 to take the depositions of Plaintiff Dale Sundby and 21 non-party Edith Sundby, Plaintiff’s wife and signatory to the trust whose assets 22 23 24 1 The Investor Defendants include Salomon Benzimra, Trustee, Stanley Kesselman, 25 Trustee, Jeffrey Myers, Kathleen Myers, Andres Salsido, Trustee, Benning Management Group 401(k) Profit Sharing Plan, Christopher Myers, Vickie McCarty, Delores 26 Thompson, Kimberly Gill Rabinoff, Steven Cobin, Trustee, Susan Cobin, Trustee, Equity 27 Trust Company, Custodian FBO Steven M. Cobin Traditional IRA, Todd B. Cobin, Trustee, Barbara A. Cobin, Trustee, and Fasack Investments, LLC. 28 1 encompass the real property that is the subject of the 2016 and 2017 loans underlying this 2 litigation. ECF No. 92. See also ECF No. 13 ¶¶ 26-129; ECF No. 66. Pursuant to Fed. R. 3 Civ. P. 72(a), Plaintiff filed an objection to Judge Goddard’s order to be considered by 4 the presiding District Judge in this matter. ECF No. 94. On April 6, 2020, the District 5 Judge denied Plaintiff’s objection, permitting the order extending the discovery period to 6 stand. ECF No. 114. 7 Because of the delay between the filing of the initial order extending discovery and 8 the denial of Plaintiff’s objection, there is now insufficient time for counsel for Investor 9 Defendants to properly notice Plaintiff’s deposition if the notice requests production of 10 documents. See Guatay Christian Fellowship v. Cty. of San Diego, No. CIV.08CV1406- 11 JM(CAB), 2009 WL 2044621, at *1 (S.D. Cal. July 10, 2009) (“[W]hen [a Rule 30(b)(1) 12 notice for deposition] joins a request for the production of documents, [] the procedures 13 for Fed. R. Civ. P. 34 apply and a minimum of 30 days’ notice is required.”). Moreover, 14 any Rule 45 subpoena the Investor Defendants serve on non-party Edith Sundby must 15 allow a reasonable time to comply and must not subject Mrs. Sundby to undue burden. 16 See Fed. R. Civ. P. 45(d). Particularly given that Mrs. Sundby has filed a Declaration in 17 this action attesting to her “serious health conditions that require treatment in several 18 locations around the country[,]” the Court finds it necessary to ensure the parties have 19 sufficient time to arrange both depositions without causing undue burden. See ECF No. 20 66. Accordingly, the Court, on its own motion, EXTENDS the fact discovery deadline by 21 another 30 days, to June 3, 2020, for the limited purpose of allowing the Investor 22 Defendants an opportunity to properly notice and subpoena the depositions of Plaintiff 23 and Mrs. Sundby. 24 For the same reason of avoiding undue burden on the anticipated deponents, and in 25 consideration of Mrs. Sundby’s health conditions, the Court strongly encourages counsel 26 for the Investor Defendants to confer with Plaintiff to discuss taking depositions by way 27 of remote videoconferencing in light of the ongoing coronavirus pandemic. See Fed. R. 28 Civ. P. 30(b)(4); see also, e.g., Gee v. Suntrust Mortg., Inc., No. 10-CV-01509 RS NC, 1 WL 5597124, at *3 (N.D. Cal. Nov. 15, 2011) (“Parties routinely conduct 2 || depositions via videoconference, and courts encourage the same, because doing so 3 minimizes travel costs and permits the jury to make credibility evaluations not available 4 || when a transcript is read by another.”) (internal quotations and citation omitted); Lipsey 5 ||v. Walmart, Inc., No. 19 C 7681, 2020 WL 1322850, at *2 (N.D. Ill. Mar. 20, 2020) 6 || (collecting cases regarding various responses to the current pandemic, including ample 7 || use of videoconferencing technology, to demonstrate the “flexibility and sensitivity by 8 courts in the face of a serious public health emergency and the threat it poses to the health 9 public safety of litigants, court staff and the general public”); Sinceno v. Riverside 10 || Church in City of New York, No. 18-CV-2156 (LJL), 2020 WL 1302053, at *1 (S.D.N.Y. 11 || Mar. 18, 2020) (ordering that “all depositions in this action may be taken via telephone, 12 || videoconference, or other remote means, and may be recorded by any reliable audio or 13 || audiovisual means” in light of the President’s declaration of a national emergency due to 14 || the spread of the COVID-19 virus). 15 Plaintiff and counsel for the Investor Defendants are encouraged to confer in good 16 || faith regarding the method of depositions, dates, and an agreeable manner of service of 17 Rule 45 subpoena on Mrs. Sundby. As before, counsel for Defendant Marquee 18 || Funding Group, Inc. is not permitted to notice additional depositions pursuant to this 19 || Order, but may attend the depositions. 20 IT IS SO ORDERED. 21 22 Dated: April 10, 2020 _ArwiorwH. Xyolard Honorable Allison H. Goddard 24 United States Magistrate Judge 25 26 27 28