Wheat v. Wal-Mart Associates, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVE WHEAT, No. 1:22-cv-01524-BAM

12 Plaintiff, ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION TO MODIFY SCHEDULING 13 v. ORDER

14 WAL-MART ASSOCIATES, INC., (Doc. 54)

15 Defendant. 16 17 18

19 Currently before the Court is Plaintiff Steve Wheat’s Ex Parte Application to Modify 20 Scheduling Order to continue all pretrial dates. (Doc. 36.) Defendant Wal-Mart Associates, Inc. 21 opposed the application. (Doc. 38.) The Court heard oral argument on the Ex Parte application 22 on August 22, 2024. Plaintiff’s Counsel Rachael Sauer appeared for Plaintiff. Defendant’s 23 Counsel James Conley and Haidy Rivera appeared for Defendant. Having considered the briefing, 24 the record in this case, and the arguments of counsel, Plaintiff’s application is denied pursuant to 25 Federal Rule of Civil Procedure 16(b)(4). 26 I. Background 27 Plaintiff Steve Wheat (“Plaintiff”) alleges various employment discrimination claims, 28 1 including disability and age discrimination and retaliation, against Defendant Wal-Mart 2 Associates, Inc. (“Defendant”). (Doc. 1-1.) 3 At the initial scheduling conference on February 21, 2023, the Court issued a Scheduling 4 Conference Order setting trial related dates and ordering the Parties to complete non-expert 5 discovery by February 6, 2024. In setting the deadlines, the Court advised the parties that if they 6 determined at any time that the schedule outlined could not be met, then they must notify the Court 7 immediately so that adjustments could be made, either by stipulation or by subsequent status 8 conference. (Doc. 14 at 5-6.) The Court also provided the following warning: “The dates set in 9 this order are firm and will not be modified absent a showing of good cause even if the 10 request to modify is made by stipulation.” (Id. at 5) (emphasis in original). 11 A year later, on January 22, 2024, at the request of the parties and for good cause, the 12 Court modified the Scheduling Order and continued all of the pretrial and trial deadlines seven 13 months. (Doc. 38). As pertinent to Plaintiff’s Ex Parte application, the Court continued the Non- 14 expert discovery cut-off from February 6, 2024 to August 31, 2024. (Id.) 15 Then, three weeks before discovery cut-off, on August 13, 2024, Plaintiff filed the Ex 16 Parte application to again continue discovery deadlines. In the application, Plaintiff notes that 17 fact discovery could not be completed given delays caused by Defendant’s failure to provide 18 discovery responses and 30(b)(6) deposition availability and the need for further discovery, 19 including: complete responses to Plaintiff’s Requests for Production, Sets Two and Three; the 20 deposition of Defendant’s 30(b)(6) witness; the deposition of percipient witnesses; the deposition 21 of Plaintiff’s harasser; depositions of the individuals who participated in the decision-making 22 process that led to Plaintiff’s termination (supervisor Uriel Rozales and general manager Kent 23 Delperdang); and any additional written discovery and depositions that may be needed after 24 depositions are completed. (Doc. 54 at 9-10.) Plaintiff’s application requests that the Court 25 continue deadlines by an additional six months as follows: 26 Expert Disclosure: September 30, 2024 to March 20, 2025 27 Supplemental Expert Disclosure: October 18, 2024 to April 18, 2025 28 Non-expert Discovery Cut-off: August 31, 2024 to February 28, 2025 1 Expert Discovery Cut-off: December 13, 2024 to June 13, 2025 Pretrial Motion Filing Deadline: January 17, 2025 to July 17, 2025 2 Pretrial Conference: April 23, 2025 (no new date proposed) Jury Trial (7-10 days): June 9, 2025 (no new date proposed) 3 (Id. at 2.) 4 On August 20, 2024, Defendant opposed Plaintiff’s Ex Parte application, arguing, among 5 other things, that Plaintiff cannot establish good cause for modification of the Scheduling Order 6 as Plaintiff has not been diligent during discovery. (Doc. 57.) Defendant contends that Plaintiff 7 created the discovery issues for which he now claims discovery should be continued, Plaintiff 8 recently served a voluminous discovery requests in June 2024, Plaintiff has only served a single 9 deposition notice during two years of litigation, Plaintiff has had sufficient time to review the 10 1,600 pages of documents Defendant has already produced, and Plaintiff’s discovery motion 11 practice has been dilatory. (Id.) Defendant argues that reopening discovery and extending the 12 dispositive motion deadline is prejudicial and will waste Defendant’s time and resources. (Id. at 13 15.) 14 II. Motion to Modify the Court’s Scheduling Order 15 A. Legal Standard 16 District courts enter scheduling orders in actions to “limit the time to join other parties, 17 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3). Once 18 entered, a scheduling order “controls the course of the action unless the court modifies it.” Fed. R. 19 Civ. P. 16(d). Scheduling orders are intended to alleviate case management problems, Johnson v. 20 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992), and are “the heart of case 21 management,” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3rd Cir. 1986). 22 Indeed, a scheduling order is “not a frivolous piece of paper, idly entered, which can be 23 cavalierly disregarded by counsel without peril.” Johnson, 975 F.2d at 610 (quoting Gestetner 24 Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Maine 1985)). Accordingly, pursuant to 25 Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified only for good cause 26 and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Green Aire for Air Conditioning 27 W.L.L. v. Salem, No. 1:18-cv-00873-LJO-SKO, 2020 WL 58279, at *3 (E.D. Cal. Jan. 6, 2020.) 28 1 (“Requests to modify a scheduling order are governed by Rule 16(b)(4) of the Federal Rules of 2 Civil Procedure, which provides that a court may modify a scheduling order ‘only for good 3 cause.’”). As the Ninth Circuit has explained,

4 In these days of heavy caseloads, trial courts in both the federal and state system routinely set schedules and establish deadlines to foster the efficient treatment and 5 resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the 6 deadlines. Parties must understand that they will pay a price for failure to comply strictly with the scheduling and other orders, and that failure to do so may properly 7 support severe sanctions and exclusions of evidence. 8 Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). 9 Good cause requires a showing of due diligence. Johnson, 975 F.2d at 609; Sprague v. 10 Fin. Credit Network, Inc., NO. 1:18-cv-00035-SAB, 2018 WL 4616688, at *4 (E.D. Cal. Sept. 11 25, 2018) (“[Good cause] requires the party to show that despite due diligence the scheduled 12 deadline could not be met.”)). The party seeking to modify a scheduling order bears the burden 13 of demonstrating good cause. Handel v. Rhoe, No. 14-cv-1930-BAS(JMA), 2015 WL 6127271, at 14 *2 (S.D. Cal. Oct. 16, 2015) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 15 2002); Johnson, 974 F.2d at 608-609.). The Court may modify the scheduling order “if it cannot 16 reasonably be met despite the diligence of the party seeking the extension.” Johnson, 974 F.2d at 17 609. If the party was not diligent, then the inquiry should end. Id. 18 B. Discussion 19 Here, fact discovery has been pending for a year-and-a-half. The Court granted a previous 20 request to extend the discovery dates for very similar reasons. (Doc. 38). Now, a year-and-a-half 21 into discovery, Plaintiff has noticed only one deposition, and unsatisfied with the documents 22 produced to date, contends more or different documents should have been produced. The hyper- 23 focus on obtaining vast amounts of documents, and pursuing specific avenues of discovery, have 24 slowed this case to a crawl. For instance, nearly a year ago, the Court provided guidance on the 25 scope of the “me too” evidence Plaintiff sought, yet Plaintiff elected, months later, to address the 26 issue formally, delaying resolution of the issue. The Court conducted an in camera review and 27 found the documents did not support Plaintiff’s allegations. (See Docs. 23, 25, and 45, 46.) In 28 addition, although Plaintiff’s medical conditions are directly at issue in this case, Plaintiff 1 expended time to formally challenge subpoenas for medical providers documents. (See Docs. 26- 2 30.) 3 While Plaintiff contends that it was Defendant who delayed production of documents, it is 4 undisputed that Defendant produced 1,600 pages in response to requests. (Doc. 57-1 ¶ 7.) These 5 documents would have assisted Plaintiff in taking depositions of individuals Plaintiff now seeks 6 to depose, and Plaintiff does not offer a different explanation for delay. For instance, Plaintiff has 7 not taken the deposition of the Wal-Mart general manager or Plaintiff’s supervisor, persons long 8 known to be key witnesses in his termination. Indeed, as compellingly argued by Defendant, 9 Plaintiff has served only one deposition notice during the entirety of the case. The Court has 10 already extended the discovery cut-off and all related dates six months. Yet, the case is not much 11 further along than it was at the time the Court granted the continuance. 12 Plaintiff has not demonstrated diligence and good cause for modification. An additional 13 six months would not allow completion of the discovery Plaintiff anticipates - given the case 14 procedural history, including the Court’s previous continuance of pretrial and trial dates by six 15 months (Doc. 38), the Court’s order denying Plaintiff’s motion to quash medical records 16 subpoenas (Doc. 30), the time spent on Plaintiff’s discovery requests and meeting and conferring 17 regarding Rule 30(b)(6) topics (See Docs. 21, 23, 25, 41), the Court’s order denying Plaintiff’s 18 request to compel production of documents regarding “me too” evidence after in camera review 19 (Doc. 46), parties’ failure to timely set depositions or resolve deposition issues (See Docs. 21, 23, 20 25, 41, 45, 48, 53), and Plaintiff’s new discovery requests (Doc. 55). Therefore, the Court finds 21 that Plaintiff has failed to demonstrate good cause for modification of the Scheduling Order. 22 Johnson, 975 F.2d at 611 (“As the torrent of civil and criminal cases unleashed in recent years has 23 threatened to inundate the federal courts, deliverance has been sought in the use of calendar 24 management techniques. Rule 16 is an important component of those techniques.”). 25 The Court acknowledges that Plaintiff has been engaging in discovery and that discovery 26 has occurred, but Plaintiff’s litigation strategy of attempting to obtain every potential document 27 and pursuing every avenue of discovery has not worked. Plaintiff chose a deliberate litigation 28 strategy, which has been unsuccessful. Plaintiff’s litigation strategy therefore does not provide 1 good cause for modification of the Scheduling Order. TGG Mgmt. Co., Inc. v. Petraglia, No. 19- 2 CV-2007-BAS-KSC, 2021 WL 2206475, at *2 (S.D. Cal.) (“[Litigation strategy] is not enough to 3 justify [defendant]'s non-compliance with the Rule 16 Scheduling Order in this action). 4 The Court also considers the drain on judicial resources and prejudice to Defendant from 5 reopening discovery and continuing pretrial dates. The Court has devoted hours to resolving 6 numerous discovery disputes and conducting status conferences on discovery issues with the 7 parties as they attempted to work through their disputes. Reopening discovery will undoubtedly 8 continue to drain resources as the parties start nearly anew with vast discovery not yet completed, 9 and as further contemplated by Plaintiff, and opposed by Defendant. All dates in the Scheduling 10 Order would have to be modified, including the trial date and pretrial conference. This wholesale 11 modification to the schedule is prejudicial to Defendant and would disrupt the Court’s calendar. 12 See Wong, 410 F.3d at 1062 (“Disruption to the schedule of the court and other parties ... is not 13 harmless.”). 14 Nonetheless, the Court will extend the fact discovery cut-off to permit the depositions of 15 Plaintiff’s three treating medical providers. At oral argument, Defendant stated that it had noticed 16 the depositions before the discovery cut-off date, but that Plaintiff’s counsel was unavailable on 17 the dates. Plaintiff’s counsel confirmed her unavailability and also confirmed her lack of control 18 over the medical providers. Accordingly, the Court will permit the depositions of Plaintiff’s three 19 treating medical providers on or before September 20, 2024. 20 III. Conclusion and Order 21 The Discovery cut-off is extended to September 20, 2024 solely for the purpose of 22 permitting the depositions of Plaintiff’s three treating medical providers. 23 For the reasons stated, Plaintiff’s application to modify the scheduling order is otherwise 24 DENIED. 25 IT IS SO ORDERED. 26

27 Dated: August 26, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28