2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARSHA WRIGHT, Case No.: 17cv1996-BAS (MSB)
12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE 13 v. PLAINTIFF’S EX PARTE MOTION FOR ISSUANCE OF LETTERS OF REQUEST 14 OLD GRINGO, et al.,
15 Defendants. [ECF NO. 189] 16 17 In October 10, 2019, Plaintiff filed an “Ex Parte Motion and Memorandum of 18 Points and Authorities in Support of Ex Parte Motion for Issuance of Letter of Request,” 19 asking this court to issue a letter of request to Mexico seeking Mexico’s assistance 20 compelling discovery from Defendant Old Gringo, S.A. de C.V. (“OGS”) under the Hague 21 Evidence Convention. (ECF No. 189.) Defendants filed their Opposition on October 15, 22 2019. (ECF No. 190.) For the reasons discussed below, the Court DENIES Plaintiff’s 23 motion without prejudice. 24 I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 25 Plaintiff, a former designer for Defendants Old Gringo, Inc. (“OGI”) and Old 26 Gringo, S.A. de C.V. (“OGS”) (a Western wear manufacturer and distributor and its 27 Mexican sister company, together the “Old Gringo Companies”) alleges that the 2 ownership interest in the Old Gringo Companies, but in fact, no such interest was 3 conveyed. (See ECF No. 1.) This basic allegation underlies all of the remaining causes of 4 action in this case. 5 This case was filed on September 28, 2017. (ECF No. 1.) The first scheduling 6 order was issued on March 2, 2018. (ECF No. 18.) While Plaintiff requested discovery 7 from OGI for the financial and other corporate documents pertaining to OGS, (see ECF 8 Nos. 36, 58, 66), OGS did not file its answer and make a general appearance in this case 9 until June 17, 2019, (ECF No. 116). After Judge Bashant denied OGS’ motion for 10 summary judgement, (see ECF No. 163), the Court held telephonic case management 11 conferences on September 11 and 17, (ECF Nos. 174, 177), and on September 19, 2019, 12 issued an amended scheduling order permitting Plaintiff limited additional time to 13 conduct fact discovery as to OGS, (ECF No. 179). 14 According to Plaintiff’s counsel, he emailed a draft of Plaintiff’s proposed letter of 15 request to Defendants’ counsel on September 27, 2019 and received an email back on 16 October 2, 2019, with “broad objections to the draft Letter of Request and a suggestion 17 that the parties should present two versions of the draft Letter of Request to the Court 18 as attachments to a joint motion.” (See ECF No. 189-2 at 2.) Counsel then explains, 19 “[a]fter studying the matter in detail both substantively and procedurally and conferring 20 with Plaintiff and third party experts, I made some changes in response to Defendants’ 21 comments and filed this ex parte motion with notice to counsel for Defendants, because 22 agreeing to all of Defendants’ objections would unduly prejudice Plaintiff’s rights to take 23 discovery regarding Old Gringo Mexico.” (Id.) Defendants describe a different and more 24 complete exchange of emails, that do not vary significantly on these points. (ECF No. 25 190 at 3-4.) 26 Plaintiff did in fact file the instant motion on October 10, 2019, over a week after 27 Defendants’ counsel sent him Defendants’ objections. (See ECF No. 189.) Defendants 2 A. Plaintiff failed to meet and confer as required by Civil Local Rule 26.1(a) 3 A number of different rules require litigants in this district to meet and confer 4 regarding discovery disputes before calling upon the Court to resolve the parties’ 5 disagreements. Federal Rule of Civil Procedure 37(a)(1) provides that a party filing a 6 motion to compel must certify “that the movant has in good faith conferred or 7 attempted to confer with the person or party failing to make disclosure or discovery in 8 an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Judge Stormes’ 9 March 2, 2018 Schedule Order Regulating Discovery and Other Pre-Trial Proceedings 10 directed counsel, in bolded font, to “promptly and in good faith meet and confer with 11 regard to all discovery disputes in compliance with Local Rule 26.1(a).” (ECF No. 18 at 12 3.) Judge Berg’s Second Amended Scheduling Order Regulating Discovery and Other 13 Pre-Trial Proceedings, issued on September 19, 2019 included a directive to comply with 14 Local Rule 26.1(a), identical to that of Judge Stormes. (ECF No. 179 at 5.) The same 15 requirement is reiterated in Judge Berg’s Civil Chambers Rule IV.A. Civil Local Rule 16 26.1(a) states that “[t]he Court will entertain no motion pursuant to Rules 26 through 17 37, Fed. R. Civ. P., unless counsel will have previously met and conferred concerning all 18 disputed issues. . . . If counsel have offices in the same county, they are to meet and 19 confer in person. If counsel have offices in different counties, they are to confer by 20 telephone. Under no circumstances may the parties satisfy the meet and confer 21 requirement by exchanging written correspondence.” S.D. Cal. Civ. L.R. 26.1(a). 22 The instant motion involves Plaintiff’s request that this Court ask “the judicial 23 authorities of Mexico to compel discovery pertaining to [OGS].” (ECF No. 189 at 1.) It 24 relies on Federal Rule of Civil Procedure 28’s directives regarding taking depositions in 25 foreign countries. (See ECF No. 189 at 3.) Based on the foregoing, the motion before 26 the Court is unquestionably a discovery motion subject to Rule 37(a)(1) and Local Rule 27 26.1(a). 2 parties’ have offices in different counties, with Plaintiff’s counsel in Los Angeles and 3 Defendant’s counsel in La Mesa. Therefore, the parties were excused from meeting and 4 conferring in person, but they were not excused from the requirement that they confer 5 over the telephone. However, the only interaction described by Plaintiff was via email, 6 and it did not involve any actual engagement by Plaintiff’s counsel with Defendants’ 7 counsel regarding the objections raised by Defendants or Plaintiff’s disagreement with 8 the same. 9 The purpose of a meet and confer requirement is for the parties to engage in a 10 meaningful dialogue about their respective positions on disputed issues to see whether 11 they can resolve them without court intervention, saving time and money for the 12 litigants and the court system. See California v. Iipay Nation of Santa Ysabel, No. 13 14CV2724 AJB (NLS), 2015 WL 2449527, at *6 (S.D. Cal. May 22, 2015) (“A purpose of a 14 meet and confer requirement is to resolve issues without the need for further action.”); 15 Eusse v. Vitela, Case No.: 3:13-cv-00916-BEN-NLS, 2015 WL 9008634, at *3 (S.D. Cal. 16 Dec. 14, 2015) (“This process, when successful, ‘obviates the need for unnecessary 17 motion practice, which, in turn, conserves both the Court’s and the parties' resources.’”) 18 (internal citation omitted). In order to “serve [this] purpose, parties must ‘treat the 19 informal negotiation process as a substitute for, and not simply a formal prerequisite to, 20 judicial review of discovery disputes.’” U-Haul Co. of Nevada v. Gregory J. Kamer, Ltd., 21 No. 2:12-cv-00231-KJD-CWH, 2013 WL 5278523, at *2 (D. Nev. Sept. 17, 2013) (internal 22 citation omitted). The Court has carefully reviewed Plaintiff’s ex parte motion and her 23 attorney’s declaration, and finds no justification proffered for the failure to meet and 24 confer as required by the Civil Local Rules and Chambers’ Rules. (See ECF Nos.
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARSHA WRIGHT, Case No.: 17cv1996-BAS (MSB)
12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE 13 v. PLAINTIFF’S EX PARTE MOTION FOR ISSUANCE OF LETTERS OF REQUEST 14 OLD GRINGO, et al.,
15 Defendants. [ECF NO. 189] 16 17 In October 10, 2019, Plaintiff filed an “Ex Parte Motion and Memorandum of 18 Points and Authorities in Support of Ex Parte Motion for Issuance of Letter of Request,” 19 asking this court to issue a letter of request to Mexico seeking Mexico’s assistance 20 compelling discovery from Defendant Old Gringo, S.A. de C.V. (“OGS”) under the Hague 21 Evidence Convention. (ECF No. 189.) Defendants filed their Opposition on October 15, 22 2019. (ECF No. 190.) For the reasons discussed below, the Court DENIES Plaintiff’s 23 motion without prejudice. 24 I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 25 Plaintiff, a former designer for Defendants Old Gringo, Inc. (“OGI”) and Old 26 Gringo, S.A. de C.V. (“OGS”) (a Western wear manufacturer and distributor and its 27 Mexican sister company, together the “Old Gringo Companies”) alleges that the 2 ownership interest in the Old Gringo Companies, but in fact, no such interest was 3 conveyed. (See ECF No. 1.) This basic allegation underlies all of the remaining causes of 4 action in this case. 5 This case was filed on September 28, 2017. (ECF No. 1.) The first scheduling 6 order was issued on March 2, 2018. (ECF No. 18.) While Plaintiff requested discovery 7 from OGI for the financial and other corporate documents pertaining to OGS, (see ECF 8 Nos. 36, 58, 66), OGS did not file its answer and make a general appearance in this case 9 until June 17, 2019, (ECF No. 116). After Judge Bashant denied OGS’ motion for 10 summary judgement, (see ECF No. 163), the Court held telephonic case management 11 conferences on September 11 and 17, (ECF Nos. 174, 177), and on September 19, 2019, 12 issued an amended scheduling order permitting Plaintiff limited additional time to 13 conduct fact discovery as to OGS, (ECF No. 179). 14 According to Plaintiff’s counsel, he emailed a draft of Plaintiff’s proposed letter of 15 request to Defendants’ counsel on September 27, 2019 and received an email back on 16 October 2, 2019, with “broad objections to the draft Letter of Request and a suggestion 17 that the parties should present two versions of the draft Letter of Request to the Court 18 as attachments to a joint motion.” (See ECF No. 189-2 at 2.) Counsel then explains, 19 “[a]fter studying the matter in detail both substantively and procedurally and conferring 20 with Plaintiff and third party experts, I made some changes in response to Defendants’ 21 comments and filed this ex parte motion with notice to counsel for Defendants, because 22 agreeing to all of Defendants’ objections would unduly prejudice Plaintiff’s rights to take 23 discovery regarding Old Gringo Mexico.” (Id.) Defendants describe a different and more 24 complete exchange of emails, that do not vary significantly on these points. (ECF No. 25 190 at 3-4.) 26 Plaintiff did in fact file the instant motion on October 10, 2019, over a week after 27 Defendants’ counsel sent him Defendants’ objections. (See ECF No. 189.) Defendants 2 A. Plaintiff failed to meet and confer as required by Civil Local Rule 26.1(a) 3 A number of different rules require litigants in this district to meet and confer 4 regarding discovery disputes before calling upon the Court to resolve the parties’ 5 disagreements. Federal Rule of Civil Procedure 37(a)(1) provides that a party filing a 6 motion to compel must certify “that the movant has in good faith conferred or 7 attempted to confer with the person or party failing to make disclosure or discovery in 8 an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Judge Stormes’ 9 March 2, 2018 Schedule Order Regulating Discovery and Other Pre-Trial Proceedings 10 directed counsel, in bolded font, to “promptly and in good faith meet and confer with 11 regard to all discovery disputes in compliance with Local Rule 26.1(a).” (ECF No. 18 at 12 3.) Judge Berg’s Second Amended Scheduling Order Regulating Discovery and Other 13 Pre-Trial Proceedings, issued on September 19, 2019 included a directive to comply with 14 Local Rule 26.1(a), identical to that of Judge Stormes. (ECF No. 179 at 5.) The same 15 requirement is reiterated in Judge Berg’s Civil Chambers Rule IV.A. Civil Local Rule 16 26.1(a) states that “[t]he Court will entertain no motion pursuant to Rules 26 through 17 37, Fed. R. Civ. P., unless counsel will have previously met and conferred concerning all 18 disputed issues. . . . If counsel have offices in the same county, they are to meet and 19 confer in person. If counsel have offices in different counties, they are to confer by 20 telephone. Under no circumstances may the parties satisfy the meet and confer 21 requirement by exchanging written correspondence.” S.D. Cal. Civ. L.R. 26.1(a). 22 The instant motion involves Plaintiff’s request that this Court ask “the judicial 23 authorities of Mexico to compel discovery pertaining to [OGS].” (ECF No. 189 at 1.) It 24 relies on Federal Rule of Civil Procedure 28’s directives regarding taking depositions in 25 foreign countries. (See ECF No. 189 at 3.) Based on the foregoing, the motion before 26 the Court is unquestionably a discovery motion subject to Rule 37(a)(1) and Local Rule 27 26.1(a). 2 parties’ have offices in different counties, with Plaintiff’s counsel in Los Angeles and 3 Defendant’s counsel in La Mesa. Therefore, the parties were excused from meeting and 4 conferring in person, but they were not excused from the requirement that they confer 5 over the telephone. However, the only interaction described by Plaintiff was via email, 6 and it did not involve any actual engagement by Plaintiff’s counsel with Defendants’ 7 counsel regarding the objections raised by Defendants or Plaintiff’s disagreement with 8 the same. 9 The purpose of a meet and confer requirement is for the parties to engage in a 10 meaningful dialogue about their respective positions on disputed issues to see whether 11 they can resolve them without court intervention, saving time and money for the 12 litigants and the court system. See California v. Iipay Nation of Santa Ysabel, No. 13 14CV2724 AJB (NLS), 2015 WL 2449527, at *6 (S.D. Cal. May 22, 2015) (“A purpose of a 14 meet and confer requirement is to resolve issues without the need for further action.”); 15 Eusse v. Vitela, Case No.: 3:13-cv-00916-BEN-NLS, 2015 WL 9008634, at *3 (S.D. Cal. 16 Dec. 14, 2015) (“This process, when successful, ‘obviates the need for unnecessary 17 motion practice, which, in turn, conserves both the Court’s and the parties' resources.’”) 18 (internal citation omitted). In order to “serve [this] purpose, parties must ‘treat the 19 informal negotiation process as a substitute for, and not simply a formal prerequisite to, 20 judicial review of discovery disputes.’” U-Haul Co. of Nevada v. Gregory J. Kamer, Ltd., 21 No. 2:12-cv-00231-KJD-CWH, 2013 WL 5278523, at *2 (D. Nev. Sept. 17, 2013) (internal 22 citation omitted). The Court has carefully reviewed Plaintiff’s ex parte motion and her 23 attorney’s declaration, and finds no justification proffered for the failure to meet and 24 confer as required by the Civil Local Rules and Chambers’ Rules. (See ECF Nos. 189, 189- 25 2.) Though he may have made some changes to the letter of request, Plaintiff’s counsel 26 never responded to Defendants’ counsel about their concerns, or discussed with them 27 the basis of their respective positions to see whether resolution could be reached. 2 failed to meet and confer prior to filing the instant motion as required by Civil Local Rule 3 26.1(a). The Court therefore DENIES the motion without prejudice, and ORDERS the 4 parties to meet and confer prior to refiling this motion. See, e.g., Rogers v. Giurbino, 5 288 F.R.D. 469, 477 (S.D. Cal. 2012) (“A court can deny a motion to compel solely 6 because of a party's failure to meet and confer prior to filing the motion.”). 7 The parties are warned that future failures to engage in the meet and confer 8 process as required by Local Rule 16.1(a) in good faith will be considered a basis for 9 the imposition of sanctions. See, e.g., Blair v. CBE Grp. Inc., Civil No. 13-CV-00134-MMA 10 (WVG), 2015 WL 3397629, at *8, *13 (S.D. Cal. May 26, 2015) (“[T]his Court's Civil Local 11 Rules also provide the Court with authority to impose sanctions for ‘[f]ailure of counsel 12 or of any party to comply with these rules, with the Federal Rules of Civil or Criminal 13 Procedure, or with any order of the court.’ CivLR 83.1.a. The Local Rules allow for ‘any 14 and all sanctions authorized by statute or rule or within the inherent power of the court, 15 including, without limitation, dismissal of any actions, entry of default, finding of 16 contempt, imposition of monetary sanctions or attorneys' fees and costs, and other 17 lesser sanctions.’” “While Defendant was within the 30 day deadline to bring the errata 18 dispute to the Court's attention, it failed to promptly meet and confer before contacting 19 the Court. Accordingly, the Court finds that sanctions are appropriate against Defense 20 counsel failing to comply with the discovery dispute requirements of the Chambers 21 Rules and this Court's pretrial Orders, both of which the parties in this case are 22 intimately familiar.”) 23 B. Plaintiff has not demonstrated why this motion should not have been submitted 24 as a Joint Motion as required by Judge Berg’s Chambers’ Rules. 25 With disputes involving discovery, Judge Berg’s Chambers Rules instruct the 26 parties to file joint motions as described in section IV.E. Section IV.F outlines the limited 27 availability of ex parte motions in the discovery context, which are “only appropriate 2 compel is directed to a non-party.” The Chambers Rules specifically state in section IV.G 3 that “[t]he Court prefers the joint motion procedure be employed,” even to address 4 motions to compel discovery directed a non-parties, though the Court understands that 5 “in some circumstances involving third-party discovery practice, the motion may have to 6 be filed ex parte.” 7 The instant motion is a discovery motion. Though it involves the Court requesting 8 the assistance of a third party, the Mexican Judicial authority, it ultimately seeks to 9 compel discovery from OGS, a party. Therefore, OGS may reach agreements with 10 Plaintiff about what discovery falls within the scope of Rule 26 and is consistent with 11 this Court’s rulings. Both Plaintiff’s ex parte motion and Defendants’ opposition indicate 12 that Plaintiff was willing and prepared to participate in the joint motion process to 13 address these issues. (See ECF Nos. 189 at 2, 190 at 3.) Although Plaintiff’s counsel 14 claims to have “stud[ied] the matter in detail both substantively and procedurally,” he 15 appears to justify his decision to file this motion as an ex parte on the notions that (1) 16 “agreeing to all of Defendants’ objections would unduly prejudice Plaintiff’s right to take 17 discovery regarding [OGS]” and (2) “given the shortened time for discovery, an ex parte 18 motion, rather than a joint motion, is the proper way to present this straightforward 19 request for assistance with foreign discovery.” (ECF No. 189-2 at 2.) 20 Plaintiff’s counsel’s explanations are not persuasive. First, as Plaintiff’s counsel is 21 well aware from previous joint motions, (see ECF Nos. 36, 58, 73), a joint motion does 22 not require Plaintiff to agree to Defendants’ objections. Instead it requires each party to 23 set forth its respective position. Second, in the time Plaintiff took to file an ex parte 24 motion, a joint motion could easily have been prepared and filed. Contrary to Plaintiff’s 25 belief, filing an ex parte motion that has not been addressed in meet and confer does 26 not expedite the resolution of this dispute before this Court. Because this is a dispute 27 that could conceivably be resolved, or at least narrowed, by the parties, and because 2 Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995) (“[T]hese hybrid ex parte 3 motions are inherently unfair, and they pose a threat to the administration of justice. 4 They debilitate the adversary system. Though the adversary does have a chance to be 5 heard, the parties' opportunities to prepare are grossly unbalanced. Often, the moving 6 party's papers reflect days, even weeks, of investigation and preparation; the opposing 7 party has perhaps a day or two.”) 8 / / / 9 / / / 10 / / / 11 / / / 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 Ill. CONCLUSION 2 The Court is sensitive to Plaintiff’s time constraints in pursuing discovery from 3 |}OGS. However, those time constraints do not relieve Plaintiff from attempting to 4 resolve discovery disputes with opposing counsel before engaging the Court’s 5 ||intervention. This is particularly true here, where the Court has already made numerous 6 || discovery rulings that can guide the parties’ efforts to reach agreement on the 7 || permissible scope of discovery to OGS.* Shirking the parties’ responsibility to meet and 8 || confer, and then presenting an ex parte motion in a manner that prevents thorough, 9 || focused briefing and presentation of the issues does not facilitate the Court’s efficient 10 resolution of the issues the parties truly cannot resolve. For these reasons, the ex parte 11 || motion is DENIED without prejudice. The parties are encouraged to meet and confer, 12 || work together to narrow their disputes, and file a joint motion for issuance of a letter of 13 || request as quickly as possible. 14 IT IS SO ORDERED. 15 Dated: October 25, 2019 _ □□ 16 : Honorable Michael S. Berg United States Magistrate Judge 18 19 20 21 22 23 24 25 26 1 The Court notes that the orders given from the bench on February 1, 2019, (ECF No. 117), and later 27 || reiterated in the Court’s February 6, 2019 order, (ECF No. 85), specifically discuss relevance and proportionality as related to OGI’s and OGS’ business information, (ECF No. 117 at 9-10, 14-16, 19-22; 28 24-28), as well as a number of the objections asserted by Defendants, (see, e.g., id. at 14-15, 22-28).