Belafon Aradon et al v. Snohomish County et al, No. 2:2020cv01665 - Document 172 (W.D. Wash. 2022)
Court Description: ORDER granting Plaintiffs' 165 Motion to Reopen Discovery and denying Parties' 86 88 91 128 Pending Motions without Prejudice. The discovery period is reopened from the date of this Order through 9/30/2022 for the limited purpose of executing the subpoena duces tecum on Bialek and requesting and completing any additional depositions. The Court will issue a separate amended scheduling order. The Clerk is directed to issue the subpoena duces tecum located at Docket Entry 165 -1. Signed by Judge David W. Christel. (SB)
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Belafon Aradon et al v. Snohomish County et al Doc. 172 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 9 10 NYLYSHA STARVION BELAFON ARADON, et al., Plaintiffs, 11 12 13 14 15 16 17 18 19 20 21 22 v. SNOHOMISH COUNTY, et al., CASE NO. 2:20-CV-1665-RSM-DWC ORDER GRANTING MOTION TO REOPEN DISCOVERY AND DENYING PENDING MOTIONS WITHOUT PREJDUICE Defendants. On June 10, 2022, the Court appointed a guardian ad litem (GAL)—Bruce Wolf—to represent minor Plaintiff A.L. Dkt. 161. The Court directed Wolf to file a status report on or before June 30, 2022 identifying who he has retained as counsel for A.L. Id. The Court also directed counsel for A.L. to file a motion to reopen discovery on or before June 30, 2022 if Wolf found additional discovery necessary. On June 30, 2022, Wolf filed a status report and counsel filed the Motion of Plaintiff A.L. and Bruce Wolf, his Guardian Ad Litem, for Limited Discovery (“Motion for Limited Discovery”). Dkts. 165, 166. On July 11, 2022, Defendants filed a joint response in opposition (Dkt. 169), and on July 15, 2022 Plaintiffs filed a reply (Dkt. 171). 23 24 ORDER GRANTING MOTION TO REOPEN DISCOVERY AND DENYING PENDING MOTIONS WITHOUT PREJDUICE - 1 Dockets.Justia.com 1 After considering the relevant record, the Motion for Limited Discovery (Dkt. 165) is 2 granted. 3 Further, as the Court is allowing additional discovery, the pending Motion Pursuant to 4 Federal Rule Civil Procedure 37(e) for Sanctions Against Defendants Walker and Snohomish 5 County and its VGAL Program for Spoliation of Evidence (“Motion for Sanctions”) (Dkt. 128) 6 and the Motions for Summary Judgment (Dkts. 86, 88, 91) are denied without prejudice with the 7 right to refile. 8 I. 9 In the Motion for Limited Discovery, Wolf 1 seeks to reopen the discovery period to Motion for Limited Discovery 10 conduct limited discovery. Dkt. 165. Specifically, Wolf requests a court order allowing 11 Plaintiffs’ counsel to issue a subpoena duces tecum to Jamie French Bialek (Bialek), the former 12 foster mother for Plaintiff A.H. Id. Wolf states communications between Bialek and the 13 Snohomish County Volunteer Guardian Ad Litem (“VGAL”) Program that were deleted by 14 VGAL personnel may continue to exist electronically in the possession of Bialek. Dkt. 166, Wolf 15 Dec. at 3. Depending on information revealed during the electronic retrieval process, Wolf may 16 seek the Court’s permission to take the deposition of Bialek and “potential other depositions 17 depending on what the electronic discovery retrieval process reveals.” Id. Counsel states this 18 limited discovery is necessary to allow this Court to resolve the pending Motion for Sanctions 19 and the Motions for Summary Judgment. Dkt. 165. 20 Pursuant to Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be 21 modified for good cause and with the judge’s consent. See also Local Civil Rule (“LCR”) 22 23 1 As Wolf has been appointed GAL for Plaintiff A.L., the Court will refer to Plaintiff A.L. and GAL Wolf 24 as “Wolf.” ORDER GRANTING MOTION TO REOPEN DISCOVERY AND DENYING PENDING MOTIONS WITHOUT PREJDUICE - 2 1 16(b)(6); Fed.R.Civ.P. 6(b)(1)(A). “[R]equests for extensions of time made before the applicable 2 deadline has passed should normally be granted in the absence of bad faith on the part of the 3 party seeking relief or prejudice to the adverse party.” Ahanchian v. Xenon Pictures, Inc., 624 4 F.3d 1253, 1259 (9th Cir. 2010) (internal quotations and alterations omitted). However, if a 5 motion for an extension is made after a deadline, the Court may not extend time absent a 6 showing of excusable neglect. Fed.R.Civ.P. 6(b)(1)(B). To determine whether neglect is 7 excusable, the Supreme Court has stated that the test “is at bottom an equitable one, taking 8 account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Services 9 Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993). 10 In this case, the discovery period has closed and, thus, Wolf must show excusable neglect 11 to reopen discovery. First, the Court invited a motion to reopen discovery because Wolf was 12 appointed to represent A.L. after the discovery period closed. See Dkt. 161. Second, due to 13 Wolf’s appointment as A.L.’s GAL on June 10, 2022, the Court found it was necessary to re-set 14 the trial date. Dkt. 163. Any of the parties could have brought this representational deficiency to 15 the Court’s attention at any time including before the discovery deadline. On this basis, the Court 16 finds excusable neglect. 17 Defendants contend that even if the Court finds good cause, the motion should be denied 18 because further delay in this case would prejudice them. Dkt. 169 at 3. The Court notes the 19 pending summary judgment motions have been re-noted and stricken several times due, in part, 20 to Plaintiff’s post-discovery motions. Dkts. 117, 163. However, as noted above, Defendants 21 share responsibility for not bringing the representational deficiency to the Court’s attention 22 before the discovery deadline and before the dispositive motions deadline. Thus, while the Court 23 is reluctant to further delay consideration of the motions for summary judgement, the interests of 24 ORDER GRANTING MOTION TO REOPEN DISCOVERY AND DENYING PENDING MOTIONS WITHOUT PREJDUICE - 3 1 justice require the Court to reopen the discovery period for the limited purpose requested by A.L. 2 Also, any prejudice to Defendants in allowing Wolf to conduct limited discovery does not 3 outweigh Plaintiffs’ interests in completing discovery to ensure A.L. has been able to fairly 4 litigate this case. 5 Finally, Wolf’s request is narrowly tailored to obtain relevant and potentially spoiled 6 evidence, and to potentially seek this Court’s approval to depose A.H.’s former foster mother 7 and others “depending on what the electronic discovery retrieval process reveals.” Dkt. 165 at 8 12; Dkt. 166 at 3. The Court also notes Plaintiffs’ motion withdraws their previously expressed 9 intent to potentially seek future leave to conduct additional discovery. Id. at 3. 10 In sum, the Court has considered all relevant circumstances surrounding Wolf’s request 11 to reopen the discovery period and finds, for the above stated reasons, Plaintiffs have shown 12 excusable neglect. Therefore, the Motion for Limited Discovery (Dkt. 165) is granted. The 13 discovery period is re-opened from the date of this Order through September 30, 2022 for the 14 limited purpose of executing the subpoena duces tecum on Bialek and requesting and completing 15 (if leave is granted by this Court) any depositions related directly thereto. 16 The clerk of court is directed to issue to Jamie French Bialek the Fed. R. Civ. P. 45 17 subpoena duces tecum located at Docket Entry 165-1. Plaintiffs’ counsel is responsible for 18 ensuring the subpoena duces tecum is properly served. 19 II. 20 The Court finds the potential new discovery may impact the Motion for Sanctions and the Motions for Sanctions and Summary Judgment 21 Motions for Summary Judgment. Therefore, the Motion for Sanctions (Dkt. 128) and the 22 Motions for Summary Judgment (Dkts. 86, 88, 91) are denied without prejudice with the right to 23 24 ORDER GRANTING MOTION TO REOPEN DISCOVERY AND DENYING PENDING MOTIONS WITHOUT PREJDUICE - 4 1 refile. See Fed. R. Civ. P. 56(d) (when a nonmovant cannot present facts essential to justify its 2 opposition, the court may defer or deny the motion). 2 3 The parties are not required to refile evidence previously filed in this case. However, the 4 Court intends to consider only the evidence cited to in any motions for summary judgment; thus, 5 the parties must, in any subsequent motion for summary judgment, specifically cite to the 6 evidence on which they rely. See Fed. R. Civ. P. 56(c)(3) (“[t]he court need consider only the 7 cited materials ...”). The parties may not refile any motion for summary judgment or request for 8 sanctions until after the discovery period has closed. 9 10 III. Conclusion For the above stated reasons, the Motion for Limited Discovery (Dkt. 165) is granted, the 11 Motion for Sanctions (Dkt. 128) and the Motions for Summary Judgment (Dkts. 86, 88, 91) are 12 denied without prejudice with the right to re-file. 13 The discovery period is reopened from the date of this Order through September 30, 2022 14 for the limited purpose of executing the subpoena duces tecum on Bialek and requesting and 15 completing any additional depositions. All discovery, including any potential deposition, must 16 be completed by September 30, 2022. Thus, the Court directs the parties to schedule all 17 potential deposition while awaiting Court approval. No additional extensions will be granted 18 19 20 21 22 23 2 The denial of a motion without prejudice is non-dispositive. See Jones v. Corr. Corp. of Am., 2011 WL 1706838, at *4 (D. Ariz. May 5, 2011) (internal quotations omitted) (“A denial without prejudice is different than a denial with prejudice in the sense that the former does not preclude a subsequent motion based on the same argument.”). Therefore, in the interest of judicial efficiency and because the Court has denied the Motions for Summary Judgment without prejudice, the Court enters this Order denying the Motions for Summary Judgment, not a report and recommendation. See McCain v. California Highway Patrol, 2011 WL 6328221, at *1, n.1 (E.D. Cal. Dec. 16, 2011) (noting the magistrate judge’s denial without prejudice of the plaintiff’s partial motion for summary judgment was non-dispositive and, therefore, the magistrate judge was not required to submit findings and recommendations). 24 ORDER GRANTING MOTION TO REOPEN DISCOVERY AND DENYING PENDING MOTIONS WITHOUT PREJDUICE - 5 1 absent a showing of extraordinary circumstances. Further, dispositive motions may not be refiled 2 until after the close of discovery. The Court will issue a separate amended scheduling order. 3 Directions to the Clerk. The Court previously removed the Motions for Summary 4 Judgment from the Court’s calendar, therefore the Clerk is directed to re-open those Motions for 5 Summary Judgment (Dkts. 86, 88, 91) and indicate they are denied without prejudice. The Clerk 6 is also directed to issue the subpoena duces tecum located at Docket Entry 165-1. 7 Dated this 19th day of July, 2022. A 8 9 David W. Christel United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING MOTION TO REOPEN DISCOVERY AND DENYING PENDING MOTIONS WITHOUT PREJDUICE - 6
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