Masterpiece Leaded Windows Corporation v. Joslin et al, No. 3:2008cv00765 - Document 22 (S.D. Cal. 2009)
Court Description: ORDER granting 17 Plaintiff's Motion to modify scheduling order. Signed by Magistrate Judge Jan M. Adler on 5/22/09. (tkl) (jrl).
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Masterpiece Leaded Windows Corporation v. Joslin et al Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MASTERPIECE LEADED WINDOWS CORPORATION, 12 Plaintiff, 13 v. 14 SONNY J. JOSLIN, an individual, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08-CV-0765-JM (JMA) ORDER GRANTING PLAINTIFF’S MOTION TO MODIFY SCHEDULING ORDER [Doc. 17] 17 Plaintiff Masterpiece Leaded Windows Corporation (“Plaintiff”) has filed a motion 18 19 to modify the scheduling order. Defendants Sonny J. Joslin, Eric James Tingey, and 20 Decor A Door & Window, Inc. (“Defendants”) oppose. For the reasons set forth below, 21 Plaintiff’s motion is GRANTED. 22 I. 23 BACKGROUND On September 16, 2008, the Court issued a Case Management Conference 24 Order Regulating Discovery and Other Pretrial Proceedings (“scheduling order”) which 25 contained, as pertinent here, the following deadlines: 26 27 Expert disclosure deadline Rebuttal expert disclosure deadline Discovery cutoff Dispositive motion filing cutoff February 13, 2009 March 20, 2009 April 17, 2009 May 15, 2009 28 08cv0765 Dockets.Justia.com 1 2 Sept. 16, 2008 Order at ¶¶ 4-6.1 In January 2009, Plaintiff’s counsel, Gastone Bebi, Esq., a sole practitioner, 3 switched from a Palm PDA (personal digital assistant) to an iPhone, which necessitated 4 that he convert from a Palm electronic calendar to Microsoft Outlook’s electronic 5 calendaring system. Bebi Decl., ¶ 5. All of the Palm data had to be manually inputted 6 into the Outlook program. Id., ¶ 6. Mr. Bebi understood that all dates, “tickles”, and 7 calendaring data were transferred into Outlook by January 26, 2009; on that date, he 8 stopped using the Palm PDA and Palm calendar and relied solely on the Outlook 9 program for calendaring alerts. Id. 10 Unbeknownst to Mr. Bebi, none of the dates and reminders regarding this case 11 were transferred into Outlook. Id., ¶ 7. Mr. Bebi has acted as litigation counsel for 12 Plaintiff on several matters over the course of several years. Id., ¶ 2. During January 13 2009, Mr. Bebi was handling five potential litigation files on behalf of Plaintiff, not 14 including this matter. Id., ¶ 8. Mr. Bebi was also acting as coverage counsel for Plaintiff 15 in a case filed in the Central District of California. Id. Because he was not acting as 16 litigation counsel in that matter, Mr. Bebi instructed the person transferring his 17 calendaring data to disregard all dates for that case. Id. According to Mr. Bebi, 18 “Confusion ensued, and the dates relating to [the] instant matter, my only other then 19 pending federal case, were not transferred to my electronic calendar.” Id. The last 20 “tickle” that Mr. Bebi received regarding this case was for the January 12, 2009 21 telephonic Case Management Conference (“CMC”), which he participated in. Id., ¶ 9. 22 In late December 2008, Mr. Bebi asked his paralegal to draft Interrogatories and 23 a Request for Production of Documents in this matter. Id., ¶ 11. He also entered a 24 reminder and a “tickle” for February 1, 2009 to send out the discovery on his Palm 25 calendaring software. Id. This data was not subsequently transferred into the Outlook 26 program. Id. In January 2009, Mr. Bebi’s paralegal left to work for another attorney, 27 28 1 The Court subsequently continued the deadline for the filing of dispositive motions to June 5, 2009. See Apr. 16, 2009 Order at 3. 2 08cv0765 1 and the rough drafts of the discovery were placed in the file. Id. On March 17, 2009, 2 Mr. Bebi’s law clerk came across the rough drafts, and placed them in Mr. Bebi’s in-box 3 for review. Id., ¶ 12. Mr. Bebi states that he was “unaware of the deadlines associated 4 with this case” due to “the press of business, the lack of alerts regarding the discovery 5 cut-off, and having to deal with [his] caseload while looking for another paralegal.” Id. 6 The discovery was subsequently served on March 23, 2009. Id.2 7 8 9 10 On February 5, 2009, counsel for Defendants, Chandra Moore, Esq., sent Mr. Bebi an email which stated, in relevant part: As a reminder, at the CMC on January 12, 2009, you informed me and Judge Adler that you had gathered documents to support your client’s position . . . . I am following up because we have expert disclosures due on February 13, 2009. 11 12 Defs.’ Opp’n at 2; Moore Decl., Ex. A. Ms. Moore also inquired about whether Plaintiff 13 intended to proceed with the litigation. Id. Mr. Bebi sent a responsive email on 14 February 6, 2009 in which he stated that he would try to get back to Ms. Moore by that 15 afternoon regarding her inquiry. Defs.’ Opp’n at 3; Moore Decl., Ex. A. Mr. Bebi had 16 previously decided, as of December 2008, that retaining a forensic accountant expert 17 would not be cost-efficient as Plaintiff had received information that Defendant Decor A 18 Door & Window, Inc. was going out of business. Bebi Decl., ¶ 10. 19 Plaintiff contends that “but for the calendaring problem, the loss of staff and 20 confusion in the calendaring, the discovery that was served would have been 21 propounded within the time mandated by the court.” Pl.’s Reply at 2. Plaintiff presently 22 seeks a short continuance of the discovery cutoff in order to obtain responses to the 23 interrogatories and document requests already served, and to depose Defendant Joslin. 24 Pl.’s Mem. at 2. Plaintiff does not contemplate or request any other discovery. Id. 25 26 27 28 2 As the Court has previously indicated (see Apr. 16, 2009 Order at 2 n.1), this discovery was not timely served pursuant to the terms of the Court’s scheduling order, which requires all discovery to be “initiated a sufficient period of time in advance of the cutoff date, so that it may be completed by the cutoff date, taking into account the times for service, notice, and response as set forth in the Federal Rules of Civil Procedure.” Sept. 16, 2008 Order at ¶ 5 (emphasis in original). 3 08cv0765 1 Defendants oppose, and argue that this situation was created by Plaintiff’s own doing 2 and is “without good cause or substantial justification.” Defs.’ Opp’n at 2. 3 II. LEGAL STANDARDS Under Rule 16(b) of the Federal Rules of Civil Procedure, the court must issue a 4 5 scheduling order after consulting with counsel at a scheduling conference or by 6 telephone, mail, or other means. Fed. R. Civ. P. 16(b)(1). “The scheduling order must 7 limit the time to join other parties, amend the pleadings, complete discovery, and file 8 motions.” Fed. R. Civ. P. 16(b)(3). “A schedule may be modified only for good cause 9 and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard 10 under Rule 16(b) primarily considers the diligence of the party seeking the amendment. 11 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also 12 Fed. R. Civ. P. Advisory Committee Notes, 1983 Amendment (“[T]he court may modify 13 the schedule on a showing of good cause if it cannot reasonably be met despite the 14 diligence of the party seeking the extension.”). “Although the existence or degree of 15 prejudice to the party opposing the modification might supply additional reasons to deny 16 a motion, the focus of the inquiry is upon the moving party’s reasons for seeking 17 modification.” Johnson, 975 F.2d at 604. In other words, if the moving party was not 18 diligent, the inquiry should end. Id. “Central to [the] required showing of diligence is whether the movant discharged 19 20 [its] obligation under Rule 16 to collaborate with the district court in managing the case.” 21 Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). The pertinent inquiry 22 includes: (1) whether the movant was diligent in assisting the Court in creating a 23 workable Rule 16 scheduling order, (2) whether the movant’s noncompliance with 24 deadlines occurred, notwithstanding its diligent efforts to comply, because of matters 25 unforeseen at the time of the Rule 16 scheduling conference, and (3) whether the 26 movant was diligent in seeking amendment of the scheduling order once it became 27 apparent that it could not comply with the order. Id. at 608. 28 // 4 08cv0765 1 2 III. DISCUSSION Plaintiff satisfies all of the above diligence inquiries and thus has demonstrated 3 good cause for its motion to modify the scheduling order. While the Court is, of course, 4 concerned that Plaintiff’s discovery was not served in a timely manner, the Court finds 5 nothing to indicate that Mr. Bebi’s version of events is anything other than truthful and is 6 convinced that the mistake in the calendaring of the dates in this case was completely 7 inadvertent. The subsequent turnover in Mr. Bebi’s office staff then further exacerbated 8 the problem, particularly given the fact that Mr. Bebi is a sole practitioner. Mr. Bebi did 9 not realize, until the April 15, 2009 conference call, that Plaintiff’s discovery had not 10 been timely served and that the discovery cutoff was only two days away. He then 11 immediately sought permission from the Court to modify the scheduling order by 12 verbally requesting a modification of the schedule as well as by seeking permission to 13 file a written motion on the matter. Plaintiff did not intentionally disregard the scheduling 14 order nor did it act in a cavalier manner when it discovered that the discovery cutoff was 15 immediately upon it. 16 Although Defendant essentially argues that Ms. Moore’s email to Mr. Bebi in 17 February regarding the deadline for expert disclosures should have caused him to look 18 at the scheduling order or to consider the status of the schedule, it is not unreasonable 19 that he did not do so. Plaintiff, by that time, had already determined that it would not 20 retain a damages expert, and the Court does not believe that Mr. Bebi necessarily 21 should have been alerted by the email that the discovery period was drawing to a close. 22 This is not a situation in which Plaintiff treated the scheduling order as a 23 “frivolous piece of paper.” Johnson, 975 F.2d at 610. As soon as Plaintiff realized the 24 oversight, it sought to correct it, and now seeks only a short extension of time to 25 complete a relatively small amount of discovery. A short extension of the discovery 26 cutoff, and the resultant short extension of other remaining dates in the case, will not 27 significantly disrupt the Court’s management of this case nor would it “reward the 28 indolent and cavalier.” Id. 5 08cv0765 Defendants argue that they will be prejudiced if discovery is reopened, as they 1 2 will be “forced to waste a significant amount of time and money in order to prepare for a 3 trial, including participating in discovery and depositions that should have taken place 4 long ago.” Defs.’ Opp’n at 5. It was only because of Plaintiff’s inadvertence, however, 5 that Defendants were not previously required to respond to discovery. The reopening of 6 discovery will require Defendants to do nothing more than what they would have been 7 required to do had Mr. Bebi’s calendaring issues not occurred. In any event, the focus 8 of the inquiry on a motion to modify a scheduling order is upon the moving party’s 9 reasons for seeking modification and whether good cause has been demonstrated, not 10 upon the prejudice to the party opposing the modification. Johnson, 975 F.2d at 604.3 11 IV. 12 13 14 15 CONCLUSION For the foregoing reasons, Plaintiff’s motion to modify the scheduling order is GRANTED. The Court will separately issue an amended scheduling order. IT IS SO ORDERED. DATED: May 22, 2009 16 Jan M. Adler U.S. Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 3 The Court makes no finding as to whether Plaintiff complied with its initial disclosure obligations under Rule 26(a)(1) as that issue is not properly before the Court. 6 08cv0765
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