-WVG Mondares v. Kaiser Foundation Hospital et al, No. 3:2010cv02676 - Document 18 (S.D. Cal. 2011)
Court Description: ORDER Denying Plaintiff's 15 Ex Parte Motion to reopen Discovery. Signed by Magistrate Judge William V. Gallo on 11/7/11. (ecs)
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-WVG Mondares v. Kaiser Foundation Hospital et al Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 ELENITA MONDARES, ) ) Plaintiff, ) ) v. ) ) KAISER FOUNDATION HOSPITAL et ) al., ) ) Defendants. ) _______________________________ ) No. 10-CV-2676-BTM(WVG) ORDER DENYING PLAINTIFF’S EX PARTE MOTION TO REOPEN DISCOVERY [DOC. NO. 15] 16 Plaintiff moves the Court for an order to re-open discovery. 17 The Court finds this matter suitable for decision without oral 18 argument. 19 because good cause does not exist to amend the scheduling order to 20 reopen discovery. S.D. Cal. L. Civ. R. 7.1. 21 I. Plaintiff’s motion is denied BACKGROUND 22 On April 28, 2011, the Court convened a case management 23 conference and subsequently issued a scheduling order that desig- 24 nated October 3, 2011, as the fact discovery cut-off. 25 at ¶ 5.) 26 the parties. (Doc. No. 10 The scheduling order was created after consultation with 27 On October 19, 2011, the Court convened a mandatory settle- 28 ment conference and learned for the first time that Plaintiff 1 10CV2676 Dockets.Justia.com 1 desired to reopen discovery. 2 parties had brought this fact to the Court’s attention and the 3 discovery deadline passed as originally scheduled. 4 reserved judgment and requested briefing on the matter. 5 Prior to this time, none of the The Court On October 24, 2011, Plaintiff filed an ex parte motion to 6 explain the reasons for her request. 7 motion is based on her counsel’s involvement in other trials in 8 state court. 9 have met the cutoff date despite her diligence due to Ms. Brady- 10 Davis’ aggressive trial calendar, including the case involving this 11 Plaintiff.”).) 12 (Doc. No. 15.) Plaintiff’s (Doc. No. 15 at 4 (“Plaintiff could not reasonably Plaintiff explains she wishes to reopen discovery in order to 13 complete the deposition of 9 witnesses. 14 originally noticed on September 16, 2011, and were to take place on, 15 or in the few days preceding, the discovery cut-off. 16 argues that her deposition notices were reasonable because they were 17 served at least 10 days prior to the deposition date. 18 Defendants oppose the ex parte These depositions were motion on Plaintiff grounds that 19 Plaintiff has not diligently sought discovery or extension of the 20 discovery cut-off. In part, Defendants argue that the mere 16 or so 21 days’ notice Plaintiff provided was not reasonable given the number 22 of deponents and the fact that two of the depositions were for Rule 23 30(b)(6) witnesses and included 220 possible topics. 24 also 25 discovery in this case. 26 27 28 indicate that Plaintiff III. has not propounded Defendants any written LEGAL STANDARD The decision to modify a scheduling order is within the broad discretion of the district court. 2 Johnson v. Mammoth Recreations, 10CV2676 1 Inc., 975 F.2d 604, 607 (9th Cir. 1992) (quoting Miller v. Safeco 2 Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). 3 Civil Procedure 16 provides a stringent standard whereby the party 4 who seeks to amend the Court’s scheduling order must show “good 5 cause” 6 deadline. 7 only be amended with the Court’s consent. why the Court should set aside See Fed. R. Civ. P. 16(b)(4). or Federal Rule of extend a discovery The scheduling order may Id. 8 Under Rule 16(b)’s good cause standard, the Court’s primary 9 focus is on the movant’s diligence in seeking the amendment. 10 Johnson, 975 F.2d at 609. 11 demonstrate that the schedule “cannot reasonably be met despite the 12 diligence of the party seeking the extension.” 13 Civ. 14 “[C]arelessness is not compatible with a finding of diligence and 15 offers no reason for a grant of relief. 16 degree of prejudice to the party opposing the modification might 17 supply additional reasons to deny a motion, the focus of the inquiry 18 is upon the moving party’s reasons for seeking modification.” 19 (citations omitted). 20 diligent in his or her pretrial preparations, the inquiry should end 21 there and the measure of relief sought from the Court should not be 22 granted. 23 Cir. 2002). 24 bears the burden of proving good cause. 25 at 608. 26 27 28 P. 16 advisory “Good cause” exists if a party can committee’s notes Id. (citing Fed. R. (1983 amendment)). Although the existence or Id. If the party seeking modification was not Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th The party seeking to continue or extend the deadlines See id.; Johnson, 975 F.2d In addressing the diligence requirement, a sister Court has noted: [T]o demonstrate diligence under Rule 16's “good cause” standard, the movant may be required to show the following: 3 10CV2676 1 (1) that she was diligent in assisting the Court in creating a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that she was diligent in seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order. 2 3 4 5 6 Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) 7 (citations omitted). 8 III. 9 DISCUSSION The Court denies Plaintiff’s motion for the following three 10 reasons.1/ 11 A. Plaintiff’s Excuse For Not Seeking Discovery Is Unpersuasive 12 Plaintiff’s sole reason for not being able to take discovery 13 until now is her counsel’s “aggressive trial calendar.” This reason 14 is unpersuasive for two reasons. 15 counsel’s busy schedule are unrelated to this case, and the delay 16 they cause are not a product of this case. 17 appears before this Court juggles multiple cases and has a busy 18 schedule. 19 advance Plaintiff’s burden to show she was diligent in this case. 20 Quite to the contrary, these actually militate against a finding of 21 diligence, as counsel essentially admitted she was not diligent in 22 this case because she was busy litigating other cases. 23 given that trial dates are set in advance, Plaintiff and her counsel First, trials in other cases and Every attorney who Second, other trials and a busy schedule do nothing to Moroever, 24 25 26 27 28 1/ Thou gh not much discussion is necessary, Plaintiff argues she will be prejudiced if she is unable to engage in the discovery she should have conducted long ago. However, in the Ninth Circuit, “[p]rejudice is not the relevant inquiry. Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Global Bldg. Sys. v. Brandes, 2008 U.S. Dist. LEXIS 53958, *8 (quoting Johnson, 975 F.2d at 609) (internal quotation marks omitted). In any event, “[a] party who fails to pursue discovery in the face of a court ordered cut-off cannot plead prejudice from his own inaction.” Rosario v. Livaditis, 963 F.2d 1013, 1019 (7th Cir. 1992). Defendants have not done anything to cause delay or prevent Plaintiff from seeking discovery in this case. 4 10CV2676 1 had advance notice and had ample opportunity to seek extension of 2 the discovery deadline. 3 discovery deadline in this case should have been surprises to 4 Plaintiff. Neither the trials in other cases nor the Ultimately, Plaintiff’s excuse is utterly unpersuasive. 5 As discussed further below, with Plaintiff’s inadequate 6 excuse in mind, the Court finds that Plaintiff was not diligent in 7 any way here. 8 B. Plaintiff Did Not Diligently Seek Discovery 9 Except for the flurry of deposition notices served essen- 10 tially on the eve of the fact discovery cut-off, Plaintiff has not 11 engaged in any discovery to date. The deposition notices she served 12 a mere two weeks before the discovery cut-off were her first 13 attempts at any discovery at all. 14 had the opportunity to conduct discovery during the 5 months and 6 15 days between April 28, 2011, and October 3, 2011, she waited until 16 the sixteenth day before the deadline was set to pass before she 17 engaged in any discovery at all. And then, she bombarded Defendants 18 with multiple deposition notices, two of which contained hundreds of 19 PMK topics. This sort of delay is the antithesis of diligence, and, 20 besides her own failure to do discovery, Plaintiff provides no 21 reasonable reason why she could not meet the discovery deadline. 22 C. 23 Essentially, although Plaintiff Plaintiff Did Not Diligently Seek To Extend the Deadline Rule 16(b)(4) makes clear that the Court’s approval is 24 required 25 sometimes treat this requirement as though the Court’s acquiescence 26 is a foregone conclusion that will be freely bestowed if they simply 27 ask whenever they get the chance. to amend a scheduling order. Nonetheless, So is the case here. parties However, 28 5 10CV2676 1 the Court takes seriously the schedule it sets and parties’ delay 2 and failure to diligently seek extension of dates. 3 Despite knowing that the discovery cut-off was fast approach- 4 ing and she had not conducted any discovery, Plaintiff made no 5 attempt to seek an extension before it passed. 6 attempted to jam 9 depositions down Defendants’ proverbial throats 7 before the deadline passed in order to get them in “on time.”2/ 8 Plaintiff apparently did not anticipate that Defendants might object 9 to the notices and additional time may be necessary to resolve the 10 Rather, Plaintiff dispute and take the depositions. 11 Moreover, even after Defendants objected to receiving nine 12 deposition notices, including two PMK deposition notices with 220 13 topics, with just two weeks to prepare, Plaintiff still neglected to 14 seek a deadline extension or to notify the Court of the dispute.3/ 15 Instead, Plaintiff waited until 16 days after the discovery deadline 16 had passed before mentioning the discovery dispute, or her desire 17 for additional time, to the Court. 18 was in passing during the settlement conference, not through any 19 sort of motion or in adherence to the Court’s Chambers Rules. 20 Plaintiff’s self-proclaimed diligence after the discovery deadline And when she finally did so, it 21 22 23 24 25 2/ Plaintiff contends her deposition notices were timely because they were served at least 10 days before the deposition date. While that may be true if she had only served one or two deposition notices, the combined impact of nine notices, including two multi-topic PMK notices, rendered her notices unreasonable and untimely as a result. See Schwarzer et al., Cal. Prac. Guide: Fed. Civ. Proc. Before Trial, § 11:1436 (The Rutter Group 2007 Rev.) (“Ten days’ notice is normally reasonable, but it depends on the circumstances of the case . . . .”). 3/ 26 27 28 Defendants objected to the deposition notices on September 21, 2011, when Plaintiff still had time to seek extension of the cut-off. Plaintiff knew at least as of that date that she may face problems or delay. Yet, she remained silent, did not seek the Court’s intervention in the dispute, and did not seek extension of the discovery deadline. The Court’s response very well may have been the same as it is now even if Plaintiff had requested an extension before the deadline arrived. But at least Plaintiff would have been able to react and salvage some discovery in the short time remaining. 6 10CV2676 1 passed is of no moment. See Cornwell v. Electra Cent. Credit Union, 2 439 F.3d 1018, 1027 (9th Cir. 2006) (“Attempting to secure discovery 3 after a discovery cutoff date does not cure a party’s failure to 4 conduct diligent discovery beforehand.”). 5 Plaintiff’s delay is further inexcusable since she knew in 6 advance that she or her counsel were going to be in several trials, 7 which are inherently time-consuming. Regardless of when those trial 8 dates were set, she knew they loomed on the horizon, as did the 9 discovery deadline in this case. Yet, she did not seek an extension 10 of the deadline in this case to accommodate the busy trial schedule 11 nor did she increase her efforts to meet her trial demands and 12 conduct discovery in this case. 13 IV. CONCLUSION 14 In short, because Plaintiff has not shown she was diligent in 15 her pursuit of discovery, she has not satisfied her burden to 16 establish good cause for amending the scheduling order. 17 result, Plaintiff’s motion is denied. 18 closed. 19 IT IS SO ORDERED. 20 DATED: Fact discovery shall remain November 7, 2011 21 22 Hon. William V. Gallo U.S. Magistrate Judge 23 24 25 26 27 28 7 As a 10CV2676
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