Bernier v. Travelers Property Casualty Insurance Company, Inc., No. 3:2011cv00078 - Document 53 (S.D. Cal. 2012)
Court Description: ORDER denying 37 Plaintiff's Motion to (1) Extend Discovery Cutoff; (2) shorten time for a motion for contempt of court, (3) shorten time to compel document production, and (4) shorten time for leave of court of amend Plaintiff's Complaint. Signed by Magistrate Judge Ruben B. Brooks on 3/19/12. (All non-registered users served via U.S. Mail Service)(lmt)
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Bernier v. Travelers Property Casualty Insurance Company, Inc. Doc. 53 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 REJEANNE BERNIER, an individual, 12 Plaintiff, 13 v. 14 15 TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, INC., a Connecticut corporation, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 11cv0078 JLS(RBB) ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION TO (1) EXTEND DISCOVERY CUTOFF, (2) SHORTEN TIME FOR A MOTION FOR CONTEMPT OF COURT, (3) SHORTEN TIME TO COMPEL DOCUMENT PRODUCTION, AND (4) SHORTEN TIME FOR LEAVE OF COURT TO AMEND PLAINTIFF’S COMPLAINT [ECF NO. 37] INTRODUCTION On January 31, 2012, Plaintiff, Rejeanne Bernier, filed an Ex 20 Parte Application to extend the discovery cutoff and shorten time 21 to file certain motions. 22 ECF No. 37).1 23 discovery cutoff date, (2) shorten time for a motion to hold a 24 third-party witness in contempt and compel deposition testimony 25 from him, (3) shorten time for a motion to compel discovery from (Notice Ex Parte Appl., Jan. 31, 2012, In her Application, she seeks to (1) extend the 26 27 28 1 Because Bernier’s Notice and Memorandum of Points and Authorities are not consecutively paginated, the Court will cite to them using the page numbers assigned by the electronic case filing system. 1 11cv0078 JLS(RBB) Dockets.Justia.com 1 the Defendant, and (4) shorten time for a motion to amend her 2 Complaint. 3 Company filed its Opposition to Bernier’s Ex Parte Application on 4 February 3, 2012. (Def. Travelers Opp’n Ex Parte Appl. 1, Feb. 3, 5 2012, ECF No. 38.) Shortly thereafter, Plaintiff filed her Reply. 6 (Pl. Rejeanne Bernier’s Reply 1, Feb. 6, 2012, ECF No. 39.) 7 (Id.) Defendant Travelers Property Casualty Insurance After reviewing the Ex Parte Application, Opposition, and 8 Reply, the Court concludes that the Plaintiff is not entitled to 9 the relief she requests. 10 I. 11 THE BASIS FOR AN EX PARTE MOTION 12 Rejeanne Bernier is a pro se Plaintiff. Courts liberally 13 construe the pleadings of pro se litigants and give them the 14 benefit of any doubt. 15 Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th 16 Cir. 1985)). 17 pleadings and other filings. 18 bound by the rules of procedure.” 19 (9th Cir. 1995). See Hebbe v. Pliler, 627 F.3d 338, 342 (9th This Court has applied this principle to Bernier’s Nonetheless, “pro se litigants are Ghazali v. Moran, 46 F.3d 52, 54 20 Plaintiff has developed a pattern of filing ex parte motions. 21 She has not demonstrated that this request is a proper subject for 22 ex parte consideration. 23 emergency relief that will only be granted upon an adequate showing 24 of good cause or irreparable injury to the party seeking relief.” 25 K. Clark v. Time Warner Cable, No. CV 07-1797-VBF(RCx), 2007 U.S. 26 Dist. LEXIS 100716, at *2 (C.D. Cal. May 3, 2007) (citing Mission 27 Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488, 492 28 (C.D. Cal. 1995)). “Ex parte applications are a form of The moving party must be “without fault” in 2 11cv0078 JLS(RBB) 1 creating the need for ex parte relief or establish that the “crisis 2 [necessitating the ex parte application] occurred as a result of 3 excusable neglect.” 4 Id. An ex parte application seeks to bypass the regular noticed 5 motion procedure; consequently, the party requesting ex parte 6 relief must establish a basis for giving the application 7 preference. 8 883 F. Supp. at 492. 9 No. 37] fails this test. See Mission Power Eng’g Co. v. Continental Cas. Co., Bernier’s pending Ex Parte Application [ECF See, e.g., Family Home & Fin. Ctr., Inc. 10 v. Federal Home Loan Mortg. Corp., 461 F. Supp. 2d 1188, 1192 n.5 11 (C.D. Cal. 2006). 12 Plaintiffs from obtaining additional necessary discovery, their 13 remedy was to file a motion for relief from the Scheduling Order. 14 They did not do so and now cannot be heard to complain about the 15 unfairness of the Court-imposed deadlines.” 16 failure to diligently pursue discovery before summary judgment). 17 “If the Court’s pretrial schedule precluded Id. (commenting on the Plaintiff has failed to show that her multiple requests should 18 be considered on an ex parte basis. For that reason alone, the Ex 19 Parte Application should be denied. Nevertheless, the Court will 20 also address the merits of Bernier’s Application. 21 II. 22 EXTENDING THE DISCOVERY CUTOFF DATE 23 Plaintiff identifies the current discovery cutoff date as 24 January 31, 2012. 25 2012, ECF No. 37.) 26 extended that deadline to February 13, 2012. 27 30, 2012, ECF No. 36.) 28 order to file a motion to compel deposition testimony from a third- (Mem. P. & A. Supp. Ex Parte Appl. 3-4, Jan. 31, The Court, however, on January 30, 2012, (Min. Order 1, Jan. Bernier seeks to modify that deadline in 3 11cv0078 JLS(RBB) 1 party witness and, if her motion is granted, take the deposition. 2 (Mem. P. & A. Supp. Ex Parte Appl. 4, Jan. 31, 2012, ECF No. 37.) 3 She also intends to bring a motion to compel the production of 4 audio recordings and “communications.” 5 Bernier adds that she would like to extend the discovery cutoff to 6 depose “those expert witnesses that neither TRAVELERS nor BERNIER 7 were able to depose in time . . . .” 8 9, ECF No. 39.) 9 (Id.) In her Reply, (Pl. Rejeanne Bernier’s Reply This Court issued a Case Management Conference Order on March 10 4, 2011. The Order provided that all discovery was to be completed 11 by October 31, 2011. 12 That deadline has been extended twice. 13 extended until January 31, 2012, and the deadline for serving 14 requests for production of documents and interrogatories was 15 extended until November 29, 2011 [ECF No. 18]. 16 2012, the Court granted the Defendant’s Motion to Compel Answers to 17 Deposition Questions from Bernier and extended the discovery cutoff 18 for both parties to February 13, 2012. 19 2012, ECF No. 36.) (Case Mgmt. Conference Order 1, ECF No. 10.) The discovery cutoff was On January 30, (Min. Order 1, Jan. 30, 20 A. Moving to Compel the Production of Documents 21 On the last day for serving written discovery, November 29, 22 2011, the Plaintiff served her second request for production of 23 documents. 24 ECF No. 38.) 25 Travelers Property Casualty Insurance Company, Inc. took of 26 Rejeanne Bernier at any time for any claim,’ and repeated this same 27 request to TRAVELERS as it applies to any recording of Mr. Hans 28 Croteau.” (Def. Travelers Opp’n Ex Parte Appl. 4, Feb. 3, 2012, She sought “‘[a]ny and all audio recordings defendant (Pl. Rejeanne Bernier’s Reply 3, Feb. 6, 2012, ECF No. 4 11cv0078 JLS(RBB) 1 3.) The Defendant responded that it “‘has been unable to locate 2 any responsive documents [or] recordings.’” (Id.) 3 B. 4 On January 10, 2012, approximately one month before the Moving for Contempt and to Compel Deposition Testimony 5 discovery cutoff, and ten months after the original Case Management 6 Conference Order, Plaintiff served a deposition subpoena on her 7 neighbor, Eric Boice, as a third-party witness. 8 Travelers Opp’n Ex Parte Appl. 4, Feb. 3, 2012, ECF No. 38.) 9 Boice’s deposition was set for January 26th. (See Def. (Mem. P. & A. Supp. 10 Ex Parte Appl. 11, Jan. 31, 2012, ECF No. 37.) 11 raise his right hand to be sworn in, Mr. Boice replied that he 12 refused to do so, and did not want to get involved.” 13 continued and said that he “would not testify;” he explained that 14 “Bernier and her son, Hans[,] have sued multiple members of his 15 family and his acquaintances.” 16 Appl. 4, Feb. 3, 2012, ECF No. 38.) 17 emphasizes that it “had nothing to do with [Boice’s] apparent 18 contempt for his neighbor or Bernier’s failure to timely serve a 19 subpoena on this witness well in advance of the discovery cutoff.” 20 (Id. (citation omitted).) 21 noticeably offers no explanation for delaying this deposition until 22 it became too late to enforce a subpoena.” 23 omitted).) 24 “When asked to (Id.) Boice (Def. Travelers Opp’n Ex Parte In its Opposition, Travelers The Defendant argues, “Bernier (Id. (citation Travelers observes that Plaintiff waited until January 6, 25 2012, to serve her first deposition notice. 26 following week she attempted to notice five percipient witness 27 depositions. 28 about these witnesses since before this action was even filed. (Id.) (Id. at 6.) The According to Travelers, “[Plaintiff] had known 5 11cv0078 JLS(RBB) 1 Bernier has offered absolutely no legitimate reason for her failure 2 to complete discovery in a timely manner.” (Id.) 3 C. 4 In her Reply, Bernier also asks to extend the discovery cutoff Expert Depositions 5 to depose “those expert witnesses that neither TRAVELERS NOR 6 BERNIER were able to depose in time . . . .” (Pl. Rejeanne 7 Bernier’s Reply 9, Feb. 6, 2012, ECF No. 39.) She has not 8 identified the expert witnesses she intends to depose, explained 9 why she could not take their depositions by the discovery deadline, 10 or stated how much of an extension she is requesting. Although 11 Plaintiff gives the impression that Travelers joins in her request 12 for an extension for expert depositions, notably, it opposes her 13 Application. 14 ECF No. 38.) (Def. Travelers Opp’n Ex Parte Appl. 1, Feb. 3, 2012, 15 III. 16 LEAVE TO AMEND THE COMPLAINT 17 Initially, the deadline for filing a motion to amend the 18 Complaint was July 25, 2011. 19 No. 10.) 20 (Order Issuing Second Am. Case Mgmt. Conference Order 3, ECF No. 21 18.) 22 (Case Mgmt. Conference Order 2, ECF The Court extended the deadline to October 25, 2011. More than three months after the deadline for filing a motion 23 to amend her Complaint, Bernier seeks to extend that deadline. 24 maintains that on January 26, 2012, she uncovered evidence of a 25 conversation between Hans Croteau, her son, and Travelers. 26 Rejeanne Bernier’s Reply 6, Feb. 6, 2012, ECF No. 39.) 27 also asserts that another document, identified as “TR000508” and 28 produced by Travelers on August 19, 2011, is evidence of 6 She (Pl. Bernier 11cv0078 JLS(RBB) 1 communications between Travelers and others concerning Plaintiff’s 2 2007 rain damage claim (UMZ7908). 3 she argues that Travelers did not identify this document -- an 4 October 3, 2007 letter from Bernier to Travelers -- as relating to 5 her insurance claim for rain damage until January 4, 2012. 6 Plaintiff maintains that her 2007 letter to Travelers is a basis 7 for amending her Complaint in 2012 and alleging a cause of action 8 against Travelers for failing to defend Bernier from “‘any suit for 9 the enforcement of payment under Forgery coverage.’” 10 (Id. at 3, 6.) Nevertheless, (Id.) (Id. at 6.) The Defendant points out, “[Plaintiff] has known about this 11 alleged forgery and the cross-complaint since 2008, but she never 12 tendered the claim to Travelers.” 13 Appl. 7, Feb. 3, 2012, ECF No. 38.) 14 Bernier “has no explanation for why she is claiming a right to a 15 defense duty in 2012 for a case that started in 2008 and was tried 16 in 2009.” 17 (Def. Travelers Opp’n Ex Parte The Defendant asserts that (Id. at 8.) The Plaintiff responds that document number TR000508 is 18 “crucial evidence of notations defendant made on CROTEAU’s 19 allegations that there existed a written contract, versus BERNIER’s 20 clear contradictory claim that only an oral agreement had existed 21 for what she had intended to be limited remodeling to her home.” 22 (Pl. Rejeanne Bernier’s Reply 6, Feb. 6, 2012, ECF No. 39.) 23 The essence of Bernier’s argument is that she discovered 24 evidence to support a claim that Travelers had a duty to defend the 25 superior court lawsuit her other son, Jessee Croteau, brought 26 against her. 27 notes of a 2007 conversation between her son, Jessee, and a 28 representative from Travelers were referenced by the Defendant, Plaintiff argues that before January 4, 2012, when 7 11cv0078 JLS(RBB) 1 Bernier did not know that she could assert that any written 2 agreement presented by Jessee was a forgery. 3 IV. 4 AMENDING THE CASE MANAGEMENT ORDER 5 The deadlines for completing discovery, bringing discovery 6 motions, and filing motions to amend Bernier’s Complaint have 7 passed. 8 Case Management Conference Order, extended in a Second Amended Case 9 Management Conference Order, and extended again after a January 30, 10 11 Plaintiff is asking the Court to extend dates set in the 2012 discovery hearing. This case was filed in San Diego Superior Court on October 29, 12 2010, and removed to federal court on January 14, 2011. 13 Removal 1, ECF No. 1.) The pretrial conference is upcoming; it is 14 set for June 28, 2012. (Order Issuing Second Am. Case Mgmt. 15 Conference Order 6, ECF No. 18.) 16 (Notice Rule 16(b)(4) provides that “[a] schedule may be modified only 17 for good cause and with the judge’s consent.” 18 (b)(4). 19 diligence of the party seeking the amendment. 20 may modify the pretrial schedule ‘if it cannot reasonably be met 21 despite the diligence of the party seeking the extension.’” 22 Johnson v. Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 1992) 23 (quoting Fed. R. Civ. P. 16 advisory committee’s notes (1983 24 amendment)). 25 party’s reasons for seeking modification. 26 diligent, the inquiry should end.” 27 omitted); accord Coleman v. Quaker Oats Co., 232 F.3d 1271, 1295 28 (9th Cir. 2000). Fed. R. Civ. P. 16 The rule’s “‘good cause’ standard primarily considers the The district court “[T]he focus of the inquiry is upon the moving 8 If that party was not Id. (internal citation 11cv0078 JLS(RBB) 1 Consistently, Bernier has prosecuted this lawsuit at her own 2 pace. Deadlines have not been taken seriously. For example, the 3 Court initially set August 29, 2011, as the date by which the 4 Plaintiff was to designate experts. 5 Order 2, ECF No. 10.) 6 Plaintiff’s designation was due, she filed an ex parte application 7 to extend her deadline to designate expert witnesses [ECF No. 13]. 8 The Court granted her request and extended the deadline until 9 September 9, 2011 [ECF No. 15]. (See Case Mgmt. Conference On August 30, 2011, the day after But on September 12th, Bernier 10 filed an ex parte application to extend all dates by ninety days, 11 including the date to designate experts [ECF No. 16]. 12 in large part, granted Plaintiff’s request and issued a Second 13 Amended Case Management Conference Order on September 19, 2011 [ECF 14 No. 18]. 15 The Court, On September 22, 2012, Bernier submitted another ex parte 16 application to extend time [ECF No. 20]. 17 extend time to file a motion to compel the production of documents. 18 The Defendant had responded to Plaintiff’s request for documents on 19 August 19, 2011, and the applicable Case Management Conference 20 Order required that any motion to compel be brought within thirty 21 days of the response. 22 No. 20; Case Mgmt. Conference Order 1-2, ECF No. 10.) 23 did not attempt to meet with opposing counsel and confer about her 24 discovery dispute until September 20, 2012; on that date, she 25 presented defense counsel with two “meet and confer letters, 26 totaling 30 single-spaced pages.” 27 Appl. 2, Sept. 28, 2011, ECF No. 21.) 28 Bernier had not shown good cause to grant the extension. This application was to (See Ex Parte Appl. 2, Sept. 22, 2012, ECF Plaintiff (Def. Travelers Opp’n Ex Parte 9 Travelers argued that (Id. at 11cv0078 JLS(RBB) 1 4.) 2 [ECF No. 22]. 3 The Court agreed and denied Plaintiff’s Ex Parte Application Although case management deadlines were set on March 4, 2011, 4 Bernier did not notice any deposition until January 6, 2012, less 5 than four weeks before the then-existing discovery cutoff of 6 January 31, 2012. 7 February 13, 2012. 8 compel her neighbor to give deposition testimony or depose the 9 Defendants’ experts because the discovery cutoff has passed. The Court subsequently extended this date to Nonetheless, Plaintiff finds herself unable to 10 neighbor’s deposition was scheduled for January 26, 2012. 11 Her does not explain why she did not act earlier. 12 Bernier Similarly, there is nothing in her Application or Reply that 13 demonstrates any effort to depose Defendant’s expert witnesses 14 before the February 13, 2012 discovery cutoff. 15 request for an extension of the discovery cutoff was first raised 16 in Bernier’s Reply, and courts generally decline to consider new 17 arguments and claims raised for the first time in a reply 18 memorandum. 19 (9th Cir. 1996); Sterner v. United States DEA, No. 05cv0196 20 JAH(POR), 2007 U.S. Dist. LEXIS 98103, at *47 (S.D. Cal. June 1, 21 2007). 22 Furthermore, the See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 Plaintiff served her second request for production on the last 23 available date. Travelers responded to her request for audio 24 recordings stating that it “has been unable to locate any 25 responsive recordings.” 26 Feb. 3, 2012, ECF No. 38.) 27 provide the recordings if they are located. 28 simply does not believe Travelers. (Def. Travelers Opp’n Ex Parte Appl. 3, The Defendant states that it will 10 (Id.) Plaintiff Her disbelief is not good cause 11cv0078 JLS(RBB) 1 to modify the pretrial schedule so that Bernier can file a motion 2 to compel the Defendant to produce audio recordings it cannot 3 locate. 4 Finally, Bernier’s assertion that she has discovered a basis 5 to amend her Complaint to assert a new claim against Travelers is 6 not persuasive. 7 diligently. 8 his counterclaim against her, were tried in 2009 before San Diego 9 Superior Court Judge William R. Nevitt. Here, too, she has not established that she acted The lawsuit she brought against her son Jessee, and (See Mem. P. & A. Supp. Ex 10 Parte Appl. 21, Jan. 31, 2012, ECF No. 37.) 11 for filing a motion to amend the pleadings was October 25, 2011. 12 (Order Issuing Second Case Mgmt. Conference Order 3, ECF No. 18.) 13 Plaintiff’s current arguments to add an allegedly newly discovered 14 claim come too late and are not credible. 15 16 The extended deadline CONCLUSION The history of this litigation and Bernier’s actions 17 underlying the relief she seeks demonstrate that Plaintiff has not 18 been diligent. 19 deadline and shorten time so that she may (1) bring a motion for 20 contempt and to compel testimony from her neighbor, a third-party 21 witness, (2) seek to compel the production of audio recordings and 22 “communications,” (3) depose expert witnesses, and (4) extend the Her Ex Parte Application to extend the discovery 23 24 25 26 27 28 11 11cv0078 JLS(RBB) 1 date by which she can file a motion to amend her Complaint to 2 assert a claim for failing to defend the superior court lawsuit 3 brought against her in 2008 and tried in 2009 is DENIED. 4 5 DATED: March 19, 2012 6 7 8 ____________________________ Ruben B. Brooks, Magistrate Judge United States District Court cc: Judge Sammartino All Parties of Record 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\BROOKS\CASES\BERNIER0078\OrderDenying1-31-ExParte.wpd 12 11cv0078 JLS(RBB)
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