-CWH Argawal et al v. Oregon Mutual Insurance Company, No. 2:2011cv01384 - Document 79 (D. Nev. 2013)
Court Description: ORDER Denying 63 Motion to Compel. Denying 71 Motion for Sanctions. Affidavit due by 1/25/2013. Signed by Magistrate Judge Carl W. Hoffman on 1/18/2013. (Copies have been distributed pursuant to the NEF - SLR)
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-CWH Argawal et al v. Oregon Mutual Insurance Company Doc. 79 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 ARVIND and ALKA AGARWAL, 10 11 12 13 ) ) Plaintiffs, ) ) vs. ) ) OREGON MUTUAL INSURANCE CO., ) ) Defendant. ) __________________________________________) Case No. 2:11-cv-01384-LDG-CWH ORDER 14 This matter is before the Court on Plaintiffs’ Omnibus Discovery Motion (#63), filed 15 September 21, 2012; Defendant’s Response (#74), filed October 8, 2012; and Plaintiffs’ Reply (#75), 16 filed October 15, 2012. The Court will also consider Plaintiffs’ Motion for Sanctions (#71), filed 17 October 3, 2012; Defendant’s Response (#76), filed October 19, 2012; and Plaintiffs’ Reply (#78), 18 filed October 26, 2012. 19 BACKGROUND 20 This case was originally filed California Superior Court on March 21, 2011. It was removed 21 to the United States District Court for the Northern District of California on May 13, 2011. Shortly 22 thereafter, on August 26, 2011, the case transferred to this Court. (#28). The case involves an 23 insurance claim made by Plaintiffs to their insurer, Defendant Oregon Mutual, for theft and vandalism 24 loss at an apartment building owned by Plaintiffs. Plaintiffs seek declarative judgment that they are 25 entitled to payment under the terms of the policy issued by Defendant Oregon Mutual. Plaintiffs also 26 seeks damages, including punitive damages, for (1) breach of contract, (2) breach of the implied 27 covenant of good faith and fair dealing, and (3) bad faith. 28 Upon transfer to this Court, the undersigned scheduled a telephonic status conference. (#37). Dockets.Justia.com 1 At the hearing, the parties were instructed to file a joint discovery plan and Plaintiffs’ counsel was 2 instructed to file the appropriate pro hac vice paperwork. See Mins. of Proceedings (#39). The 3 parties filed their proposed discovery plan on October 7, 2011, which was approved by the Court.1 4 (#41). The parties filed a stipulation to extend discovery on January 25, 2012, which was approved 5 and entered on January 26, 2012. As a result, discovery was scheduled to close on August 15, 2012, 6 with dispositive motions due by September 10, 2012 and the joint pretrial order due by September 28, 7 2012. (#50). 8 After the parties request for an extension of discovery was approved, the Court did not hear 9 from the parties until they filed their interim status report on July 6, 2012. (#51). The parties did not 10 identify any discovery disputes in the interim status report. The next filing on the docket is 11 Defendant’s motion for summary judgment (#52), filed August 3, 2012. Plaintiffs filed their response 12 on August 28, 2012. (#58). The response was filed after the close of discovery and, in part, requests 13 the Court to exclude certain evidence from consideration because it was not produced during 14 discovery. See Pls’ Resp. (#58) at 2:19-22; 8:1-4. Plaintiffs’ request for exclusion is the first time the 15 Court has been informed of any type of discovery dispute. In reply, Defendant Oregon Mutual 16 asserted that the discovery abuse allegations were unsupported and unexplained. To the extent there 17 were potentially valid discovery disputes, Oregon Mutual cited several cases standing for the 18 proposition that a party ignores available discovery remedies at its peril. See Def.’s Reply (#59) at 19 3:13 - 4:3. Oregon Mutual also noted that all documents submitted in support of its motion for 20 summary judgment were produced during discovery. Id. at n. 3. 21 On September 21, 2012, Plaintiffs filed the motion currently under consideration and styled it 22 an “omnibus discovery motion.” (#63). In it, Plaintiffs accuse Defendant of failing to “fulfill [its] 23 most basic discovery obligations” by not producing several types of documents and, as near as the 24 Court can tell, producing an unprepared Rule 30(b)(6) deponent. Plaintiffs request an order 25 compelling responses to the several different categories of discovery requests, including the 26 27 1 By virtue of the scheduling order, discovery was set to close on May 4, 2012 with dispositive motions 28 due by June 3, 2012 and the proposed joint pretrial order due by July 5, 2012. 2 1 following: 2 1) production of emails pursuant to: Rule 34 requests 3, 6, 7, and 10; notice of deposition categories 4, 6, and 12; Rule 26 expert disclosure; and Fed. R. Evid. 612; 3 4 2) production of entire claims file pursuant to: request to produce category 29; third set of request to produce under categories 52 and 53; 30(b)(6) notice of deposition; and Rule 26 expert disclosure; 5 6 7 8 9 10 11 3) production of statement pursuant to requests to produce categories 1, 2, 17, 18, 19, 20, 21, 22, 23, and 24 as well as pursuant to notices of deposition; 4) production of communications with witnesses whose statements were part of Defendant’s motion for summary judgment pursuant to request to produce categories 17, 18, 19, 20, 21, 22, 23, and 24; 5) production of claims manual pursuant to: request to produce category 14; third set of requests for production categories 54 and 55; notice of deposition of Jerry Masonheimer; and notice of 30(b)(6) deposition; 6) compel production of writings concerning site inspection pursuant to request for production category 35 and second requests for production categories 47 -51; 12 13 7) compel completion of deposition of Jerry Masonheimer with production of documents pursuant to categories 1, 2, 3, 11, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 29, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 47, 48, 50, 51, and 54; and 14 15 16 8) completion of deposition of Thomas Anderson with production of documents pursuant to categories 1, 2, 9, 11, 12, 16, 17,18, 19, 20, 21, 22, 25, 26, 27, 29, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 47, 48, 50, 51, 53 and 54 and as reviewed by the witness pursuant to FRE Rule 612. 17 Plaintiffs also request that the Court exclude evidence and argument for those matters on which 18 Defendant’s Rule 30(b)(6) deponent was not adequately prepared to respond, and that the Court 19 exclude all expert opinions from Defendant’s retained experts for failure to comply with the expert 20 disclosure requirements. 21 In response, Defendant identifies several procedural and substantive flaws that it argues 22 compel denial of the Plaintiffs’ “omnibus” motion. First, Defendant argues that the entire motion is 23 untimely as it was filed after the close of discovery, after the dispositive motion deadline, and after 24 Defendant’s summary judgment was fully briefed. Second, Defendant argues that Plaintiffs’ counsel 25 failed to meet and confer prior to filing the motion in violation of Fed. R. Civ. P. 37(a)(1) and Local 26 Rule (“LR”) 26-7(b). Third, Defendant argues that the “omnibus” motion does not comply with LR 27 26-7(a) as it does not “set forth in full the text of the discovery originally sought and the response 28 thereto, if any.” Fourth, Defendant argues that the motion is so vague that it is “indecipherable” and 3 1 contains no demonstration of any actual or substantial prejudice. Finally, Defendant does its best to 2 articulate a substantive response and concludes that Plaintiffs are not entitled to the relief requested. 3 Plaintiffs replied: (1) that the motion was timely; (2) that he made good faith efforts to meet and 4 confer to; and (3) that he is entitled to the relief he seeks. 5 DISCUSSION 6 A. Plaintiffs’ Motion to Compel 7 As noted by Defendant, it appears Plaintiffs have filed this “omnibus” motion in an attempt to 8 vindicate each and every perceived slight that they believe occurred over the course of this litigation. 9 The motion shows a casual and consistent disregard for the Federal Rules, Local Rules, and discovery 10 process in general. As the Ninth Circuit has noted, “[m]uch ink has been spilled on the costs of the 11 abuse of the discovery process.” See Burlington Northern & Santa Fey Ry. Co. v. United States, 408 12 F.3d 1142, 1148 (9th Cir. 2005). The motion falls well short of meeting the minimal procedural 13 requirements necessary for consideration and will be denied. 14 1. Local Rule 7-2(b) 15 The Court finds that Plaintiffs have failed to file points and authorities in support of their 16 motion. The failure to do so “constitutes a consent to the denial of the motion.” See LR 7-2(b). 17 Plaintiffs seeks a broad order compelling production or further responses to discovery from 18 Defendant. At no point in the body of his motion do Plaintiffs cite the Rule under which they are 19 pursuing for purposes of this motion. In the conclusion of the motion, Plaintiffs’ counsel cites Rule 20 37(a)(3)A), (B), (4), and (c), but does so without setting forth the standard for consideration under 21 any of the rules or tying his specific requests to a specific rule. The burden is Plaintiffs to 22 demonstrate they are entitled to the relief they seek. This starts with citing the appropriate rule and 23 linking the specific relief to the rule under which it is sought. That was not done here. 24 2. Local Rule 26-7(a) 25 Plaintiffs fail to set forth in their motion “the text of the discovery originally sought and the 26 responses thereto, if any.” See LR 26-7(a). Plaintiffs have simply attached all of his prior discovery 27 requests as exhibits. For the most part, Plaintiffs do not even bother to link their arguments to 28 specific discovery requests and make no effort to address the several objections served in response to 4 1 their various discovery requests. Essentially, Plaintiffs have just dumped all of the prior discovery 2 into this motion with the expectation that the Court sift and root for issues. With all due respect, 3 “judges are not like pigs, hunting for truffles buried in briefs” and it is not the responsibility of the 4 judiciary “to sift through scattered papers in order to manufacture arguments for parties.” See 5 Greenly v. Sara Lee Corp., 2008 WL 1925230 (E.D. Cal.) (citing Greenwood v. Fed. Aviation 6 Admin., 28 F.3d 971, 977 (1994)). 7 3. Meet and Confer 8 To the extent Plaintiffs are seeking relief under Rule 37(a), the rule requires that a party 9 seeking to compel responses to discovery requests “must include a certification that the movant has in 10 good faith conferred or attempted to confer with the person or party failing to make disclosure or 11 discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Additionally, LR 12 26-7(b) provides that “[d]iscovery motions will not be considered unless a statement of the movant is 13 attached thereto certifying that, after personal consultation and sincere effort to do so, the parties have 14 been unable to resolve the matter without Court action.” 15 Both the meet and confer requirement of Rule 37 and the personal consultation requirement of 16 LR 26-7(b) serve important purposes. Compliance is required “to lessen the burden on the court and 17 reduce the unnecessary expenditure of resources by litigants, through the promotion of informal, 18 extrajudicial resolution of discovery disputes.” Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D. 19 Nev. 1993). The consultation obligation “promote[s] a frank exchange between counsel to resolve 20 issues by agreement or to at least narrow and focus matters in controversy before judicial resolution is 21 sought.” Id. In order to serve its purpose, parties must “treat the informal negotiation process as a 22 substitute for, and not simply a formal prerequisite to, judicial review of discovery disputes.” Id. To 23 do so, 24 [t]he parties must present to each other the merits of their respective positions with the same candor, specificity, and support during the informal negotiations as during the briefing of discovery motions. Only after the cards have been laid on the table, and a party has meaningfully assessed the relative strengths and weaknesses of its position in light of all available information, can there be a “sincere effort” to resolve the matter. 25 26 27 Id. 28 5 1 In Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D. Nev. 1996), the Court 2 identified two prongs to Rule 37's meet and confer requirement. First, the moving party must provide a 3 certification from counsel which “accurately and specifically conveys to the court who, where, how, and 4 when the respective parties attempted to personally resolve the discovery dispute.” Shuffle Master, 170 5 F.R.D. at 170. Second, the moving party must actually confer or attempt to confer in good faith. Id. 6 The moving party must move beyond cursory statements and “must adequately set forth in the motion 7 essential facts sufficient to enable the court to pass a preliminary judgment on the adequacy and sincerity 8 of the good faith conferment between the parties.” Id. at 171. A good faith attempt requires more than 9 the “the perfunctory parroting of statutory language,” it requires a “genuine attempt to resolve the 10 discovery dispute through non judicial means.” Id. Doing so accomplishes the underlying policy of 11 Rule 37(a)(1) and LR 26-7(b). 12 Absent compelling circumstances not present here, the mere exchange of letters has long been 13 seen as insufficient to satisfy the “personal consultation” requirement. See e.g., Hunter v. Moran, 128 14 F.R.D. 115 (D. Nev. 1989). Shuffle Master made clear that the mere exchange of letters is also 15 insufficient to demonstrate a good faith effort to meet and confer under Rule 37. Shuffle Master, 170 16 F.R.D. at 172. Simply put, the exchange of letters, by itself, is an inadequate means through which 17 counsel may attempt to confer or personally consult. To be sure, the exchange of letters or emails may 18 serve to narrow or inform the issues prior to personal consultation, but both Rule 37(a)(1) and LR 2619 7(b) require more. 20 Here, Plaintiffs’ counsel’s effort to engage in meaningful discussions to resolve these discovery 21 disputes was inadequate. Plaintiffs’ counsel has not sufficiently demonstrated that the parties engaged in 22 the type of meet and confer process or personal consultation contemplated by the rules. Instead, it 23 appears there was nothing more than an exchange of terse letters and emails. Nowhere is it apparent in 24 the motion that counsel made the requisite good faith effort at personal consultation. 25 4. Timeliness of Motion 26 A motion to compel filed during the discovery period will rarely be considered untimely. Absent 27 unusual circumstances, however, it should be filed before the scheduled date for dispositive motions. 28 Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D.Nev.1999). See also Thurston v. City of North Las 6 1 Vegas, 2011 WL 3841110, *1 (D.Nev.2011) and Hall v. Schumacher, 2011 WL 4458845 (D.Nev.2011). 2 A litigant may not delay a motion to compel with impunity. Gault, 184 F.R.D. at 622. Plaintiffs do not 3 contest that the motion was filed after the close of discovery, after the dispositive motions deadline, and 4 after the summary judgment was fully briefed. Rather, Plaintiffs insist that there are unusual 5 circumstances that make the timing of the motion to compel reasonable. 6 Plaintiffs argue that the timing of the motion is reasonable because there is no established 7 deadline for the filing of discovery motions. It is true, that neither the federal nor local rules specify a 8 timeline for filing of discovery motions, but Gault and subsequent cases address this issue and set forth 9 the standard for consideration of discovery motions filed after the discovery cutoff date. The Court has 10 looked at each of the reasons advanced in support of the untimely filing and finds that there are no 11 unusual circumstances here that would cure the late filing. 12 Plaintiffs appear to argue that the prior extensions of discovery or the undersigned’s order (#67) 13 addressing the timing for filing the joint pretrial order somehow excuse the late filing. The Court rejects 14 this argument. The prior discovery extensions actually benefit Plaintiffs as they extend the time to file 15 discovery motions. The granting of the parties stipulation to extend the date to file the joint pretrial 16 order bears no relation to the timeliness of a discovery motion. Indeed, as was noted in the order (#67), 17 the extension of the deadline to file the joint pretrial order after a dispositive motion is filed is an 18 operation of this Court’s local rules. 19 Plaintiffs also argue that their discovery requests were made in sufficient time to allow the 20 opposing party to respond before discovery closed. Even assuming this is true, it is unrelated to the 21 question of the timing of this discovery motion. Indeed, as near as the Court can tell, all of Plaintiffs’ 22 discovery was responded to prior to the close of discovery and prior to the filing of the motion for 23 summary judgment. To the extent Plaintiffs are seeking relief for failure to comply with Rule 30 24 deposition notices, Defendant served objections to the notices well before the depositions occurred. As 25 such, Plaintiffs’ counsel’s decision to delay filing this motion until after the discovery cutoff, after the 26 dispositive motions deadline, after the summary judgment briefing, and approximately sixty (60) days 27 28 7 1 after the depositions concluded was not reasonable.2 2 Finally, Plaintiffs appear to argue that the Court should take into account Defendant’s production 3 of documents after the discovery deadline in the determination of timeliness on Plaintiffs’ motion. The 4 production of discovery after the discovery cutoff date does not cure the untimely nature of this 5 discovery motion. It is not clear how any additional disclosure would cure the untimely nature of this 6 discovery motion. Rule 26(e)(1)(A) provides: 7 9 A party who has . . . responded to an interrogatory, request for production, or request for admission–must supplement or correct its disclosure or response . . . in a timely manner if the party learns that in some material respect the disclosure is incomplete or incorrect or if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. 10 Rule 26(e) creates a duty to supplement, not a right. See Luke v. Family Care and Urgent 8 11 Medical Clinics, 323 Fed. Appx. 496, 500 (9th Cir. 2009) (holding district court did not abuse its 12 discretion in excluding untimely expert declarations). Rule 26(e) does not create a “loophole” for a party 13 to use to its advantage after the deadline has passed. Id. The Advisory Committee Notes on the 1993 14 Amendment to rule 26(e) state, “[s]upplementation should be made with special promptness as the trial 15 date approaches,” suggesting that the duty continues up to the time of trial. The failure to supplement 16 under Rule 26(e) may be sanctionable under Rule 37(c). Nevertheless, Plaintiffs have not briefed the 17 issue and have not shown the initial responses were incomplete or incorrect. 18 Ultimately, the Court does not believe the timing of the motion was “tactically inspired.” But the 19 motion does fall short of several procedural requirements and is untimely. 20 B. Plaintiffs’ Motion for Sanctions 21 Shortly after filing their “omnibus” discovery motion, Plaintiffs filed a motion for sanctions 22 (#71), requesting that the Court award monetary sanctions in conjunction with the discovery motion 23 under Rule 37. Plaintiffs also request that the Court enter an order pursuant to 28 U.S.C. § 1927 or the 24 25 2 It also appears that Plaintiff is arguing that he was precluded from bringing this discovery motion until after he received a transcript of the depositions. The Court disagrees. Defendant filed his objections to the 26 deposition notices prior to the depositions taking place and the failure, if any, to adequately prepare or participate 27 in the deposition was known at the time of the deposition. There was no need to wait until the transcripts were received to file this motion. Additionally, the transcripts were received prior to the dispositive motions deadline 28 and Plaintiff still delayed filing of the motion. 8 1 Court’s inherent authority awarding fees and expenses incurred throughout the litigation for Defendant’s 2 alleged failure to fulfill the most “basic obligations of a litigant” throughout discovery. Plaintiffs are 3 seeking in excess of $20,000.00 in fees and expenses for the alleged misconduct. In response, 4 Defendant’s argue that sanctions under Rule 37 would only be available in the event Plaintiffs’ omnibus 5 motion were granted in full or in part. Defendant further argues that Plaintiffs have not made the 6 necessary showing under section 1927, or to invoke the Court’s inherent authority, to justify the 7 requested sanctions. 8 A. Section 1927 9 Pursuant to 28 U.S.C. § 1927, “[a]ny attorney or other person admitted to conduct cases in any 10 court of the United States . . . who so multiplies the proceedings in any case unreasonably and 11 vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ 12 fees reasonably incurred because of such conduct.” Sanctions under section 1927 “must be supported by 13 a finding of subjective bad faith.” In re Keegan Mgmt., Sec. Litig., 78 F.3d 431, 436 (9th Cir. 1996) 14 (citation omitted). “Bad faith is present when an attorney knowingly or recklessly raises a frivolous 15 argument, or argues a meritorious claim for the purpose of harassing an opponent.” Id. Plaintiffs have 16 failed to demonstrate how any of the conduct of which is complains meets the test for subjective bad 17 faith. Thus, the Court declines to consider any sanctions under section 1927. 18 B. Inherent Authority 19 Citing Chambers v. NASCO, Inc., 501 U.S. 32 (1991), Plaintiffs also ask the Court to exercise its 20 inherent authority and sanction Defendant for its alleged discovery misconduct. The Court has the 21 inherent power to levy sanctions for abusive litigation tactics. Roadway Express, Inc. v. Piper, 447 U.S. 22 752, 765-66 (1980). This inherent authority to issue sanctions was reiterated in Chambers v. NASCO, 23 Inc., 501 U.S. 32 (1991) and extends “to a full range of litigation abuses.” Fink v. Gomez, 239 F.3d 989, 24 992 (9th Cir. 2001) (quoting Chambers, 501 U.S. at 46-47). Nevertheless, “[b]ecause of their very 25 potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44. 26 “When there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the 27 [Federal] Rules, the court ordinarily should rely on the Rules rather than the inherent power.” Id. at 50. 28 Imposition of sanctions using the court’s inherent powers must “be preceded by a finding of bad faith, or 9 1 conduct tantamount to bad faith.” Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001) (citing Fink, 2 239 F.3d at 993). As previously held, Plaintiffs have failed to demonstrate that Defendant has acted in 3 bad faith. Consequently, the Court declines to exercise its inherent authority to issue sanctions. 4 C. Fees under Rule 37 5 Finally, Plaintiffs request that he is entitled to expenses and fees under Rule 37(a)(5) for having 6 to file their motion to compel. The Court agrees that the provisions of Rule 37(a)(5) apply to Plaintiffs’ 7 motion to compel (#63), which, for the reasons stated herein, is denied in its entirety. Consequently, it is 8 Defendant, not Plaintiffs, who is entitled to pursue an award of expenses and fees. See Fed. R. Civ. P. 9 37(a)(5)(B) (if a motion to compel discovery is denied “the court ... must, after giving an opportunity to 10 be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who 11 opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s 12 fees.”). Thus, Defendant is invited to submit an affidavit of reasonable expenses, including attorney 13 fees, incurred in opposing Plaintiffs’ motion. The affidavit is due on or before January 25, 2013. 14 Failure to submit the affidavit will result in no fees or expenses being awarded. 15 Based on the foregoing and good cause appearing therefore, 16 IT IS HEREBY ORDERED that Plaintiffs’ Omnibus Discovery Motion (#63) is denied. 17 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Sanctions (#71) is denied. 18 IT IS FURTHER ORDERED that pursuant to Rule 37(a)(5)(B), Defendant may submit an 19 affidavit of expenses, including attorney fees, incurred in opposing Plaintiffs’ motion (#63). The 20 affidavit must be filed by 3:00 PM on Friday, January 25, 2013. If filed, Plaintiffs shall have the 21 normal briefing period to file any response. 22 DATED this 18th day of January, 2013. 23 24 ______________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 25 26 27 28 10
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