Opinion
No. CV-13-02317-PHX-ESW
07-03-2018
Lynne Korff, Plaintiff, v. City of Phoenix, et al., Defendants.
ORDER
At the February 21, 2018 status conference, Defendants requested that the Court revisit two motions (Docs. 278, 298) that the Court denied as moot when it entered summary judgment in favor of Defendants. (Doc. 304). The Court affirms the denial of Defendants' "Joint Motion for Leave to Respond to Plaintiff's Notice of Appointment of Personal Representative and Plaintiff's Amended/Supplemental Response to Defendants' Statement of Facts (Doc. 296)" (Doc. 298) on mootness grounds.
The Court will vacate the denial of Defendants' "Joint Motion to Quash Expert Subpoenas and Request for Attorneys' Fees" (Doc. 278). Plaintiff does not dispute that Defendants disclosed their expert witnesses on January 12, 2015. (Docs. 112, 113). The discovery deadline expired on June 5, 2015. (Doc. 210). It is undisputed that on October 27, 2015, Plaintiff issued subpoenas duces tecum on Defendants' expert witnesses Michael Kuzel, Charles Huth, Jeff Smith, and Pamela E. Potter, Ph.D. (Doc. 278 at 3; Doc. 281 at 1). Because the Court finds that these subpoenas were untimely issued, the Court grants Defendants' request to quash them.
The Court, however, extended the discovery deadline for the limited purpose of allowing the parties to complete certain depositions. (Docs. 239, 257). September 30, 2015 was the deadline for completing the final deposition. (Doc. 257). --------
In their Motion (Doc. 278 at 9-10), Defendants request an award of attorneys' fees under Federal Rule of Civil Procedure 16(f). The Court has broad discretion to impose sanctions under Rule 16(f). Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1397 (9th Cir. 1993). "The imposition of sanctions under Rule 16(f) does not require a finding of bad faith; rather, a negligent failure to comply with Rule 16 can justify sanctions." Arambula v. City of Phoenix, No. CV 09-2103-PHX-NVW, 2010 WL 11437113, at *1 (D. Ariz. June 22, 2010). Yet, "[c]ourts do not invoke Rule 16(f) to enforce their orders for sport." U.S. Bank N.A. v. SFR Investments Pool 1, LLC, Case No. 2:16-cv-00576-GMN-NJK, 2018 WL 701816, at *3 (D. Nev. Feb. 2, 2018) (citing Dela Rosa v. Scottsdale Mem'l Health Sys., Inc., 136 F.3d 1241, 1244 (9th Cir. 1988) ("We prefer not to spend time lecturing and cajoling violators into compliance through the imposition of sanctions."). The Court finds that it would be unjust to grant Defendants' request for attorneys' fees. Plaintiff's issuance of the subpoenas at issue did not cause delay in the case. See Martin Family Trust v. Heco/Nostalgia Enters. Co., 186 F.R.D. 601, 603 (E.D. Cal. 1999) (noting that violations of Rule 16 scheduling orders "involve a matter most critical to the court itself: management of its docket and the avoidance of unnecessary delays in the administration of its cases"). Further, the docket does not reflect that Defendants obtained leave of Court before filing their Motion (Doc. 278) as required by the Court's Scheduling Order. (Doc. 34 at 3) ("The parties shall not file written discovery motions without leave of Court."). The Court denies Defendants' request for attorneys' fees as set forth in their Motion (Doc. 278).
The Court will set a Final Pretrial Conference by separate order.
Based on the foregoing,
IT IS ORDERED affirming the denial of Defendants' "Joint Motion for Leave to Respond to Plaintiff's Notice of Appointment of Personal Representative and Plaintiff's Amended/Supplemental Response to Defendants' Statement of Facts (Doc. 296)" (Doc. 298).
IT IS FURTHER ORDERED vacating the denial of Defendants' "Joint Motion to Quash Expert Subpoenas and Request for Attorneys' Fees" (Doc. 278) as set forth in the Court's May 6, 2016 Order (Doc. 304).
IT IS FURTHER ORDERED granting in part and denying in part Defendants' "Joint Motion to Quash Expert Subpoenas and Request for Attorneys' Fees" (Doc. 278) as set forth herein.
IT IS FURTHER ORDERED quashing the subpoenas duces tecum served on Defendants' expert witnesses Michael Kuzel, Charles Huth, Jeff Smith, and Pamela E. Potter, Ph.D.
IT IS FURTHER ORDERED directing the parties to file a joint status report no later than July 24, 2018 advising the Court as to (i) whether the parties have participated in private mediation and (ii) whether the parties request the matter to be referred to a Magistrate Judge for a settlement conference.
Dated this 3rd day of July, 2018.
/s/_________
Eileen S. Willett
United States Magistrate Judge