Opinion
Case No. 2:17-CV-7722-DMG (SKx)
2020-04-27
Terrence M. WYLES, Plaintiff, v. Allen Zachary SUSSMAN, et al., Defendants.
Samuel M. Ventola, Pro Hac Vice, Ventola Law Firm, Denver, CO, Thomas Henry Scully, Law Office of Thomas Scully, Culver City, CA, for Plaintiff. Thomas D. Brady, Simi Valley, CA, pro se. Michael Frederick Klein, Michael J. Hickman, Musick Peeler and Garrett LLP, San Diego, CA, Stephen L. Cope, Musick Peeler & Garrett, LLP, Los Angeles, CA, for Defendants.
Samuel M. Ventola, Pro Hac Vice, Ventola Law Firm, Denver, CO, Thomas Henry Scully, Law Office of Thomas Scully, Culver City, CA, for Plaintiff.
Thomas D. Brady, Simi Valley, CA, pro se.
Michael Frederick Klein, Michael J. Hickman, Musick Peeler and Garrett LLP, San Diego, CA, Stephen L. Cope, Musick Peeler & Garrett, LLP, Los Angeles, CA, for Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL
STEVE KIM, U.S. MAGISTRATE JUDGE I.
INTRODUCTION
Plaintiff Terrence Wyles moves to compel discovery from Defendant Thomas Brady in two respects. (ECF 240). First, he wants Defendant Brady, who is unrepresented, to sit for a second deposition to answer questions he refused to answer at his first one. Second, he wants either Defendant Brady's compelled responses to two sets of unanswered requests for admissions or the matters in those requests to be ordered admitted because of his failure to respond. The problem with Plaintiff's motion is the same one that has plagued this case from the outset: the parties are engaged in what has now become a two-year war of attrition rather than a good-faith effort to litigate their dispute. They have skirted or ignored directives and deadlines in the District Court's scheduling orders. Defendant Brady even asks for up to 60 days to oppose Plaintiff's motion to compel—with an extension request that was itself already late. (ECF 245). It is impossible to know who bears more of the blame for the dilatory conduct of this litigation, for there is plenty to be shared between the parties. But it doesn't matter anymore. Fact discovery is closed. The motion cutoff has passed. Nothing remains to be done other than to prepare the case for trial. Plaintiff's motion is denied.
II.
BACKGROUND
This case, opened more than two years ago in October 2017, is a malicious civil prosecution action. Plaintiff alleges that Defendant Brady and other defendants from his former company (all of whom have now been dismissed from the case except for James Hunt) retaliated against him for whistleblower activities by suing him in a lawsuit that was ultimately terminated in Plaintiff's favor. Plaintiff served Defendant Brady with the original complaint in June 2018, which Defendant did not answer until two months later. (ECF 70, 114). After opposing motions to dismiss or strike by other defendants with mixed success, Plaintiff filed a first amended complaint in January 2019. (ECF 140, 142). Defendant Brady himself successfully dismissed part of the first amended complaint in May 2019. (ECF 145, 156). He then answered the surviving claims, including the main one for malicious prosecution, and counterclaimed against Plaintiff in June 2019. (ECF 166). By this time, the District Court had set pretrial deadlines binding Plaintiff and Defendant Brady with a fact discovery cutoff of December 10, 2019. (ECF 158-1). Yet in the intervening six months, neither Plaintiff nor Defendant Brady conducted productive discovery.
Instead, the parties churned wasteful motion practice for months while Plaintiff struggled to serve other defendants living abroad. For instance, Plaintiff successfully moved to strike Defendant Brady's counterclaims in July 2019, but only because Defendant never opposed. (ECF 169, 181). Defendant Brady then unsuccessfully moved to stay the entire case, which Plaintiff opposed late, followed by a tardy reply from Defendant. (ECF 187, 197). Afterwards, Plaintiff sought excessive attorney's fees for prevailing in his unopposed motion to strike Defendant's counterclaims. (ECF 211). The District Court granted the fee motion only after reducing counsel's billed hours and hourly rate. (ECF 229). Meanwhile, Plaintiff had failed to serve several foreign defendants but tried to secure entry of defaults against them, including Defendant Hunt. (ECF 79-83, 97). The District Court denied those applications since none of the foreign defendants had been served. (ECF 116). Shortly after, Plaintiff sought default against these same foreign defendants again—still without having properly served them. (ECF 138). When rebuffed, Plaintiff asked for limited discovery to locate those defendants, which the District Court granted in May 2019. (ECF 157, 160, 162). But after three months, Plaintiff had not found them and so—in response to the District Court's order to show cause—voluntarily dismissed the foreign defendants in August 2019. (ECF 192, 197). He only successfully brought one of them, Defendant Hunt, back into the case in December 2019, although Defendant Hunt has yet to answer or respond to the first amended complaint. (ECF 212, 217, 224-25, 242).
What is more, a mere eight days before the December 10 discovery cutoff, Plaintiff moved for a protective order blocking his deposition scheduled to take place just three days later on December 5. (ECF 219). But the District Court's scheduling order—in place since early May 2019—made clear that all depositions had to "be scheduled to commence sufficiently in advance of the discovery cutoff date to permit their completion and to permit the deposing party enough time to bring any discovery motions concerning the deposition prior to the cutoff date." (ECF 158 at 2). That order required any discovery motion to "be filed, served and calendared sufficiently in advance of the discovery cutoff date to permit the responses to be obtained before that date, if the motion is granted." (Id. ). Even so, the Court ruled on the merits of Plaintiff's untimely motion—the day after it was filed—because of the imminent discovery cutoff. (ECF 221). It issued a protective order that enabled Plaintiff's deposition to happen before the discovery cutoff or, if that couldn't happen, directed them to seek relief with the District Court. (Id. ). The Court also reminded the parties about the scheduling order's timing requirements for both the conduct of discovery and discovery motions. (Id. at 1).
That reminder evidently fell on deaf ears. When the Court ruled on Plaintiff's motion for a protective order, seven days still remained until the December 10 discovery cutoff. Still, Plaintiff waited until the last day before the cutoff to file a motion to extend fact discovery. (ECF 223). That not only violated the District Court's standing order requiring extension requests to be filed no fewer than five days before any scheduled deadline. (ECF 4, 228). It also prompted the District Court to admonish the parties that because the case had "lingered for more than two years," it was "far past time" for the case to "move on." (ECF 228 at 1). At the same time, though, Defendant Brady never bothered to oppose Plaintiff's extension request. And Defendant Hunt had only just been reinserted into the case. So the District Court extended the discovery cutoff to April 10, 2020—but "as to Defendant Hunt only." (Id. ). Yet rather than complete discovery with Defendant Hunt, Plaintiff remained focused on his unfinished discovery with Defendant Brady.
The record now makes clear why. Plaintiff did not begin negotiating a date for Defendant Brady's deposition until around Thanksgiving 2019. (ECF 240-3 at 1-3). With just about three weeks remaining before the December 10 cutoff, there was no time left to resolve discovery disputes by motion. And the deposition dates that the parties haphazardly agreed to were all after the discovery cutoff anyway. (Id. ). What is more, Plaintiff did not serve his first set of requests for admissions until December 2, 2019, which gave Defendant less than the 30 days he ordinarily would have had to answer and to also meet the cutoff. (ECF 240 at 11). Not to be outdone, Defendant Brady reneged on his promise to appear for his deposition after the cutoff date, even as he showed up to question Plaintiff at his. (ECF 240-2 at 2). And Defendant Brady never responded—much less objected—to Plaintiff's requests for admissions. (ECF 240 at 11). Nor did he seek a protective order from the Court relieving him of the obligation to respond to those requests. But Plaintiff filed nothing with the Court, either.
Plaintiff saw his chance for a discovery do-over with Defendant Brady when the District Court extended the discovery cutoff to April 10, 2020—even though the District Court had limited that extension to Defendant Hunt. Plaintiff kicked it off with a second set of requests for admissions served on Defendant Brady in January 2020. But to make it seem like discovery about Defendant Hunt, Plaintiff just added or substituted the name "James Hunt" in requests that were otherwise materially identical to those in the first set. (ECF 240-1 at 6-12). Not as if that helped: Defendant Brady ignored this set of requests just as he had the first. Plaintiff also managed to depose Defendant Brady in February 2020. (Id. at 3-6). Yet when asked questions about topics unrelated to James Hunt, Defendant Brady refused to answer. (Id. ). This motion to compel soon followed. But as he had done before, Plaintiff filed this discovery motion late on April 1, 2020—only nine days before the extended discovery cutoff.
III.
DISCUSSION
As should be evident now, Plaintiff's motion to compel a second deposition of Defendant Brady is untimely. Although neither the Federal nor Local Rules sets a deadline to file motions to compel, "broad discretion is vested in the trial court to permit or deny discovery." Hallett v. Morgan , 296 F.3d 732, 751 (9th Cir. 2002) (cleaned up). So "[p]arties may not unduly delay in filing motions to compel no matter their merit." KST Data, Inc. v. DXC Tech. Co. , 344 F. Supp. 3d 1132, 1136 n.1 (C.D. Cal. 2018). When Plaintiff failed to schedule Defendant Brady's deposition—with time left to resolve any dispute—before the December 10 cutoff, he lost his ability to compel that deposition once Defendant refused. The District Court's scheduling order cannot be clearer on timing: Depositions "shall be scheduled to commence sufficiently in advance of the discovery cutoff date to permit their completion and to permit the deposing party enough time to bring any discovery motions concerning the deposition prior to the cutoff date." (ECF 158 at 2). That is why the order directs that "[a]ny motion challenging the adequacy of responses to discovery must be filed, served and calendared sufficiently in advance of the discovery cutoff date to permit the responses to be obtained before that date, if the motion is granted." (Id. ).
So by waiting until late November 2019 to even begin negotiating Defendant Brady's deposition date, Plaintiff forfeited his ability to obtain a discovery remedy in time. Even after he (questionably) seized a second chance to depose Defendant Brady, Plaintiff filed this motion to compel too late—nine days before the cutoff, again in violation of the District Court's scheduling order. "Untimeliness is sufficient ground, standing alone, to deny a discovery motion." Williams v. Las Vegas Metro. Police Dep't , 2015 WL 3489553, at *1 (D. Nev. June 3, 2015). And a "district court's decision to hold litigants to the clear terms of its scheduling orders is not an abuse of discretion." KST Data, Inc. , 344 F. Supp. 3d at 1136 n.1 (citation omitted).
To be sure, the District Court could entertain a motion to compel even after the deadline for discovery motions has passed. See Jorgensen v. Cassiday , 320 F.3d 906, 913 (9th Cir. 2003). But the protracted litigation history of this case is a prime example why motions to compel filed after the close of discovery are usually denied. See Aardwolf Indus., LLC v. Abaco Machines USA, Inc. , 2017 WL 10339007, at *2 (C.D. Cal. Aug. 9, 2017). Moreover, when parties delay discovery for any reason, they do so at their peril. Rule 29 provides the procedure for parties to cooperatively complete discovery after a court-ordered cutoff, but only by stipulated order. See Fed. R. Civ. P. 29. Without a Rule 29 stipulated order in place, Plaintiff cannot have expected to enforce Defendant Brady's promise to appear for deposition after the cutoff set by the District Court. See Adinolfi by & through Adinolfi v. Omni La Costa Resort & Spa LLC , 2019 WL 2269881, at *2, *4 (S.D. Cal. May 28, 2019) (counsels' "unilateral agreement" to conduct deposition after discovery closed "without Court approval" and "beyond the date by which discovery was ordered completed violates Rule 29"); Banks v. City of Philadelphia , 309 F.R.D. 287, 291 (E.D. Pa. 2015) (explaining that discovery deadlines in scheduling order cannot be enforceably extended by parties' informal stipulation alone); Rakhra v. PHW Las Vegas, LLC , 2014 WL 99302, at *3 (D. Nev. Jan. 3, 2014) ("Counsel for Plaintiff was not at liberty to ignore the court-ordered deadlines and notice [party's] deposition after the expiration of the discovery cutoff[.]").
On the other hand, whether Plaintiff could have reasonably expected Defendant Brady to respond to his first set of requests for admissions before the discovery cutoff is less straightforward. Under Rule 36(a), "if a party fails to answer a request for admissions within 30 days, the requested items are deemed admitted." Hadley v. United States , 45 F.3d 1345, 1348 (9th Cir. 1995). "Any matter thus admitted is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Id. So if the responding party fails to respond, the requesting party may move "to compel a proper response, or to have the matter ordered admitted." Asea, Inc. v. S. Pac. Transp. Co. , 669 F.2d 1242, 1247 (9th Cir. 1981). But Plaintiff served his first requests on December 2, 2019, leaving less than 30 days for Defendant Brady to respond—as provided for in Rule 36—if he had to also comply with the competing discovery cutoff on December 10. The Federal Rules of Civil Procedure have no definitive answer to this dilemma. And federal courts are split on the question.
Most federal courts hold that responding parties have no duty to respond in this situation. See, e.g. , Gluck v. Ansett Australia Ltd. , 204 F.R.D. 217, 219-21 (D.D.C. 2001) (protective order proper where "Plaintiff served his requests for admissions a matter of days before the discovery deadline" but sought no "extension of the discovery deadline to allow the thirty days for ... responses"); Toone v. Federal Express Corp. , 1997 WL 446257, at *8 (D.D.C. July 30, 1997) (motion to compel responses denied because "plaintiff waited until the eleventh hour to serve discovery which could not be completed prior to discovery cut-off"); Nicholson v. City of Los Angeles , 2017 WL 10574522, at *5-6 (C.D. Cal. Jan. 11, 2017) (denying motion to compel responses filed after deadline for discovery motions). A few courts, though, hold that requests for admission filed less than 30 days before the discovery cutoff must still be answered. See, e.g. , Hurt v. Coyne Cylinder Co. , 124 F.R.D. 614, 615 (W.D. Tenn. 1989) ("Requests for admissions are not a general discovery device," so "Rule 36 request[s] for admissions [are] not included within the parameters of a general cutoff for discovery in a scheduling order.") (cleaned up).
This is the majority view. See Joseph L. v. Conn. Dep't of Children & Fams. , 225 F.R.D. 400, 402-03 (D. Conn. 2005) ; Coram Health Care Corp. of Illinois v. MCI Worldcom Commc'ns, Inc. , 2001 WL 1467681, at *3 (N.D. Ill. Nov. 15, 2001) ; Revlon Consumer Prod. Corp. v. Estee Lauder Companies, Inc. , 2001 WL 521832, at *1 (S.D.N.Y. May 16, 2001) ; Figueira v. MWV Mobile Veterinary Clinic, PLLC , 2015 WL 10963744, at *2 (D.N.H. Sept. 9, 2015). While the Ninth Circuit has not adopted it yet, there is little reason to think it would diverge. See, e.g. , Marchand v. Mercy Med. Ctr. , 22 F.3d 933, 936-37 (9th Cir. 1994) ("Parties may not view requests for admission as a mere procedural exercise requiring minimally acceptable conduct. They should focus on the goal of the Rules, full and efficient discovery, not evasion and word play.").
In the end, neither view helps Defendant Brady here. Even under the favorable majority view, he still had to "promptly object or move for a protective order" based on the untimeliness of the requests. Hadley , 45 F.3d at 1350. Having done neither, he remained "under a duty to respond." Id. And under the unfavorable view, of course, Defendant Brady had to register an objection or "file a motion to extend the time within which to respond." O'Neill v. Medad , 166 F.R.D. 19, 20, 22 (E.D. Mich. 1996). Not responding at all, as Defendant Brady did here, "flouts Rule 36." Id. at 23. It also flouted his overriding duty to cooperate in discovery, see L.R. 37-4, 83-7, exposing Defendant Brady to Rule 37 sanctions as well. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles , 894 F.2d 1482, 1485 (5th Cir. 1990) (separate order compelling discovery is not a prerequisite to Rule 37 sanctions); Tamari v. Bache & Co. (Lebanon) S.A.L. , 729 F.2d 469, 472 (7th Cir. 1984) ("[W]here a party has received adequate notice that certain discovery proceedings are to occur by a specific date, and that party fails to comply, a court may impose sanctions without a formal motion to compel the discovery from the opposing party.").
That said, the Court cannot overlook Plaintiff's contribution to this discovery morass. As the facts catalogued above reveal, Plaintiff bears as much—if not more—responsibility for the failure to depose Defendant Brady and obtain timely responses to requests for admissions before the original discovery cutoff. Defendant Brady is unrepresented after all. And he was ultimately deposed, even if incompletely. Nor can the Court condone how Plaintiff tried to smuggle discovery from Defendant Brady with the extra discovery time he should have devoted to Defendant Hunt. (Leaving the Court to wonder: What else, and how much more time, would Plaintiff try to request if Defendant Hunt finally makes his long-awaited appearance?) The Court likewise cannot countenance Plaintiff's disingenuous claim that his second set of requests for admission served on Defendant Brady was permissible because it was somehow about Defendant Hunt. The second set was a near carbon copy of the first with just cosmetic changes that fail any straight-face test.
Finally, compelling Defendant Brady to sit for a second deposition or to respond to requests for admissions—as a result of flagrantly late discovery motions—would encourage "conduct that unnecessarily consumes the Court's time and resources that could have been more productively utilized by litigants willing to follow the Court's procedures." Martin Family Trust v. Heco/Nostalgia Enterprises Co. , 186 F.R.D. 601, 603 (E.D. Cal. June 9, 1999) (cleaned up). As the Ninth Circuit put it, courts "routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders[.]" Wong v. Regents of Univ. of California , 410 F.3d 1052, 1060 (9th Cir. 2005). So too here.
None of this is to excuse Defendant Brady's discovery conduct. In fact, nothing in this order precludes the District Court from later redressing his refusal to answer Plaintiff's requests for admissions at "a pretrial conference or [other] specified time before trial." Fed. R. Civ. P. 36(a)(6). Nor is anything in this order intended to address the possible application of Rule 37(c)(2) for Defendant Brady's failure to answer those requests in discovery. See Marchand , 22 F.3d at 936 ; Comeaux v. Brown & Williamson Tobacco Co. , 915 F.2d 1264, 1275 (9th Cir. 1990). But for purposes of this motion, his lack of cooperation and Plaintiff's lack of diligence effectively cancel each other out in the end.
IV.
CONCLUSION
For all these reasons, Plaintiff's motion to compel (ECF 240) is denied. Defendant Brady's request for more time to file his opposition (ECF 245) is denied as moot. Both sides must bear their own expenses to litigate this motion. See Fed. R. Civ. P. 37(a)(5).