Opinion
No. CIV S-09-1454 KJM DAD.
May 4, 2011
ORDER
Plaintiff has filed a motion for an order shortening time to hear his simultaneously filed motion to extend the discovery cut-off in this case. The court determined that the matter could be submitted without oral argument.
I. Background
The initial class-action complaint in this case, first filed in Sacramento County Superior Court, contained claims for breach of fiduciary duty, negligence, rescission for mistake or fraud and violations of the Unfair Competition Law, California Business Professions Code §§ 17200 et seq., and the Consumer Legal Remedies Act, California Civil Code § 1750 et seq. The named defendants are Aviva Life and Annuity Company (Aviva), Loomis Wealth Solutions, Inc., Lawrence Loomis, Naras Secured Fund #2, Lismar Financial Services, Nationwide Lending Group, and Does 1 through 1000. ECF No. 1. Aviva removed the case to this court on May 27, 2009, under the Class Action Fairness Act, 28 U.S.C. § 1332. Aviva promptly filed a motion to dismiss and plaintiff filed a motion to remand. ECF Nos. 12, 16. While the motion to dismiss was pending, plaintiff filed a first amended complaint and Aviva filed a motion to dismiss it. ECF Nos. 53, 61. The court granted Aviva's motion but gave plaintiff leave to file a second amended complaint. ECF No. 71. Sanchez filed the second amended complaint on April 2, 2010, and Aviva filed another motion to dismiss, which was granted in part and denied in part. ECF Nos. 84, 87, 93. Aviva filed its answer on July 21, 2010. ECF 95.
The other defendants have not appeared in this action.
In their joint status report filed July 29, 2010, the parties agreed to make initial disclosures under Federal Rule of Civil Procedure 26(a)(1) on August 16, 2010. Plaintiff suggested he might need additional interrogatories and more deposition hours than the minimum provided for in the rules, and contemplated seeking an order permitting additional discovery. ECF No. 96 at 4. The parties could not agree on a calendar for the litigation. Aviva proposed May 27, 2011 as the cut-off for non-expert discovery while plaintiff proposed December 14, 2010. Id. at 5.
Page references are to those assigned by the court's ECF system, unless otherwise noted.
The court issued its pretrial scheduling order on July 30, 2010; it set March 1, 2011 as the last day for non-expert discovery. ECF 97 at 2.
On March 2, 2011, plaintiff filed an ex parte application to shorten time to hear a motion to extend the discovery cut-off and on the same day filed the motion to extend. Counsel avers that he could not undertake discovery until mid-August 2010, after the exchange of initial disclosures, but that after reviewing the information provided, he propounded written discovery on September 7 and 8, 2010. Declaration of Lawrence Salisbury (Salisbury Decl.) ¶¶ 4-5. Defendant responded in November with some information, but made numerous objections as well. Id. ¶ 5. Thereafter, counsel for both parties met and conferred at least five times from November 23, 2010 through February 10, 2011. Id. ¶ 6. By February 14, the parties resolved several of their differences and formalized the scope of their disagreement by February 16, 2011. Id. ¶ 7. Salisbury opines that, given the breadth and complexity of the document requests, it was prudent to wait until any issues regarding those requests were resolved before scheduling depositions. He has not yet deposed anyone from Aviva, although he has asked counsel for potential dates. Id. ¶ 8.
Aviva's counsel counters that the parties' Rule 26(f) scheduling conference was conducted in July 2010, initial disclosures were exchanged on August 18, 2010, and that in connection with the disclosures, Aviva produced thousands of pages of documents. Declaration of Bonnie Lau (Lau Decl.) ¶¶ 2-3. In response to plaintiff's requests on September 7 and 8, 2010, Aviva provided substantive responses and agreed to produce documents relating to the relationship (if any) between Aviva and the other defendants, financial arrangements between Aviva and the other defendants, Loomis's seminars, and Aviva's policies regarding the sale of its insurance policies. Id. ¶ 6. Aviva also objected to a number of the requests for admissions, interrogatories and requests for documents, including requests for documents about "`all third parties in any way related to the allegations alleged in the complaint.'" Id. ¶ 9. Plaintiff's counsel did not provide a list of names of "third parties" until December 2010; even then, the list contained 150 names, some of which were not identified adequately enough to allow Aviva's conduct of a well-informed search for responsive material. Id. ¶¶ 9-10 Exs. A B. Aviva provided supplemental responses to this request on February 16, 2011. Id. ¶ 11. Plaintiff's counsel did not ask about taking Aviva's deposition until January 20, 2011, and despite Aviva's counsel's prompt reply, asking for a 30(b)(6) deposition notice, plaintiff's counsel has never provided a list of proposed deposition topics. Id. ¶¶ 13-15 Ex. C. Plaintiff did not ask for a stipulation to extend the discovery cut-off until the afternoon of February 28, 2011, one day before the March 1 cutoff. Id. ¶ 17.
Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that when a party seeks to depose a corporation, it "must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers . . . or designate other persons who consent to testify on its behalf. . . . "
II. Analysis
Under Rule 16(b) of the Federal Rules of Civil Procedure, a pretrial scheduling order shall not be modified except upon a showing of good cause. In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992), the Ninth Circuit described Rule 16(b)'s good cause standard as focusing on "the diligence of the party seeking the amendment." It recognized that while "the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus is upon the moving party's reasons. . . . If that party was not diligent, the inquiry should end." Id. at 609; see also Ultimax Cement Manufacturing Corporation v. CTS Cement Manufacturing, 587 F.3d 1339, 1354 (9th Cir. 2010) ("`good cause' has been defeated by undue delay in moving to amend. . . .").
Plaintiff has not shown good cause under this standard. He waited until the day before the discovery cutoff to ask for a stipulation to extend the deadline and did not file his motion for an extension until after the period had expired, even though he realized at the time the joint status report was filed that he might need to pursue discovery outside of the schedule and limitations of the federal rules. Moreover, although plaintiff's counsel says generally that it was not prudent to schedule depositions until he had reviewed the written discovery, he does not explain why his review of the materials provided was insufficient to allow him to move forward with depositions. See Photomedex, Inc. v. Irwin, 2007 WL 2238359, at *2 (S.D. Cal. 2007) (strategic decisions do not always demonstrate diligence or good cause). Finally, when plaintiff did ask Aviva's counsel about scheduling depositions, he did not provide the information necessary to identify the appropriate persons to respond to a corporate deposition notice, despite Aviva's counsel's inquiry.
III. Miscellaneous
In light of the reassignment of this case to this court, the dates currently set for pretrial conference and trial must be reset.
IT IS THEREFORE ORDERED that:
1. Plaintiff's motion to shorten time (ECF No. 114) is granted.
2. Plaintiff's motion to extend the discovery cut-off (ECF No. 117) is denied.
3. The final pretrial conference is reset from September 16 to September 14, 2011 at 11:00 a.m. in Courtroom Three.
4. The trial date is reset from November 29, 2011 to November 28, 2011 at 9:00 a.m.
DATED: May 3, 2011.