Collinge et al v. Intelliquick Delivery Incorporated et al

Filing 425

ORDER denying 419 Motion for Extension of Time Deadline and denying as moot 424 Motion to Expedite; denying as moot 424 Motion for Leave to File. Signed by Judge John W Sedwick on 7/13/17. (JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

David Collinge, et al.,
Plaintiffs,
vs.
Intelliquick Delivery, Inc., et al.,
Defendants.

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2:12-cv-824 JWS
ORDER AND OPINION
(Motions at docs. 419 and 424)

I. MOTIONS PRESENTED
At docket 419 Defendants move to extend the time for completing Phase IIB
discovery, the time for filing certain motions, and the time for filing a proposed pre-trial
order. Plaintiffs’ opposition is at docket 421, and Defendants’ reply is at docket 423. At
docket 424 Plaintiffs file a belated request for oral argument or, in the alternative, to file
a sur-reply.
II. DISCUSSION
After reviewing the briefing, the court finds that the principal substantive issue
presented is whether Defendants should be granted an extension of time for discovery
so that they may depose individual drivers about where their vehicles were at various
times in the past. As Defendants put it in their reply memo:

As previously stated, on June 8, Defendants received Plaintiffs’ expert rebuttal
report and learned that the experts had conflicting opinions regarding how
certain anomalies should be interpreted in the various reports. For example [and
this is the only example given], Plaintiffs’ expert opined that GPS data from the
vehicles driven by class members was unreliable because the data did not
present a continuous string of feedback, but instead presented a series of
discrete data outputs or “pings.” Defendants’ expert opined that the intervals
between the GPS data “pings” were confirmation of the model used by
Defendants’ expert. What will otherwise be an unnecessarily hypothetical
debate between the parties and [sic] could easily be explained by testimony of
absent class members as to such simple things as where their vehicles were
located during certain intervals of time.1
Defendants insisted on deposing absent class members from June 82 until June 28
when Defendants gave Plaintiffs a list of six opt-in plaintiffs who might be deposed in
lieu of absent class members. A review of the communications between the parties’
lawyers shows that on June 13 Plaintiffs’ counsel brought to the attention of defense
counsel that a defendant seeking to depose absent class members bears a heavy
burden to justify such discovery.3 Defendants did not directly challenge this proposition,
but instead waited until June 28 to effectively abandon the request to depose absent
class members by suggesting depositions of certain opt-in plaintiffs.
In the meantime, the court approved the parties’ seventh stipulated request to
modify the court’s scheduling order which they filed on May 12.4 The approved
stipulation modified the scheduling order setting June 30 as the deadline for completion

1

Doc. 423 at p. 2.

2

In the filing at docket 424, Plaintiffs contend that the subject of deposing absent class
members came up in late April. Given the court’s resolution of the motion at docket 419, it is
not necessary to determine when the subject first arose.
3

Doc. 421-2 citing relevant case law.

4

Doc. 412.

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of Phase IIB discovery. Obviously both sides were well aware that the much extended
deadline for discovery was about to close. Defendants did not move for an extension of
time for discovery until June 30, the very day discovery closed.
A scheduling order may be modified at the discretion of the court upon a
showing of good cause.5 A primary consideration when examining whether good cause
has been shown is whether the requesting party has been diligent.6 Assuming, without
deciding, that Defendants have been adequately diligent given the convoluted
circumstances presented here, the court nevertheless will not exercise its discretion to
grant the requested extension. Defendants have not actually demonstrated that the
requested discovery would resolve anomalies in the data obtained from the discrete
data outputs from the CXT system used in the drivers’ trucks. There is no reason to
believe that individual drivers have a better understanding of how the CXT system
works than do Defendants. There is no reason to believe that individual drivers could
remember exactly where they were or what they were doing between pings on various
past dates. The value of the additional discovery sought is counterintuitive and
speculative at best. The court declines to exercise its discretion to modify the
scheduling order to allow for such additional discovery.

5

Fed. R. Civ. P. 16(b)(4).

6

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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III. CONCLUSION
Based on the preceding discussion, the motion at docket 419 is DENIED, and
the motion at docket 424 is DENIED as moot in view of the decision on the motion at
docket 419.
DATED this 13th day of July 2017.

/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT

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