Korff v. Phoenix, City of et al

Filing 303

ORDER: denying Plaintiff's "Request for Court Order Regarding Arizona State Board of Pharmacy Controlled Substances Prescription Database Information Regarding Craig Tiger" (Doc. #273 ). IT IS FURTHER ORDERED denying Defendant Estate of Tiger's request for sanctions (Doc. #277 ) and denying Plaintiff's motion to strike (Doc. #280 ). Signed by Magistrate Judge Eileen S Willett on 03-29-16.(GAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lynne Korff,

No. CV-13-02317-PHX-ESW
Plaintiff,

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v.

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ORDER

Phoenix, City of, et al.,

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Defendants.

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Pending before the Court is Plaintiff’s “Request for Court Order Regarding

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Arizona State Board of Pharmacy Controlled Substances Prescription Database

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Information Regarding Craig Tiger” (Doc. 273). Estate of Craig Tiger responded (Doc.

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277), and Plaintiff replied (Doc. 280).

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respective positions, and oral argument is deemed unnecessary. The request for oral

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argument is denied.

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The parties have clearly articulated their

I. DISCUSSION

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In her Amended Complaint (Doc. 1-1, 63-71), Plaintiff alleges (i) negligence by

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vicarious liability against the City of Phoenix and (ii) excessive force in violation of the

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Fourth Amendment pursuant to 42 U.S.C.§ 1983 against Defendants Conklin and Estate

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of Craig Tiger. The case arises from the June 4, 2012 shooting death of Plaintiff’s adult

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son by City of Phoenix police officers. By Notice of Removal filed November 13, 2013

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(Doc. 1), the matter was filed in U.S. District Court, District of Arizona. All issues are

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joined. (Docs. 19, 21, 26). The Court issued a Case Management Order (Doc. 34)

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pursuant to Rule 16, Fed. R. Civ. P., which has been amended by stipulation of the parties

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and Order of the Court numerous times. (Docs. 74, 90, 108, 210, 239, 244, 257, 266).

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By Order of the Court issued on September 1, 2015, discovery closed effective

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September 30, 2015. (Doc. 257).

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extended to October 26, 2015. (Doc. 266). Cross-motions for summary judgment were

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filed on October 26, 2015. (Docs. 267, 270). On October 29, 2015, Plaintiff filed the

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present Request (Doc. 273). Plaintiff’s Request may be construed as a (i) discovery

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motion; (ii) de facto motion to extend the discovery deadline; or (iii) motion filed

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pursuant to Rule 56(d), Fed. R. Civ. P., to continue the motions for summary judgment in

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order to take additional discovery. As discussed below, denial of Plaintiff’s Request is

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justified regardless of how the Request is construed.

The deadline for filing dispositive motions was

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A. Plaintiff’s Request was Filed after the Discovery Deadline and is Untimely

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Plaintiff requests that the Court issue an order requiring the Arizona State Board

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of Pharmacy to release prescription information regarding Officer Craig Tiger. By Order

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filed on July 2, 2015, the Court found that “whether Defendant Tiger was impaired at the

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time of the shooting and whether he was authorized under police departmental policy to

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carry his weapon on June 4, 2012 are relevant areas of inquiry for discovery pursuant to

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Rule 26, Fed. R. Civ. P.” (Doc. 255 at 3). However, Plaintiff did not timely subpoena the

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pharmacological records pursuant to Rule 45, Fed. R. Civ. P., or timely seek a Court

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order to obtain them. Nor does Plaintiff request an extension of time pursuant to Rule

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16(b), Fed. R. Civ. P., to do so. Because Plaintiff filed his Request (Doc. 273) after the

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discovery deadline had expired, the Court may deny the Request as untimely. See U.S.

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Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir.

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1985) (court may deny as untimely a motion filed after the scheduling order cut-off date

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where no request to modify the order has been made); Dedge v. Kendrick, 849 F.2d 1398,

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1398 (11th Cir. 1988) (holding that a district court properly denied a motion as untimely

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where the motion was filed after the deadline set forth in the scheduling order).

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The Court notes that Plaintiff could have requested modification of the Case

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Management Order upon a showing of “good cause.” See Rule 16 (b), Fed. R. Civ. P.

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“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party

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seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F. 2d 604, 609 (9th

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Cir. 1992). If a pretrial schedule cannot be met despite the diligence of the party seeking

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an extension of time, the Court may modify its scheduling order.

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KANE, FEDERAL PRACTICE AND PROCEDURE § 1522.1 at 231 (2d ed. 1990) (good cause

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means scheduling deadlines cannot be met despite party's diligence). Carelessness is not

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good cause for the extension of discovery deadlines.

See MILLER &

Johnson, 975 F.2d at 609.

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“Although the existence or degree of prejudice to the party opposing the modification

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might supply additional reasons to deny a motion, the focus of the inquiry is upon the

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moving party's reasons for seeking modification. If that party was not diligent, the

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inquiry should end. Id. (citations omitted).

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No good cause has been shown by Plaintiff to support another extension of the

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discovery deadline in this case pursuant to Rule 16(b), Fed. R. Civ. P. Plaintiff has not

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demonstrated diligence in the pursuit of Officer Tiger’s pharmacological records.

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Therefore, denial of Plaintiff’s Request (Doc. 273) is warranted even if it is deemed as a

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de facto motion to modify the Case Management Order.

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B. Plaintiff’s Request Does Not Satisfy the Requirements of Rule 56(d), Fed.
R. Civ. P.
The Court may also consider Plaintiff’s Request for Court Order to be a request
for a continuance on the filing of Plaintiff’s opposition to Defendants’ Joint Motion for
Summary Judgment pursuant to Rule 56(d), Fed. R. Civ. P. 1

However, in order to

request a continuance on the deadline for filing her response to Defendants’ Joint Motion
for Summary Judgment, Plaintiff must show by affidavit: (i) specific facts that she hopes
to elicit from further discovery; (ii) that the facts sought exist; and (iii) that the sought1

Prior to the 2010 amendments to the Federal Rules of Civil Procedure, Rule
56(d) was numbered 56(f).

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after facts are essential to opposing the motion for summary judgment. See Family Home

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and Finance Center, Inc. v. Federal Home Loan Mortgage Corp., 525 F. 3d 822, 827 (9th

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Cir. 2008). “The party seeking a Rule 56(d) continuance bears the burden of proffering

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facts sufficient to satisfy the requirements of 56(d).” Martinez v. Columbia Sportswear

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USA Corp., 553 F. App’x 760, 761 (9th Cir. 2014).

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proper if the movant fails to comply with the requirements of Rule 56(d) or if the movant

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has failed to conduct discovery diligently. See, e.g., United States v. Kitsap Physicians

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Service, 314 F.3d 995, 1000 (9th Cir. 2002) (“Failure to comply with [the requirements of

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Rule 56(d)] is a proper ground for denying relief.”); Pfingston v. Ronan Engineering Co.,

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284 F.3d 999, 1005 (9th Cir. 2002) (“The failure to conduct discovery diligently is

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grounds for the denial of a Rule 56(f) motion.”); Mackey v. Pioneer Nat’l Bank, 867 F.2d

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520, 524 (9th Cir. 1989) (“A movant cannot complain if it fails diligently to pursue

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discovery before summary judgment”); Landmark Dev. Corp. v. Chambers Corp., 752

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F.2d 369, 372 (9th Cir. 1985) (ruling that district court properly denied the plaintiffs’

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Rule 56(d) motion because the “[f]ailure to take further depositions apparently resulted

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largely from plaintiffs’ own delay”).

Denial of a Rule 56(d) motion is

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The Court finds that Plaintiff has had sufficient opportunity to conduct discovery

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in this case. The original Complaint was filed on May 31, 2013. The discovery deadline

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was extended many times before the final deadline of September 30, 2015 was reached.

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Plaintiff was afforded an opportunity to conduct discovery on this issue by Order of the

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Court issued on July 2, 2015. (Doc. 243). Plaintiff has not been diligent in pursuing the

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pharmacological records at issue. To the extent Plaintiff’s Request (Doc. 273) was filed

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pursuant Rule 56(d), the Request is denied based on Plaintiff’s lack of diligence.

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Moreover, as explained below, the Request fails on the merits.

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Plaintiff seeks to show that Officer Tiger was under the influence of medication

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prohibited by departmental policy at the time of the discharge of his weapon. However,

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whether the information sought will prove that Officer Tiger was under the influence of

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medication prohibited by departmental policy at the time of the discharge of his weapon

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is speculative. If the records sought exist, the most they will show is that medication was

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called into the pharmacy or purchased. The records will not conclusively show that

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Officer Tiger was “using and abusing said prescription and non-prescription medication

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before and up through the time of the shooting of Mr. O’Brien.” (Doc. 273 at 2).

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Allowing the sought after discovery would not preclude summary judgment. See

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Martinez, 553 F. App’x at 761 (stating that two of the relevant factors when deciding a

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Rule 56(d) motion are (i) whether the information sought is based on mere speculation

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and (ii) whether allowing additional discovery would preclude summary judgment).

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Plaintiff has failed to meet her burden of proof under Rule 56(d), Fed. R. Civ. P. For all

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of the reasons discussed above, Plaintiff’s Request for Court Order (Doc. 273) will be

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denied.

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C. Defendant Estate of Tiger’s Request for Attorneys’ Fees

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Defendant Estate of Tiger requests an award of attorneys’ fees as a sanction for the

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filing of Plaintiff’s Request for Court Order. (Doc. 277 at 7). Defendant Estate of Tiger

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asserts that Plaintiff”s Request for Court Order is a discovery motion, and Plaintiff failed

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to comply with LRCiv 7.2(j) prior to filing her request. In addition, Defendant Estate of

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Tiger argues that sanctions are appropriate under Fed. R. Civ. P. 16(f)(2). The Court

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finds that the email correspondence between counsel regarding the filing of Plaintiff’s

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Request for Court Order reflects an attempt to resolve the issue without the assistance of

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the Court. Clearly, a phone conversation after defense counsel’s responding email would

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have been a futile act. Therefore, the request for sanctions pursuant to LRCiv 7.2(j) will

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be denied.

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“Federal Rule 16(f) requires counsel to comply with pretrial orders and provides

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that the Court may order any ‘just’ sanctions, including those outlined in Rule

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37(b)(2)(A)(ii)-(vii), for non-compliance.” Fadem v. Am. States Preferred Ins. Co., No.

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2:13–cv–01213–RCJ–NJK, 2013 WL 5492776, *1 (D. Nevada, October 2, 2013).

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Sanctions under Rule 16(f) are remedial in nature and are intended “to encourage forceful

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judicial management” of cases. Sherman v. U.S., 801 F. 2d 1133, 1135 (9th Cir. 1986).

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“[V]iolations of Rule 16 are neither technical nor trivial, but involve a ‘matter most

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critical to the court itself: management of its docket’ and the avoidance of unnecessary

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delays in the administration of its cases.” Martin Family Trust v. Heco/Nostalgia

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Enterprises Co., 186 F.R.D. 601, 602 (E.D. Cal. June 9, 1999) (citing Matter of Sanction

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of Baker, 744 F. 2d 1438, 1441 (10th Cir. 1984)). “A scheduling order ‘is not a frivolous

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piece of paper, idly entered, which can be cavalierly disregarded by counsel without

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peril.’ . . . Disregard of the order would undermine the court's ability to control its docket

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. . . and reward the indolent and the cavalier.” Johnson, 975 F.2d at 610. The Court

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need not find bad faith in order to award sanctions pursuant to Rule 16(f), Fed. R. Civ. P.

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See Harrell v. U.S., 117 F.R.D. 86,88 (E.D. N.C. 1987); 6A CHARLES A. WRIGHT &

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ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1531 (1990) (“The fact that

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a pretrial order was violated is sufficient to allow some sanction.”).

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If the Court finds that a party has failed to obey a scheduling order, then instead of

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or in addition to any other sanction, Rule 16 (f)(2), Fed. R. Civ. P., requires the Court to

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“order the party, its attorney, or both to pay reasonable expenses—including attorney’s

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fees—incurred because of any noncompliance with this rule, unless the noncompliance

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was substantially justified or other circumstances make an award of expenses unjust.” Id.

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If the Plaintiff’s Request for Court Order is construed as a Rule 56(d), Fed. R. Civ.

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P., request for extension of time to reopen discovery and respond to the Defendants’

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Motion for Summary Judgment, then sanctions pursuant to Rule 16(f) are not appropriate.

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If treated as an untimely request for discovery, sanctions may be awarded. The Court

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finds that by filing her Request for Court Order, Plaintiff attempted to secure additional

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discovery from a non-party after the deadline to conduct discovery had passed. She did

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so without the agreement of opposing counsel and without requesting an extension of the

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Court’s discovery deadlines.

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Management Order.

Therefore, Plaintiff failed to obey the Court’s Case

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Plaintiff’s justification for the untimeliness of her Request for Court Order is

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language contained in an Order of the Court filed August 28, 2015 (Doc. 255). In ruling

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upon Defendants’ Joint Motion to Strike Rebuttal Expert Opinions of Plaintiff’s Experts

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and Defendants’ Request for Leave to Disclose Rebuttal Opinions of Audio Expert (Doc.

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203), the Court noted that it had made recent rulings (Doc. 243) which expanded relevant

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areas of discovery, and the Court stated that “updating expert opinion reports whether as

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direct testimony or in rebuttal is anticipated in the normal course of discovery and

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permitted by the Federal Rules of Civil Procedure.” (Doc. 255 at 3). The Court further

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stated that “[b]oth Plaintiff and Defendants may supplement their expert reports with

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information the Court has deemed relevant for discovery purposes.” (Id.). Nowhere in

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the Order of August 28, 2015 (Doc. 255) or the Order of July 2, 2015 (Doc. 243),

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however, did the Court permit the additional discovery of documents from non-parties to

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occur after the deadline of September 30, 2015.

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Nevertheless, the Court finds that denial of the Request for Court Order (Doc.

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273) requires no additional sanction under Rule 16(f)(1)(C), Fed. R. Civ. P.

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Circumstances in this case make an award of Defendant Estate of Tiger’s expenses unjust

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pursuant to Rule 16(f)(2), Fed. R. Civ. P. The Court gives Plaintiff the benefit of the

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doubt as to her interpretation of the Court’s Order of August 28, 2015 (Doc. 255).

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Defendant Estate of Tiger’s request for an award of attorneys’ fees will be denied.

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D. Plaintiff’s Motion to Strike

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Plaintiff requests that the Court “strike Defendants’ expert reports and opinions

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disclosed way past the discovery deadline.” As argument for this motion, Plaintiff merely

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says, “What is good for the goose…” (Doc. 280 at 6). Attached to the Reply (Doc. 280)

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are Exhibits A and B, which are a disclosure statement and an expert report from Mr.

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Huth. Pursuant to LRCiv 7.2(m), a motion to strike may only be filed if it is authorized

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by statute or rule. Plaintiff’s motion is not supported by citation to statute, rule, or case

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law. The Court is unable to determine which opinions may be newly disclosed or

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untimely from the Exhibits attached.

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support her motion. Plaintiff’s motion lacks sufficient clarity to satisfy the requirement

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set forth in Rule 7(b)(1), Fed. R. Civ. P. , that a motion “state with particularity the

Plaintiff provides no analysis or authority to

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grounds for seeking the order” and “the relief sought.” “[I]ssues adverted to in a

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perfunctory manner, unaccompanied by some effort at developed argumentation, are

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deemed waived. It is not sufficient for a party to mention a possible argument in the most

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skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125

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F.3d 989, 995-96 (6th Cir. 1997) (quoting Citizens Awareness Network, Inc. v. United

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States Nuclear Regulatory Comm’n, 59 F.3d 294, 293-94 (1st Cir. 1995)). The motion to

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strike will be denied.
II. CONCLUSION

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For the reasons set forth herein,

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IT IS ORDERED denying Plaintiff’s “Request for Court Order Regarding

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Arizona State Board of Pharmacy Controlled Substances Prescription Database

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Information Regarding Craig Tiger” (Doc. 273).

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IT IS FURTHER ORDERED denying Defendant Estate of Tiger’s request for
sanctions (Doc. 277).
IT IS FURTHER ORDERED denying Plaintiff’s motion to strike (Doc. 280).

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Dated this 29th day of March, 2016.

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