Jerry Beeman and Pharmacy Services Inc et al v. Anthem Prescription Management Inc et al

Filing 436

MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: granting #434 Motion to Compel. (1) Defendants' Motion to Compel is GRANTED. (2) McCarthy shall appear for her deposition at Defendants counsel's office within fourteen (14) days of the date of this Order; (3) Counsel for the parties shall meet and confer within three (3) court days of the date of this Order to set the date for McCarthys deposition; (4) Defendants request for payment of their reasonable expenses incurred in making the Motion to Compel is GRANTED; (5) Defendants may file a supplemental brief and declaration regarding the expenses reasonably incurred in making the Motion to Compel no later than seven (7) days from the date of this order and Plaintiffs' Counsel may file a supplemental brief in opposition to the amount of expenses sought within seven (7) from the date of service of Defendants brief; and (6) Plaintiffs' Counsel shall provide a copy of this Order to McCarthy. (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

EDCV 04-407-VAP (KKx)

Date: August 15, 2016

Jerry Beeman and Pharmacy Services, Inc., et al. v. Anthem Prescription
Management, Inc., et al.

Title:

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

Order Granting Defendants’ Motion to Compel [Dkt. 434]

On July 28, 2016, Defendants1 filed a Motion to Compel proposed class representative
Carrie McCarthy (“McCarthy”) to produce documents and appear at a deposition (“Motion to
Compel”). ECF Docket No. (“dkt.”) 434. Defendants also seek their reasonable expenses
incurred in bringing the Motion to Compel. Id. McCarthy2 failed to timely respond to
Defendants’ request to meet and confer pursuant to Local Rule 37-1 and has not filed an
1

“Defendants” refers to the non-settling defendants Argus Health Systems, Inc.,
Benescript Services, Inc., FFI RX Managed Care, First Health Services Corporation d/b/a
Virginia First Health Services Corporation, Mede America Corp., National Medical Health Card
Systems, Inc., Pharmacare Management Services, Inc., Prime Therapeutics, Restat Corporation,
RX Solutions, Inc., Tmsys, Inc., and WHP Health Initiatives, Inc.
2

Counsel for Plaintiffs, Alan M. Mansfield of The Consumer Law Group, and Michael A.
Bowse of Browne George Ross, LLP (collectively “Plaintiffs’ Counsel” or “McCarthy’s
Counsel”) purport to represent McCarthy by filing Objections to the Subpoena and
communicating with defense counsel on her behalf. See Declaration of Brian H. Newman in
support of Motion to Compel (“Newman Decl.”), Ex. E. In light of the actions by Plaintiffs’
Counsel and the fact that Plaintiffs’ Counsel seeks to substitute McCarthy as the class
representative, the Court concludes Plaintiffs’ Counsel should be considered counsel for
McCarthy for purposes of this Order.
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Opposition to Defendants’ Motion to Compel. See dkt. 434-2, Declaration of Christopher
Chorba in support of Motion to Compel (“Chorba Decl.”), ¶ 9. For the reasons set forth below,
the Court GRANTS Defendants’ Motion to Compel. The hearing set for August 18, 2016 is
hereby VACATED.
I.
BACKGROUND
On April 1, 2016, Plaintiffs filed a motion for preliminary approval of a class settlement
with defendant Managed Pharmacy Benefits, Inc. (“Settling Defendant”). Dkt. 389. On April
11, 2016, Plaintiffs filed a motion to substitute McCarthy for plaintiff Charles Miller d/b/a
Medicine Shoppe because Mr. Miller died on October 12, 2010. Dkt. 393.
Defendants personally served McCarthy with a deposition subpoena requiring her to
appear for deposition on May 25, 2016 and produce documents related to her eligibility to
represent Mr. Miller’s interests and the proposed class.3 Newman Decl., ¶ 4, Ex. B. On May 19,
2016, Plaintiffs’ Counsel informed Defendants’ counsel McCarthy was not available for a
deposition on May 25, 2016. Chorba Decl., ¶ 4. Plaintiffs’ Counsel advised he would provide
new dates by May 20, 2016. Id.
On May 20, 2016, Plaintiffs’ Counsel served objections to the subpoena and document
requests on behalf of McCarthy, but did not provide any proposed dates for a deposition. Id. at ¶
5; Newman Decl., Ex. E.
On June 2, 2016, the parties stipulated to continue the hearings on Plaintiffs’ motion for
preliminary approval of class settlement and motion to substitute plaintiff in order to allow
Defendants sufficient opportunity to conduct discovery concerning McCarthy prior to the
hearings. Dkt. 410. On June 2, 2016, the Court granted the parties’ request and the hearings
were continued to July 25, 2016. Dkt. 411.
On June 8, 2016, Defendants’ counsel sent Plaintiffs’ Counsel a letter requesting to meet
and confer pursuant to Local Rule 37-1 regarding the objections and possible dates for
McCarthy’s deposition. Newman Decl., ¶ 7, Ex. F.
On June 10, 2016,4 McCarthy appeared at Defendants’ counsel’s office for her deposition
without counsel. Id. at ¶ 8. Defendants’ counsel informed McCarthy “the deposition was not
going forward on June 10th, [and] that [he] had informed her attorney (Mr. Bowse) of this fact in
writing.” Id. McCarthy responded that “she had not spoken with Mr. Bowse ‘in weeks,’ and
3

Defendants do not provide a proof of service of the subpoena on McCarthy and do not
provide the date on which service was completed.
4

It is unclear to the Court why McCarthy would have believed the deposition was
scheduled for June 10, 2016, but it appears Defendants’ counsel understood that at some point
the parties had agreed to continue the deposition to June 10, 2016, but had since cancelled it.
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had no idea that the deposition was not scheduled to go forward on June 10th.” Id. Defendants’
counsel then informed Plaintiffs’ Counsel via e-mail that McCarthy had erroneously appeared for
her deposition earlier that day. Id.
On July 11, 2016, Defendants’ counsel provided Plaintiffs’ Counsel with Defendants’
portion of a joint stipulation in support of the instant Motion to Compel. Chorba Decl., ¶ 9.
On July 15, 2016, the parties submitted a Joint Stipulation to continue the hearings on
Plaintiffs’ motions for class settlement approval and substitution from July 25, 2016 to August
29, 2016. Dkt. 427. In the Joint Stipulation, Plaintiffs’ Counsel agreed “to provide the requested
documents at least ten days before the scheduled deposition[], and complete the deposition[] by
August 8, 2016.” Id. On July 18, 2016, the Court granted the parties’ request and continued the
hearings until August 29, 2016. Dkt. 431.
As of July 20, 2016, Plaintiffs’ Counsel had not provided a date for McCarthy’s
deposition to go forward and had not returned McCarthy’s portion of the joint stipulation.
Chorba Decl. at ¶¶ 7, 9.
On July 28, 2016, Defendants filed the instant Motion to Compel. Dkt. 434. Neither
Plaintiffs’ Counsel nor McCarthy has filed an opposition. The matter thus stands submitted.
II.
LEGAL STANDARD
In the amendments to the Federal Rules of Civil Procedure effective December 1, 2015,
“Rule 1 is amended to emphasize that just as the court should construe and administer these
rules to secure the just, speedy, and inexpensive determination of every action, so the parties
share the responsibility to employ the rules in the same way.” Fed. R. Civ. P. 1 advisory
committee notes (2015 amendments).
Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery
regarding
any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Relevant information “need not be admissible in evidence to be
discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed”
if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less expensive; (ii) the party
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seeking discovery has had ample opportunity to obtain the information by discovery in the action;
or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
26(b)(2)(C).
“The court may impose an appropriate sanction – including the reasonable expenses and
attorney’s fees incurred by any party – on a person who impedes, delays, or frustrates the fair
examination of the deponent.” Fed. R. Civ. P. 30(d)(2); see also F.C.C. v. Mizuho Medy Co.,
257 F.R.D. 679, 683 (S.D. Cal. 2009); Biovail Labs., Inc. v. Anchen Pharm., Inc., 233 F.R.D. 648,
655 (C.D. Cal. 2006) (granting motion to compel deposition of non-party where non-party’s
counsel unreasonably, prematurely terminated deposition, thereby delaying and frustrating the
fair examination of the non-party deponent).
Lastly, pursuant to Local Rule 7-12, a party’s failure to timely oppose a motion may be
deemed consent to the granting of the motion and sanctions are available when a party fails to
adequately comply with the applicable Local Rules (e.g., Local Rule 37-2’s requirement of
cooperation in preparation of a joint stipulation regarding discovery disputes). L.R. 7-12; 37-4.
III.
DISCUSSION
First, the Court finds the documents sought by Defendants are relevant to determining
McCarthy’s eligibility to represent Miller’s interests and the proposed class. Second, pursuant
to Local Rule 7-12, this Court may, and does, interpret the failure to oppose Defendants’ Motion
to Compel as Plaintiffs’ Counsel’s and McCarthy’s consent to granting the Motion. Finally,
Plaintiffs’ Counsel’s failure to appear at McCarthy’s properly noticed deposition on a date when
McCarthy was undeniably available, unjustifiably delayed and frustrated McCarthy’s deposition.
Moreover, Plaintiffs’ Counsel continues to delay and frustrate proper discovery by representing
to the Court that McCarthy’s deposition would go forward by August 8, 2016. See Biovail Labs.,
Inc., 233 F.R.D. at 655. Thus, this Court now exercises its discretion to GRANT Defendants’
unopposed motion to compel McCarthy’s deposition and production of documents.
The Court also GRANTS Defendants’ request for reasonable expenses incurred in
bringing the instant Motion. While McCarthy appeared for her deposition on June 10, 2016,
Plaintiffs’ Counsel failed to appear and failed to communicate with McCarthy that the deposition
had been continued. Plaintiffs’ Counsel’s actions in frustrating and delaying McCarthy’s
deposition and failure to cooperate in preparation of the joint stipulation, warrant requiring
Plaintiffs’ Counsel to pay Defendants’ reasonable expenses incurred in bringing the instant
Motion to Compel. See F.C.C., 257 F.R.D. at 683; Fed. R. Civ. P. 30(d)(2); L.R. 37-4.
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IV.
CONCLUSION
Based upon the foregoing reasons and the failure to file a timely opposition, IT IS
THEREFORE ORDERED that:
(1)

Defendants’ Motion to Compel is GRANTED.

(2)
McCarthy shall appear for her deposition at Defendants’ counsel’s office within
fourteen (14) days of the date of this Order;
(3)
Counsel for the parties shall meet and confer within three (3) court days of the
date of this Order to set the date for McCarthy’s deposition;
(4)
Defendants’ request for payment of their reasonable expenses incurred in making
the Motion to Compel is GRANTED;
(5)
Defendants may file a supplemental brief and declaration regarding the expenses
reasonably incurred in making the Motion to Compel no later than seven (7) days from the date
of this order and Plaintiffs’ Counsel may file a supplemental brief in opposition to the amount of
expenses sought within seven (7) from the date of service of Defendants’ brief; and
(6)

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Plaintiffs’ Counsel shall provide a copy of this Order to McCarthy.

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