Pacific Marine Center, Inc. et al v. Philadelphia Indemnity Insurance Company

Filing 73

ORDER DENYING Defendant's Motion to Compel, 71 , as untimely. The hearing ser for 1/13/2016, is VACATED. Order signed by Magistrate Judge Sheila K. Oberto on 1/11/2016. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PACIFIC MARINE CENTER, INC., A
California Corporation, and SONA
VARTANIAN, an individual,

Case No. 1:13-cv-00992-DAD-SKO
ORDER DENYING DEFENDANT'S
MOTION TO COMPEL

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Plaintiffs,
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(Doc. Nos. 68, 71)
v.

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PHILADELPHIA INDEMNITY INSURANCE
COMPANY, a Pennsylvanian Corporation, and
DOES 1 through 10, inclusive,
Defendants.
_____________________________________/

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I.

INTRODUCTION

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On December 21, 2015, Defendant Philadelphia Indemnity Insurance Company

24 ("Defendant") filed a motion to compel. (Doc. 68.) Pursuant to this Court's Local Rule 251, the
25 parties submitted a Joint Statement re Discovery Disagreement on January 5, 2016.

After

26 reviewing the parties' Joint Statement and supporting materials, the Court finds oral argument is
27 unnecessary pursuant to Local Rule 230(g); as such, the hearing set for January 13, 2016, is
28 VACATED. For the reasons set forth below, Defendant's motion to compel is DENIED.

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II.

PROCEDURAL HISTORY

The original schedule in this matter was set on November 27, 2013, which required that all

3 non-expert discovery be concluded by December 12, 2014, all expert discovery concluded by
4 January 20, 2015, and all non-dispositive pre-trial motions, including any discovery motions, were
5 to be filed by no later than January 28, 2015. (Doc. 9.) All the deadlines, including the trial, were
6 extended on October 2, 2014, pursuant to the parties' stipulated request. (Doc. 17.) On March 9,
7 2015, the entire schedule was again modified at the parties' request. On April 29, 2015, again
8 citing discovery disputes and difficulty scheduling depositions, the parties requested a schedule
9 modification, including a continuation of the trial date. This request was granted on May 8, 2015,
10 and all non-expert discovery was to be completed by September 15, 2015, expert discovery was to
11 be completed by October 30, 2015, and all non-dispositive motions were to be filed by October
12 27, 2015. (Doc. 40.)
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On July 30, 2015, the parties submitted their fourth stipulated request for a wholesale

14 change to the schedule because Plaintiff had broken her ankle and her deposition needed to be
15 continued. This request was also granted, and non-expert discovery was extended to October 15,
16 2015, expert discovery was extended to November 13, 2015, and the deadline for filing non17 dispositive motions was continued to November 16, 2015. (Doc. 45.) On September 30, 2015,
18 the parties submitted their fifth stipulated request for a schedule change due to the discovery of
19 two new witnesses, and the parties sought additional time to designate supplemental experts:
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WHEREAS, the current schedule of disclosure of expert testimony allows only
four days from the date of the initial disclosure for the parties to provide
supplemental disclosure of experts based upon the initial disclosure and Plaintiffs
and Philadelphia would like more time to obtain and designate supplemental
experts based upon the initial disclosure of experts of the opposing party;

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WHEREAS, Plaintiffs and Philadelphia desire to extend the time for non-expert
discovery and to continue the dates of the deadlines for disclosure of experts,
dispositive and non-dispositive motions;

26 (Doc. 48.) To maintain the trial date, the pre-trial deadlines were extended, but not to the extent
27 requested by the parties. (Doc. 53.) Twenty-one days later, the parties filed their sixth request for
28 a schedule modification, stating the schedule was simply too aggressive:
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WHEREAS, under the current schedule, the parties must provide expert reports on
October 30, 2015, attend the settlement conference on November 2, 2015, counterdesignate experts on November 5, 2015, complete expert deposition discovery by
November 12, 2015[,] and file non-dispositive and dispositive motions by
November 16, 2015, and counsel do not believe that they will be able to
accomplish those tasks in that limited time period;

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5 (Doc. 55.) The Court modified the deadlines as proposed by the parties, but because of the
6 additional time requested, the trial could not be accommodated until October 2016. (Doc. 56.)
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On November 13, 2015, the parties filed their seventh schedule modification request

8 seeking to extend only their expert discovery deadlines indicating they were having difficulty
9 scheduling expert depositions, particularly due to the holidays. The parties expressly indicated
10 they had "completed non expert discovery within the Court's deadline of November 9, 2015."
11 (Doc. 59.) This request was denied for lack of good cause. (Doc. 60.)
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On November 19, 2015, both parties filed ex parte applications seeking modification of the

13 schedule. They explained the expert reports served on November 13, 2015, were far more
14 extensive than anticipated. Defendant maintained it was clear from the reports that it would not be
15 able to serve requests for depositions and documents, prepare for the deposition of expert
16 witnesses on the extremely complicated and complex topics addressed in the expert reports, obtain
17 and designate supplemental experts, and defend the depositions noticed by Plaintiffs by the
18 December 3, 2015, deadline and also be able to file dispositive and non-dispositive motions by the
19 December 7, 2015, deadline. Plaintiffs joined Defendant's request, asserting that it "will take
20 substantial time, measured in weeks, not days to properly review [the forensic accountant expert's]
21 work in order to be ready for his deposition." (Doc. 62.) In seeking to reset only the expert
22 deadlines, the parties never sought to extend the non-expert discovery or noted that they were
23 having continued disputes over non-expert discovery matters; they represented their non-expert
24 discovery was completed. (Doc. 59.)
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On November 23, 2015, the Court issued an order noting its concerns about the parties'

26 repeated requests for schedule modifications:
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What the Court finds most concerning about the parties' renewed requests
for a schedule modification is the parties' pattern of underestimating the time
needed to perform tasks in this litigation. The expert discovery deadlines were
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modified less than one month ago – exactly as the parties proposed. The existing
deadlines were not arbitrarily selected by the Court – they were set based on
counsel's representation they had met and conferred meaningfully and had chosen
dates that were workable and feasible based on their schedules, their experts'
schedules, and counsel's knowledge about the nature and complexity of the issues
in the case. Only counsel are privy to all the details of their cases, and as such, the
Court relies on the parties to make careful assessments about the time necessary to
complete the litigation tasks when requesting a particular schedule be put into
effect.1

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The schedule change requested on October 21, 2015, proposed only a 20day period between expert disclosure and the close of expert discovery. The sheer
number of experts expected to be designated – without even knowing the details of
their reports – was probably a good indication this period was too short to complete
all the necessary tasks. The Court is not unsympathetic or unaware of the realities
of litigation where the unexpected often occurs. Yet the volume of schedule
modifications requested by the parties – five alone this year – weave a pattern
evidencing a lack of meaningful discussion and consideration of the schedule and
the nature of the case, rather than the occurrence of truly unforeseen events that
could not have been reasonably anticipated.

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From the Court's perspective, twenty days to review expert reports,
designate rebuttal experts, prepare for depositions, and complete all expert
discovery would be aggressive in nearly any case. Nonetheless, the parties know
their cases best and were the only ones privy to their meet and confer discussions in
proposing the schedule that is now in place. The Court modified the schedule less
than 30 days ago and for the fifth time this year based on the parties' representation
that the proposed dates were feasible and realistic given both the nature of the case
and the proximity of the deadlines to the holidays.

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Therefore, before a sixth extension of time will be granted under these
circumstances, proof that the parties have created a workable and feasible schedule
is required. To establish they have proposed a feasible expert discovery deadline of
January 11, 2016, the parties shall (1) provide the date when each currently
disclosed expert will be deposed, and (2) identify five days the parties agree will be
set aside for the deposition of any rebuttal witnesses. The five days set aside for
rebuttal expert depositions must be selected with sufficient time built in to review
any rebuttal expert reports and prepare for such depositions. The parties' schedule
modification requests will be entertained only when this supplemental information
has been provided.

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On November 25, 2015, the parties filed a supplemental statement setting forth exactly

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what expert discovery remained and provided a schedule for completing that discovery. Pursuant
to the parties' representations that this was the limit of the outstanding discovery, the Court
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The footnotes included in this portion of the November 23, 2015, order were omitted.

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1 modified the remaining scheduling deadlines for the seventh time.2

Expert discovery was

2 extended to January 15, 2016, non-dispositive and dispositive motion filing deadlines were
3 extended to January 25, 2016.3
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On December 21, 2015, Defendant filed a motion to compel documents and further non-

5 expert third-party deposition testimony pursuant to Rules 45 and 37. (Docs. 68, 71.) Defendant
6 deposed third-party witness Zane Averback, former counsel for Plaintiff Sona Vartanian in a state
7 court action, on October 30, 2015, just prior to the November 9, 2015, discovery deadline. A
8 subpoena was also issued requiring Mr. Averback to produce certain documents at the time of the
9 deposition.

(Doc. 71-1.)

During the deposition, Mr. Averback asserted the attorney-client

10 privilege with respect to certain of Defendant's counsel's questions, and certain documents were
11 not produced pursuant to an asserted privilege. Nearly two months after this deposition and after
12 the close of non-expert discovery, Defendant seeks to compel further testimony and documents
13 from Mr. Averback. It is this discovery motion that is pending before the Court.
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III.

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DISCUSSION

Although Defendant's motion is technically non-dispositive nature and was filed prior to

16 the deadline to file a non-dispositive motion, the motion seeks to compel further discovery months
17 after the non-expert discovery deadline has passed.4
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Defendant's Motion to Compel is Untimely

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Courts within the Ninth Circuit have frequently denied motions to compel filed after the

20 close of discovery. See, e.g., Kizzee v. Walmart, Inc., No. CV 10-0802-PHX-DGC, 2011 WL
21 3566881 (D. Ariz. Aug. 15, 2011) (denying motion to compel filed three months after the close of
22 discovery and after motions for summary judgment had been filed); Skinner v. Ryan, No. CV-0923
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This was the sixth modification to the schedule in 2015 alone.

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Non-expert discovery had closed on November 9, 2015, and the parties did not ask for that deadline to be extended,

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25 representing only deadlines related to experts needed modification.
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Case law clearly establishes that subpoenas under Rule 45 are discovery and must be utilized within the time period
permitted for discovery in a case. Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999)
(citing Marvin Lumber & Cedar Co. v. PPG Industries, Inc., 177 F.R.D. 443, 445 (D. Minn. 1997) (subpoenas under
Rule 45, invoking the authority of the court to obtain the pretrial production of documents and things, are discovery
within the definition of Fed. R. Civ. P. 26(a)(5) and are therefore subject to the time constraints that apply to all other
methods of formal discovery)).

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1 2152-PHX-SMM (LOA), 2010 WL 4602935 (D. Ariz. Nov. 5, 2010) (motion to compel filed over
2 three months after the deadline for bringing discovery disputes to the court's attention denied as
3 untimely); Christmas v. MERS, No. 2:09-cv-01389-RLH-GWF, 2010 WL 2695662 (D. Nev. July
4 2, 2010) (denying motion to compel filed after deadline for discovery and dispositive motions as
5 untimely).
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In Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 397 (N.D. Tex. 2006),

7 a motion to compel discovery filed two weeks after an extended discovery deadline was denied as
8 untimely. In a comprehensive analysis of cases throughout the federal judiciary, the district court
9 concluded "courts generally looked to the deadline for completion of discovery in considering
10 whether a motion to compel has been timely filed[,]" citing, among other cases, Packman v.
11 Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001) (finding no abuse of discretion in denying
12 a motion to compel discovery after discovery closed and defendants had filed their summary
13 judgment motion); Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000) (finding no
14 merit to the contention that the district court's denial of discovery motion was error where the
15 motion was filed after the date set by the court for the completion of discovery and plaintiffs gave
16 no excuse for tardiness); Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058 (7th Cir. 2000)
17 (finding no abuse of discretion in denying motion to compel filed after discovery closed and
18 summary judgment motion was filed); Ginett v. Federal Express, 166 F.3d 1213 (6th Cir. 1998)
19 (unpublished) (finding no abuse of discretion when the trial court denied a motion to compel filed
20 two months after the discovery deadline because the plaintiff knew of the document at issue long
21 before the discovery deadline); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st
22 Cir. 1996) (finding no abuse of discretion by the district court in denying "what was clearly
23 Appellants' untimely motion to compel document production" where "Appellants waited more
24 than one month after the second extended discovery deadline had elapsed to properly request an
25 order from the district court").
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The Days Inn Worldwide court identified several factors district courts and appellate courts

27 consider in analyzing the timeliness issue of a motion to compel: (1) the length of time since
28 expiration of the deadline; (2) the length of time the moving party has known about the discovery;
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1 (3) whether the discovery deadline has been previously extended; (4) the explanation for the
2 tardiness or delay; (5) the age of the case; (6) any prejudice to the party from whom the discovery
3 is sought; and (7) disruption of the court's schedule. Id. 237 F.R.D. at 398.
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Turning to the facts in this case, Defendant's motion to compel is untimely. Although filed

5 within the deadline for non-dispositive motions generally, the motion seeks to compel discovery
6 beyond the November 9, 2015, non-expert discovery deadline. Considering the factors identified
7 by Days Inn Worldwide solidifies this conclusion. Defendant's motion to compel was filed nearly
8 two months after non-expert discovery closed. Defendant was aware on October 30, 2015, the
9 date of the deposition, that certain information and testimony was withheld pursuant to a privilege,
10 yet no motion to compel was filed at that time. A party seeking to compel discovery must protect
11 itself by filing a motion promptly. Wells v. Sears Roebuck & Co., 203 F.R.D. 240, 241 (S.D.
12 Miss. 2001) (holding that "if the conduct of a respondent to discovery necessitates a motion to
13 compel, the requester of the discovery must protect himself by timely proceeding with the motion
14 to compel. If he fails to do so, he acts at his own peril"). In seeking extensions of the discovery
15 deadlines on November 13, 2015, not only did the parties request modification to only the expert
16 discovery deadlines, they specifically represented to the Court that all non-expert discovery had
17 been completed prior to November 9, 2015. (Doc. 59.) Defendant's motion to compel is a clear
18 indication this representation was false.
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As previously noted, the parties have demonstrated a long history of underestimating the

20 time necessary to complete tasks within their scheduling deadlines. The schedule has already been
21 modified seven times; the most recent modification was ordered on November 30, 2015, on the
22 express representation of the parties that only expert discovery was yet to be completed. No
23 mention of outstanding non-expert discovery issues was reported by the parties – in fact, they
24 maintained just the opposite.
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Defendant offers no explanation why this motion was filed nearly two months after the

26 deposition of Mr. Averbach, which occurred on October 30, 2015. Defendant has been aware of
27 Mr. Averbach's assertion of privilege since he invoked it at his deposition and never contacted the
28 Court or sought to challenge that assertion at any time prior to this motion.
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There is no

1 discernable reason why this motion could not have been filed two months ago, prior to the close of
2 discovery. See 8 A Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, Federal
3 Practice & Procedure § 2285 (3d ed.) (generally, if moving party unduly delays in filing motion
4 for an order compelling discovery, court may conclude the motion is untimely). Further, the Court
5 employs an informal discovery dispute process the parties could have requested without the formal
6 notice requirements of Rule 251, or Defendant could have contacted the Court on the date of Mr.
7 Averbach's deposition on October 30, 2015. See Rule 37(a)(3)(C) (providing the option to adjourn
8 the examination to move for an order compelling an answer before completing the deposition).
9 Defendant elected not to employ any of these options, however.
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Moreover, this case is nearly three years old: it was removed to the district court on June

11 27, 2013, after having been filed in state court on May 8, 2013. (Doc. 1.) The age of this case is
12 largely attributable to the parties' numerous requests to modify the schedule as it relates to non13 expert and expert discovery. While no motion for summary judgment has been filed yet, the
14 deadline to do so is January 25, 2016, only two weeks from now. Extending non-expert discovery
15 again will almost certainly require modification to the dispositive motion filing deadline, and may
16 implicate further expert discovery. Allowing discovery long after the deadline and after the
17 parties had previously represented discovery had been completed creates a disruption to the
18 orderly administration of this litigation and will potentially protract a case that has been pending
19 on this Court's docket for nearly three years. Simply put, Defendant's motion is untimely.
20 B.

Defendant Has Not Demonstrated Good Cause Necessary to Modify the Schedule

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Even if Defendant's motion to compel were considered timely – which it is not – the

22 further discovery sought by the motion will necessarily require modification to the scheduling
23 order because discovery has closed, and the dispositive motion filing deadline is imminent. See
24 Gucci America, Inc. v. Guess?, Inc., 790 F. Supp. 2d 136 (S.D.N.Y. 2011) (party seeking to file a
25 motion to compel after discovery has closed must establish good cause, even though the rule does
26 not establish time limits for such a motion).
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Pursuant to Rule 16, the Court is required to issue a scheduling order as soon as

28 practicable, and the order "must limit the time to join other parties, amend the pleadings, complete
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1 discovery, and file motions." Fed. R. Civ. P. 16(b)(3)(A). Once a scheduling order has been filed
2 pursuant to Rule 16, the "schedule may be modified only for good cause and with the judge's
3 consent." Fed. R. Civ. P. 16(b)(4). "Rule 16(b)'s 'good cause' standard primarily considers the
4 diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 975 F.2d
5 604, 609 (9th Cir. 1992). If the moving party fails to demonstrate diligence, "the inquiry should
6 end." Id. Good cause may be found, for example, where the moving party shows it assisted the
7 court with creating a workable scheduling order, that it is unable to comply with the scheduling
8 order's deadlines due to matters not reasonably foreseeable at the time the scheduling order was
9 issued, and that it was diligent in seeking modification once it became apparent it could not
10 comply with the scheduling order. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal.
11 1999).
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The parties made express representations to the Court in November regarding the

13 outstanding discovery: they claimed non-expert discovery was completed.

(Doc. 59.)

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14 representation was made after Mr. Averbach's deposition and the need for a motion to compel
15 further testimony was known to Defendant. Defendant has stated no reason why it took nearly
16 two months to file a motion to compel or why it was represented to the Court in seeking other
17 schedule modifications that non-expert discovery was completed when it apparently was not. For
18 all these reasons, the motion to compel is untimely, and Defendant has not demonstrated diligence
19 to support an eighth extension of the case deadlines.
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In these days of heavy caseloads, trial courts in both the federal and state system
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 the scheduling and other orders, and that failure to do so may properly
support severe sanctions and exclusions of evidence.

25 Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005).
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IV.

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CONCLUSION AND ORDER

For the reasons set forth above, IT IS HEREBY ORDERED that Defendant's motion to

3 compel is DENIED as untimely and there is no good cause to support a schedule modification.
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IT IS SO ORDERED.

6 Dated:

January 11, 2016

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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