Brandy Brewer v. Leprino Foods Company, Inc.

Filing 23

ORDER granting in part and denying in part 20 Ex Parte Application to Extend the Non-Expert Discovery Cut-Off Date signed by Senior Judge Stephen M. McNamee on 4/26/2017. (Lundstrom, T)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 Brandy Brewer, Plaintiff, 10 11 v. 12 Leprino Foods Company, Inc., Defendant. 13 14 ) ) ) ) ) ) ) ) ) ) No. CV-1:16-1091-SMM ORDER 15 Pending before the Court is Plaintiff Brandy Brewer’s (“Brewer”) Ex Parte 16 Application to Extend the Non-Expert Discovery Cut-Off Date. (Doc. 20.) Defendant 17 Leprino Foods Company, Inc. (“Leprino Foods”) opposes an extension of the non-expert 18 discovery cut-off deadline. (Doc. 22.) 19 Discussion 20 Brewer states that she needs an extension of the non-expert discovery cut-off deadline 21 in order to depose Supervisor Don Doyle, Manager Kes Anderson, and the following 22 nonparty employees, Oscar Martinez, Edgar Vega, A.C. Chavez, Gabriel Cervantes, and 23 Elmer Meade. (Doc. 20.) In support of good cause, Brewer states that Leprino Foods will not 24 accept service of subpoenas on behalf of the nonparty employees and further that she is not 25 allowed to serve subpoenas to the employees at their place of employment. Thus, she must 26 now hire an investigator in order to locate and serve the subpoenas at the home addresses of 27 the employees, which cannot be accomplished inside of the non-expert discovery cut-off 28 deadline. 1 Leprino Foods initially submits that the parties have agreed to a deposition of 2 Supervisor Don Doyle on May 19, 2017, in Roswell, New Mexico, where Mr. Doyle is now 3 located. (Doc. 22 at 4.) However, Leprino Foods opposes any further extension of the non- 4 expert discovery deadline. (Id.) According to Leprino Foods, good cause has not been 5 established because Brewer waited until one month before expiration of the deadline to 6 initiate the scheduling of depositions of the nonparty employee witnesses. (Id.) When Brewer 7 asked defense counsel to accept service, counsel advised that it was not authorized to accept 8 subpoenas for nonparty witnesses. (Id. at 8.) In addition, regardless of the nature of the 9 subpoena, Leprino Foods states that it does not accept subpoenas at the production facility 10 for any individual employee. (Id.) Regarding Manager Kes Anderson, Leprino Foods states 11 that it opposes his deposition as it was noticed only 10 days prior to expiration of the non- 12 expert discovery deadline. (Id.) 13 Alternatively, Leprino Foods requests that if the Court extends the non-expert 14 discovery deadline, that it be done not for all purposes but to accommodate only (1) the 15 nonparty employee witness depositions for which Brewer served subpoenas prior to the April 16 14, 2017 non-expert discovery cut-off; and (2) the deposition of out-of-state defense witness 17 Don Doyle. (Id. at 5.) 18 At issue is whether Brewer’s noncompliance with a Rule 16 case management 19 deadline occurred due to development of matters which she could not have reasonably 20 foreseen and whether she was diligent in seeking amendment of the Rule 16 Order once it 21 became apparent that she could not comply with the Order. See Jackson v. Laureate, Inc., 22 186 F.R.D. 605, 608 (E.D. Cal. 1999). 23 First, based on the parties’ agreement, Supervisor Don Doyle may be deposed outside 24 the non-expert discovery deadline. Next, based on all the facts and circumstances 25 surrounding Brewer’s attempts to subpoena the nonparty employee witnesses, the Court will 26 exercise its discretion and find that Brewer is entitled to limited relief, and will be allowed 27 additional time to subpoena and depose the listed nonparty witnesses. However, the Court 28 does not find that Brewer is entitled to relief regarding her late notice regarding her proposed -2- 1 deposition of Manager Kes Anderson. 2 Accordingly, 3 IT IS HEREBY ORDERED granting in part and denying in part Plaintiff’s Ex Parte 4 Application to Extend the Non-Expert Discovery Cut-Off Date. (Doc. 20.) 5 IT IS FURTHER ORDERED granting Plaintiff limited relief from the Non-Expert 6 Discovery Cut-Off Date, as follows: (1) By Friday, May 19, 2017, Plaintiff shall depose 7 Supervisor Don Doyle, in Roswell, New Mexico; (2) By Friday, June 30, 2017, Plaintiff 8 shall locate, subpoena, and conduct a maximum 4-hour deposition of the following nonparty 9 employee witnesses, Oscar Martinez, Edgar Vega, A.C. Chavez, Gabriel Cervantes, and 10 11 12 13 14 Elmer Meade. IT IS FURTHER ORDERED denying for all purposes extension of the Non-Expert Discovery Cut-Off Date; it remains closed as of April 14, 2017. IT IS FURTHER ORDERED denying Plaintiff’s Ex Parte Application to depose Manager Kes Anderson outside of the Non-Expert Discovery Cut-Off Date. 15 IT IS FURTHER ORDERED that due to the limited non-expert discovery relief 16 granted to Plaintiff, initial expert witness disclosures shall now be served no later than 17 Friday, July 28, 2017. Rebuttal expert witness disclosures shall be served no later than 18 Friday, August 11, 2017. All expert discovery shall be completed no later than Friday, 19 September 22, 2017. The Dispositive Pre-Trial Motion deadline is now Friday, October 20 27, 2017. 21 DATED this 26th day of April, 2017. 22 23 24 25 26 27 28 -3-

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