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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Brandy Brewer,
Plaintiff,

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v.

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Leprino Foods Company, Inc.,
Defendant.

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No. CV-1:16-1091-SMM

ORDER

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Pending before the Court is Plaintiff Brandy Brewer’s (“Brewer”) Ex Parte

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Application to Extend the Non-Expert Discovery Cut-Off Date. (Doc. 20.) Defendant

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Leprino Foods Company, Inc. (“Leprino Foods”) opposes an extension of the non-expert

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discovery cut-off deadline. (Doc. 22.)

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Discussion

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Brewer states that she needs an extension of the non-expert discovery cut-off deadline

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in order to depose Supervisor Don Doyle, Manager Kes Anderson, and the following

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nonparty employees, Oscar Martinez, Edgar Vega, A.C. Chavez, Gabriel Cervantes, and

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Elmer Meade. (Doc. 20.) In support of good cause, Brewer states that Leprino Foods will not

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accept service of subpoenas on behalf of the nonparty employees and further that she is not

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allowed to serve subpoenas to the employees at their place of employment. Thus, she must

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now hire an investigator in order to locate and serve the subpoenas at the home addresses of

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the employees, which cannot be accomplished inside of the non-expert discovery cut-off

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deadline.

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Leprino Foods initially submits that the parties have agreed to a deposition of

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Supervisor Don Doyle on May 19, 2017, in Roswell, New Mexico, where Mr. Doyle is now

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located. (Doc. 22 at 4.) However, Leprino Foods opposes any further extension of the non-

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expert discovery deadline. (Id.) According to Leprino Foods, good cause has not been

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established because Brewer waited until one month before expiration of the deadline to

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initiate the scheduling of depositions of the nonparty employee witnesses. (Id.) When Brewer

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asked defense counsel to accept service, counsel advised that it was not authorized to accept

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subpoenas for nonparty witnesses. (Id. at 8.) In addition, regardless of the nature of the

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subpoena, Leprino Foods states that it does not accept subpoenas at the production facility

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for any individual employee. (Id.) Regarding Manager Kes Anderson, Leprino Foods states

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that it opposes his deposition as it was noticed only 10 days prior to expiration of the non-

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expert discovery deadline. (Id.)

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Alternatively, Leprino Foods requests that if the Court extends the non-expert

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discovery deadline, that it be done not for all purposes but to accommodate only (1) the

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nonparty employee witness depositions for which Brewer served subpoenas prior to the April

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14, 2017 non-expert discovery cut-off; and (2) the deposition of out-of-state defense witness

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Don Doyle. (Id. at 5.)

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At issue is whether Brewer’s noncompliance with a Rule 16 case management

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deadline occurred due to development of matters which she could not have reasonably

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foreseen and whether she was diligent in seeking amendment of the Rule 16 Order once it

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became apparent that she could not comply with the Order. See Jackson v. Laureate, Inc.,

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186 F.R.D. 605, 608 (E.D. Cal. 1999).

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First, based on the parties’ agreement, Supervisor Don Doyle may be deposed outside

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the non-expert discovery deadline. Next, based on all the facts and circumstances

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surrounding Brewer’s attempts to subpoena the nonparty employee witnesses, the Court will

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exercise its discretion and find that Brewer is entitled to limited relief, and will be allowed

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additional time to subpoena and depose the listed nonparty witnesses. However, the Court

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does not find that Brewer is entitled to relief regarding her late notice regarding her proposed
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deposition of Manager Kes Anderson.

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Accordingly,

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IT IS HEREBY ORDERED granting in part and denying in part Plaintiff’s Ex Parte

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Application to Extend the Non-Expert Discovery Cut-Off Date. (Doc. 20.)

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IT IS FURTHER ORDERED granting Plaintiff limited relief from the Non-Expert

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Discovery Cut-Off Date, as follows: (1) By Friday, May 19, 2017, Plaintiff shall depose

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Supervisor Don Doyle, in Roswell, New Mexico; (2) By Friday, June 30, 2017, Plaintiff

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shall locate, subpoena, and conduct a maximum 4-hour deposition of the following nonparty

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employee witnesses, Oscar Martinez, Edgar Vega, A.C. Chavez, Gabriel Cervantes, and

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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.

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IT IS FURTHER ORDERED that due to the limited non-expert discovery relief

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granted to Plaintiff, initial expert witness disclosures shall now be served no later than

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Friday, July 28, 2017. Rebuttal expert witness disclosures shall be served no later than

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Friday, August 11, 2017. All expert discovery shall be completed no later than Friday,

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September 22, 2017. The Dispositive Pre-Trial Motion deadline is now Friday, October

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27, 2017.

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DATED this 26th day of April, 2017.

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