Sanchez v. Aviva Life and Annuity Company et al

Filing 127

ORDER signed by District Judge Kimberly J. Mueller on 5/3/11 ORDERING Pltf's motion to shorten time 114 is GRANTED; Pltf's motion to extend discovery cut-off 117 is DENIED; the final pretrial conference is RE-SET to 9/14/11 at 11:00 IN Courtroom 3 before District Judge Kimberly J. Mueller; and the trial date is RE-SET from 11/29/11 to 11/28/11 at 9:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. (Carlos, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ERNEST P. SANCHEZ, individually, Plaintiff, 11 No. CIV S-09-1454 KJM DAD vs. 12 13 AVIVA LIFE AND ANNUITY COMPANY, a foreign entity of unknown origin, et al., 14 Defendants. ORDER / 15 Plaintiff has filed a motion for an order shortening time to hear his simultaneously 16 17 filed motion to extend the discovery cut-off in this case. The court determined that the matter 18 could be submitted without oral argument. 19 I. Background 20 The initial class-action complaint in this case, first filed in Sacramento County 21 Superior Court, contained claims for breach of fiduciary duty, negligence, rescission for mistake 22 or fraud and violations of the Unfair Competition Law, California Business & Professions Code 23 §§ 17200 et seq., and the Consumer Legal Remedies Act, California Civil Code § 1750 et seq. 24 The named defendants are Aviva Life and Annuity Company (Aviva), Loomis Wealth Solutions, 25 Inc., Lawrence Loomis, Naras Secured Fund #2, Lismar Financial Services, Nationwide Lending 26 Group, and Does 1 through 1000. ECF No. 1. Aviva removed the case to this court on May 27, 1 1 2009, under the Class Action Fairness Act, 28 U.S.C. § 1332. Aviva promptly filed a motion to 2 dismiss and plaintiff filed a motion to remand. ECF Nos. 12, 16. While the motion to dismiss 3 was pending, plaintiff filed a first amended complaint and Aviva filed a motion to dismiss it. 4 ECF Nos. 53, 61. The court granted Aviva’s motion but gave plaintiff leave to file a second 5 amended complaint. ECF No. 71. Sanchez filed the second amended complaint on April 2, 6 2010, and Aviva filed another motion to dismiss, which was granted in part and denied in part. 7 ECF Nos. 84, 87, 93. Aviva filed its answer on July 21, 2010.1 ECF 95. 8 9 In their joint status report filed July 29, 2010, the parties agreed to make initial disclosures under Federal Rule of Civil Procedure 26(a)(1) on August 16, 2010. Plaintiff 10 suggested he might need additional interrogatories and more deposition hours than the minimum 11 provided for in the rules, and contemplated seeking an order permitting additional discovery. 12 ECF No. 96 at 4.2 The parties could not agree on a calendar for the litigation. Aviva proposed 13 May 27, 2011 as the cut-off for non-expert discovery while plaintiff proposed December 14, 14 2010. Id. at 5. The court issued its pretrial scheduling order on July 30, 2010; it set March 1, 15 16 2011 as the last day for non-expert discovery. ECF 97 at 2. 17 On March 2, 2011, plaintiff filed an ex parte application to shorten time to hear a 18 motion to extend the discovery cut-off and on the same day filed the motion to extend. Counsel 19 avers that he could not undertake discovery until mid-August 2010, after the exchange of initial 20 disclosures, but that after reviewing the information provided, he propounded written discovery 21 on September 7 and 8, 2010. Declaration of Lawrence Salisbury (Salisbury Decl.) ¶¶ 4-5. 22 Defendant responded in November with some information, but made numerous objections as 23 well. Id. ¶ 5. Thereafter, counsel for both parties met and conferred at least five times from 24 1 The other defendants have not appeared in this action. 2 Page references are to those assigned by the court’s ECF system, unless otherwise 25 26 noted. 2 1 November 23, 2010 through February 10, 2011. Id. ¶ 6. By February 14, the parties resolved 2 several of their differences and formalized the scope of their disagreement by February 16, 2011. 3 Id. ¶ 7. Salisbury opines that, given the breadth and complexity of the document requests, it was 4 prudent to wait until any issues regarding those requests were resolved before scheduling 5 depositions. He has not yet deposed anyone from Aviva, although he has asked counsel for 6 potential dates. Id. ¶ 8. 7 Aviva’s counsel counters that the parties’ Rule 26(f) scheduling conference was 8 conducted in July 2010, initial disclosures were exchanged on August 18, 2010, and that in 9 connection with the disclosures, Aviva produced thousands of pages of documents. Declaration 10 of Bonnie Lau (Lau Decl.) ¶¶ 2-3. In response to plaintiff’s requests on September 7 and 8, 11 2010, Aviva provided substantive responses and agreed to produce documents relating to the 12 relationship (if any) between Aviva and the other defendants, financial arrangements between 13 Aviva and the other defendants, Loomis’s seminars, and Aviva’s policies regarding the sale of its 14 insurance policies. Id. ¶ 6. Aviva also objected to a number of the requests for admissions, 15 interrogatories and requests for documents, including requests for documents about “‘all third 16 parties in any way related to the allegations alleged in the complaint.’” Id. ¶ 9. Plaintiff’s 17 counsel did not provide a list of names of “third parties” until December 2010; even then, the list 18 contained 150 names, some of which were not identified adequately enough to allow Aviva’s 19 conduct of a well-informed search for responsive material. Id. ¶¶ 9-10 & Exs. A & B. Aviva 20 provided supplemental responses to this request on February 16, 2011. Id. ¶ 11. Plaintiff’s 21 counsel did not ask about taking Aviva’s deposition until January 20, 2011, and despite Aviva’s 22 counsel’s prompt reply, asking for a 30(b)(6)3 deposition notice, plaintiff’s counsel has never 23 provided a list of proposed deposition topics. Id. ¶¶ 13-15 & Ex. C. Plaintiff did not ask for a 24 3 25 26 Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that when a party seeks to depose a corporation, it “must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers . . . or designate other persons who consent to testify on its behalf . . . .” 3 1 stipulation to extend the discovery cut-off until the afternoon of February 28, 2011, one day 2 before the March 1 cutoff. Id. ¶ 17. 3 II. Analysis 4 Under Rule 16(b) of the Federal Rules of Civil Procedure, a pretrial scheduling 5 order shall not be modified except upon a showing of good cause. In Johnson v. Mammoth 6 Recreations, Inc., 975 F.2d 604 (9th Cir. 1992), the Ninth Circuit described Rule 16(b)’s good 7 cause standard as focusing on “the diligence of the party seeking the amendment.” It recognized 8 that while “the existence or degree of prejudice to the party opposing the modification might 9 supply additional reasons to deny a motion, the focus is upon the moving party’s reasons . . . . If 10 that party was not diligent, the inquiry should end.” Id. at 609; see also Ultimax Cement 11 Manufacturing Corporation v. CTS Cement Manufacturing, 587 F.3d 1339, 1354 (9th Cir. 2010) 12 (“‘good cause’ has been defeated by undue delay in moving to amend. . . .”). 13 Plaintiff has not shown good cause under this standard. He waited until the day 14 before the discovery cutoff to ask for a stipulation to extend the deadline and did not file his 15 motion for an extension until after the period had expired, even though he realized at the time the 16 joint status report was filed that he might need to pursue discovery outside of the schedule and 17 limitations of the federal rules. Moreover, although plaintiff’s counsel says generally that it was 18 not prudent to schedule depositions until he had reviewed the written discovery, he does not 19 explain why his review of the materials provided was insufficient to allow him to move forward 20 with depositions. See Photomedex, Inc. v. Irwin, 2007 WL 2238359, at *2 (S.D. Cal. 2007) 21 (strategic decisions do not always demonstrate diligence or good cause). Finally, when plaintiff 22 did ask Aviva’s counsel about scheduling depositions, he did not provide the information 23 necessary to identify the appropriate persons to respond to a corporate deposition notice, despite 24 Aviva’s counsel’s inquiry. 25 ///// 26 ///// 4 1 III. Miscellaneous 2 3 In light of the reassignment of this case to this court, the dates currently set for pretrial conference and trial must be reset. 4 IT IS THEREFORE ORDERED that: 5 1. Plaintiff’s motion to shorten time (ECF No. 114) is granted. 6 2. Plaintiff’s motion to extend the discovery cut-off (ECF No. 117) is denied. 7 3. The final pretrial conference is reset from September 16 to September 14, 8 2011 at 11:00 a.m. in Courtroom Three. 9 4. The trial date is reset from November 29, 2011 to November 28, 2011 at 10 9:00 a.m. 11 DATED: May 3, 2011. 12 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 2 25 sanc1454.mte 26 5

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