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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNEST P. SANCHEZ, individually,
Plaintiff,

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No. CIV S-09-1454 KJM DAD

vs.
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AVIVA LIFE AND ANNUITY
COMPANY, a foreign entity of unknown
origin, et al.,

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Defendants.

ORDER
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Plaintiff has filed a motion for an order shortening time to hear his simultaneously

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filed motion to extend the discovery cut-off in this case. The court determined that the matter

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could be submitted without oral argument.

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I. Background

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The initial class-action complaint in this case, first filed in Sacramento County

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Superior Court, contained claims for breach of fiduciary duty, negligence, rescission for mistake

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or fraud and violations of the Unfair Competition Law, California Business & Professions Code

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§§ 17200 et seq., and the Consumer Legal Remedies Act, California Civil Code § 1750 et seq.

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The named defendants are Aviva Life and Annuity Company (Aviva), Loomis Wealth Solutions,

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Inc., Lawrence Loomis, Naras Secured Fund #2, Lismar Financial Services, Nationwide Lending

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Group, and Does 1 through 1000. ECF No. 1. Aviva removed the case to this court on May 27,
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2009, under the Class Action Fairness Act, 28 U.S.C. § 1332. Aviva promptly filed a motion to

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dismiss and plaintiff filed a motion to remand. ECF Nos. 12, 16. While the motion to dismiss

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was pending, plaintiff filed a first amended complaint and Aviva filed a motion to dismiss it.

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ECF Nos. 53, 61. The court granted Aviva’s motion but gave plaintiff leave to file a second

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amended complaint. ECF No. 71. Sanchez filed the second amended complaint on April 2,

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2010, and Aviva filed another motion to dismiss, which was granted in part and denied in part.

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ECF Nos. 84, 87, 93. Aviva filed its answer on July 21, 2010.1 ECF 95.

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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

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suggested he might need additional interrogatories and more deposition hours than the minimum

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provided for in the rules, and contemplated seeking an order permitting additional discovery.

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ECF No. 96 at 4.2 The parties could not agree on a calendar for the litigation. Aviva proposed

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May 27, 2011 as the cut-off for non-expert discovery while plaintiff proposed December 14,

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2010. Id. at 5.
The court issued its pretrial scheduling order on July 30, 2010; it set March 1,

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2011 as the last day for non-expert discovery. ECF 97 at 2.

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On March 2, 2011, plaintiff filed an ex parte application to shorten time to hear a

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motion to extend the discovery cut-off and on the same day filed the motion to extend. Counsel

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avers that he could not undertake discovery until mid-August 2010, after the exchange of initial

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disclosures, but that after reviewing the information provided, he propounded written discovery

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on September 7 and 8, 2010. Declaration of Lawrence Salisbury (Salisbury Decl.) ¶¶ 4-5.

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Defendant responded in November with some information, but made numerous objections as

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well. Id. ¶ 5. Thereafter, counsel for both parties met and conferred at least five times from

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The other defendants have not appeared in this action.

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Page references are to those assigned by the court’s ECF system, unless otherwise

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noted.
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November 23, 2010 through February 10, 2011. Id. ¶ 6. By February 14, the parties resolved

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several of their differences and formalized the scope of their disagreement by February 16, 2011.

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Id. ¶ 7. Salisbury opines that, given the breadth and complexity of the document requests, it was

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prudent to wait until any issues regarding those requests were resolved before scheduling

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depositions. He has not yet deposed anyone from Aviva, although he has asked counsel for

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potential dates. Id. ¶ 8.

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Aviva’s counsel counters that the parties’ Rule 26(f) scheduling conference was

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conducted in July 2010, initial disclosures were exchanged on August 18, 2010, and that in

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connection with the disclosures, Aviva produced thousands of pages of documents. Declaration

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of Bonnie Lau (Lau Decl.) ¶¶ 2-3. In response to plaintiff’s requests on September 7 and 8,

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2010, Aviva provided substantive responses and agreed to produce documents relating to the

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relationship (if any) between Aviva and the other defendants, financial arrangements between

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Aviva and the other defendants, Loomis’s seminars, and Aviva’s policies regarding the sale of its

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insurance policies. Id. ¶ 6. Aviva also objected to a number of the requests for admissions,

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interrogatories and requests for documents, including requests for documents about “‘all third

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parties in any way related to the allegations alleged in the complaint.’” Id. ¶ 9. Plaintiff’s

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counsel did not provide a list of names of “third parties” until December 2010; even then, the list

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contained 150 names, some of which were not identified adequately enough to allow Aviva’s

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conduct of a well-informed search for responsive material. Id. ¶¶ 9-10 & Exs. A & B. Aviva

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provided supplemental responses to this request on February 16, 2011. Id. ¶ 11. Plaintiff’s

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counsel did not ask about taking Aviva’s deposition until January 20, 2011, and despite Aviva’s

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counsel’s prompt reply, asking for a 30(b)(6)3 deposition notice, plaintiff’s counsel has never

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provided a list of proposed deposition topics. Id. ¶¶ 13-15 & Ex. C. Plaintiff did not ask for a

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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 . . . .”
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stipulation to extend the discovery cut-off until the afternoon of February 28, 2011, one day

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before the March 1 cutoff. Id. ¶ 17.

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II. Analysis

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Under Rule 16(b) of the Federal Rules of Civil Procedure, a pretrial scheduling

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order shall not be modified except upon a showing of good cause. In Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604 (9th Cir. 1992), the Ninth Circuit described Rule 16(b)’s good

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cause standard as focusing on “the diligence of the party seeking the amendment.” It recognized

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that while “the existence or degree of prejudice to the party opposing the modification might

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supply additional reasons to deny a motion, the focus is upon the moving party’s reasons . . . . If

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that party was not diligent, the inquiry should end.” Id. at 609; see also Ultimax Cement

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Manufacturing Corporation v. CTS Cement Manufacturing, 587 F.3d 1339, 1354 (9th Cir. 2010)

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(“‘good cause’ has been defeated by undue delay in moving to amend. . . .”).

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Plaintiff has not shown good cause under this standard. He waited until the day

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before the discovery cutoff to ask for a stipulation to extend the deadline and did not file his

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motion for an extension until after the period had expired, even though he realized at the time the

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joint status report was filed that he might need to pursue discovery outside of the schedule and

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limitations of the federal rules. Moreover, although plaintiff’s counsel says generally that it was

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not prudent to schedule depositions until he had reviewed the written discovery, he does not

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explain why his review of the materials provided was insufficient to allow him to move forward

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with depositions. See Photomedex, Inc. v. Irwin, 2007 WL 2238359, at *2 (S.D. Cal. 2007)

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(strategic decisions do not always demonstrate diligence or good cause). Finally, when plaintiff

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did ask Aviva’s counsel about scheduling depositions, he did not provide the information

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necessary to identify the appropriate persons to respond to a corporate deposition notice, despite

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Aviva’s counsel’s inquiry.

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III. Miscellaneous

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In light of the reassignment of this case to this court, the dates currently set for
pretrial conference and trial must be reset.

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IT IS THEREFORE ORDERED that:

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1. Plaintiff’s motion to shorten time (ECF No. 114) is granted.

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2. Plaintiff’s motion to extend the discovery cut-off (ECF No. 117) is denied.

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3. The final pretrial conference is reset from September 16 to September 14,

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2011 at 11:00 a.m. in Courtroom Three.

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4. The trial date is reset from November 29, 2011 to November 28, 2011 at

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9:00 a.m.

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DATED: May 3, 2011.

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UNITED STATES DISTRICT JUDGE

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sanc1454.mte

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