Winding v. Allstate

Filing 143

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 8/3/2012 ORDERING that on or before 8/7/2012, at 5:00 p.m., Allstate shall show cause in writing why its motion to compel a property inspection is properly before the court. Specifically, Allstate must identify an order of this court that reopened discovery in a manner that permits Allstate to file a motion to compel compliance with a property inspection. (Zignago, 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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JACOB WINDING,

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Plaintiff,

No. 2:09-cv-03526 KJM KJN PS

v.
ALLSTATE INSURANCE COMPANY
and DOES 1 through 25, inclusive,

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Defendants,

ORDER TO SHOW CAUSE

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AND RELATED COUNTERCLAIM

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/

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On August 2, 2012, defendant and counter-claimant Allstate Insurance Company

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(“Allstate”) filed a motion to compel plaintiff’s compliance with Allstate’s request to permit its

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“attorneys, agents, employees, consultants and/or experts to enter upon and inspect the property

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located at 1127 W. Harding Way in Stockton, California.”1 (Mot. to Compel at 1, Dkt. No. 142).

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Allstate also seeks sanctions. Allstate noticed its motion for an August 30, 2012 hearing date.

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On June 7, 2012, United States District Judge Kimberly J. Mueller reopened
discovery in this case for 90 days, to approximately September 5, 2012, but for a very limited

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This matter proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(1) and 28 U.S.C. § 636(b)(1).
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purpose. (Memo. & Order, Dkt. No. 138.) Judge Mueller reopened discovery so that Allstate

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could depose witnesses that plaintiff failed to disclose until just prior to trial. (Memo. & Order

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at 2 (“Here, the court finds that good cause exists to grant defendant’s request to reopen

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discovery. Without the opportunity to depose those witnesses plaintiff intends to disclose,

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defendant would be genuinely prejudiced at trial. Indeed, at the final pretrial conference, the

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court intimated that it would be willing to reopen discovery for the limited purpose of deposing

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those witnesses plaintiff failed to properly disclose. (ECF 132 at 4:24-5:13.) As such,

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defendant’s motion to reopen discovery for 90 days is granted.”); see also Order, July 18, 2012,

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at 1, Dkt. No. 141 (denying plaintiff’s motion for reconsideration and stating that “[o]n June 8,

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2012, the court granted defendant’s motion to reopen discovery so that defendant could depose

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certain witnesses plaintiff failed to previously disclose”). Indeed, Judge Mueller’s order was in

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response to Allstate’s motion to reopen discovery, which only sought the relief ultimately

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granted. (Allstate’s Mot. to Reopen Discovery at 2 (“By this motion, Allstate seeks to re-open

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discovery in this insurance ‘bad faith’ case to allow depositions of certain individuals whom

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plaintiff failed to disclose properly before discovery closed, yet intends to produce at trial.”); see

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id. (“Allstate respectfully requests that the Court reopen discovery for a brief period of ninety

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days to allow for the depositions of plaintiff’s belatedly-disclosed witnesses.”).)

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Judge Mueller reopened discovery for a limited purpose that does not include

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filing a motion to compel a property inspection that was noticed after the close of discovery.

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Nothing prohibits the parties from agreeing to such an inspection without court intervention.

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However, nothing in Judge Mueller’s orders suggests that discovery was reopened in a manner

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that permitted Allstate to file its motion to compel. As a result, the undersigned is strongly

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inclined to deny Allstate’s motion without prejudice to Allstate seeking an order from Judge

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Mueller reopening discovery for a broader purpose.

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Accordingly, IT IS HEREBY ORDERED that on or before August 7, 2012, at
5:00 p.m., Allstate shall show cause in writing why its motion to compel a property inspection is
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properly before the court. Specifically, Allstate must identify an order of this court that reopened

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discovery in a manner that permits Allstate to file a motion to compel compliance with a property

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inspection.

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IT IS SO ORDERED.
DATED: August 3, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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