Best Buy Stores, L.P. v. Manteca Lifestyle Center, LLC

Filing 172

ORDER signed by Magistrate Judge Kendall J. Newman on 5/16/12 re 170 MOTION to COMPEL: The parties are HEREBY ORDERED to specifically address the following issues in their Joint Statement re Discovery Disagreement: (1) whether the parties agree tha t defendant was entitled to serve discovery requests and a deposition notice without leave of court and is entitled to pursue its motion to compel outside of the close of discovery; and (2) what "manifest injustice" justifies permitting def endant to conduct additional discovery on the eve of trial, as required by the Second Amended Final Pretrial Order. The court expects that the parties will present clearer and more complete, but nevertheless efficient, picture of the procedural history than was presented in the notice of motion and motion. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BEST BUY STORES, L.P., a Virginia
Limited Partnership,

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Plaintiff,

No. 2:10-cv-00389 WBS KJN

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v.
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MANTECA LIFESTYLE CENTER,
LLC,

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Defendant.

ORDER
/

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On May 15, 2012, defendant re-filed its motion to compel a further deposition of

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plaintiff and responses to requests for production regarding recent closures of certain Best Buy

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Stores (Dkt. No. 170), which had previously been denied without prejudice (Order, Apr. 26,

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2012, Dkt. No. 166).1 Defendant noticed that motion for a June 7, 2012 hearing.2

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With certain limited exceptions, discovery in this case closed on October 31,
2011, and trial is scheduled to begin before the district judge on June 12, 2012. (See Second Am.

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This case was referred to 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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Oddly, defendant seeks an order that, in part, requires plaintiff to produce documents on
June 6, 2012, one day prior to the hearing on defendant’s motion to compel. (Mot. to Compel at 3.)
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Final Pretrial Order at 8, Dkt. No. 169; see also Stip. & Order, Nov. 2, 2011, Dkt. No. 72; Order,

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Aug. 4, 2011, at 2, Dkt. No. 56.) Nevertheless, defendant recently filed its motion to compel,

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citing the minutes of a final pretrial conference as authorizing defendant to file its motion beyond

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the close of discovery.3 (See Mot. to Compel at 2 (citing Minutes, Apr. 16, 2012, Dkt. No. 158).)

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Additionally, defendant represents that “[f]ollowing issuance of the Final Pretrial Order, the

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parties agreed to a stipulation to amend Section X of the Final Pretrial Order on discovery to

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include the language from the Minute Order.” (Id. (citing Joint Sugg. Modifications to Final

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Pretrial Order, Dkt. No. 162).) The parties’ stipulation proposed the following modification in

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regards to Section X of the Final Pretrial Order, addressed to “Further Discovery and Motions”:

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“Notwithstanding the foregoing, the Court grants leave to Defendant to reopen discovery and to

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submit any discovery motions before the assigned Magistrate Judge, Kendall J, Newman.” (Joint

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Sugg. Modifications to Final Pretrial Order at 2.)

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Defendant’s motion presents an incomplete procedural history in regards to the

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purported reopening of discovery. First, the minutes of the final pretrial conference relied on by

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defendant, i.e., pertaining to the reopening of discovery, were not ultimately adopted in the Final

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Pretrial Order or the Second Amended Final Pretrial Order. (Compare Minutes, Apr. 16, 2012,

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with Final Pretrial Order at 7, Dkt. No. 159, and Second Am. Final Pretrial Order at 7; see also

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Pl.’s Objections to Apr. 25, 2012 Am. Final Pretrial Order, Dkt. No. 168.)4 In relevant part, the

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Second Amended Final Pretrial Order provides:

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X.

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Further Discovery and Motions

Except for motions in limine, no further motions shall be brought
before trial except upon order of the court and upon a showing of manifest

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Defendant incorrectly refers to the minutes of the final pretrial conference as a “minute
order.” (See Mot. to Compel at 2.)

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Notably, the district judge struck, upon plaintiff’s objection, language from the Amended
Final Pretrial Order that permitted defendant to conduct additional discovery regarding the store
closures at the heart of this dispute. (Compare Am. Final Pretrial Order § X, Dkt. No. 165, with
Second Am. Final Pretrial Order § X.)
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injustice. Fed. R. Civ. P. 16(e). No further discovery will be permitted
except by the express stipulation of all parties or upon order of the court
and upon a showing of manifest injustice. Id.

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(Second Am. Final Pretrial Order at 7 (emphasis added).) Also apparent from this portion of the

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Second Amended Final Pretrial Order is that the district judge did not adopt the parties’

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suggested modification of the Second Amended Pretrial Order quoted above.

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Based on the foregoing, it is not readily apparent to the court that defendant is

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entitled to pursue additional discovery at this point in the litigation, with a potential deposition

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document production to occur within five days of the beginning of trial. Accordingly, the parties

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are HEREBY ORDERED to specifically address the following issues in their Joint Statement re

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Discovery Disagreement: (1) whether the parties agree that defendant was entitled to serve

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discovery requests and a deposition notice without leave of court and is entitled to pursue its

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motion to compel outside of the close of discovery; and (2) what “manifest injustice” justifies

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permitting defendant to conduct additional discovery on the eve of trial, as required by the

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Second Amended Final Pretrial Order. The court expects that the parties will present clearer and

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more complete, but nevertheless efficient, picture of the procedural history than was presented in

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the notice of motion and motion.

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IT IS SO ORDERED.
DATED: May 16, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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