Williamsburg National Insurance Company v. Rocket Engineering Corp.

Filing 26

ORDER signed by Magistrate Judge Kendall J. Newman on 9/18/2017 DENYING defendant's 19 motion for terminating sanctions, without prejudice as untimely. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAMSBURG NATIONAL
INSURANCE COMPANY
Plaintiff,

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No. 2:16-cv-1052-KJM-KJN

ORDER
v.
ROCKET ENGINEERING CORP.,
Defendant.

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Presently pending before the court is defendant’s motion for terminating sanctions, or in

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the alternative, an adverse inference jury instruction, based on plaintiff’s alleged alteration,

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destruction, and spoliation of evidence. (ECF No. 19.) The motion has been noticed for hearing

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on December 14, 2017. (ECF No. 24.) For the reasons discussed below, the motion is denied

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without prejudice as untimely.

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If construed as a discovery motion, the motion is clearly untimely. The district judge’s

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scheduling order required fact discovery to be completed by May 5, 2017, and expert discovery to

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be completed by August 7, 2017. (ECF No. 9 at 2-3.) In the scheduling order, the term

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“completed” means that “all discovery shall have been conducted so that all depositions have

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been taken and any disputes relative to discovery shall have been resolved by appropriate order if

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necessary and, where discovery has been ordered, the order has been obeyed.” (Id. at 2.)
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To be sure, defendant’s motion is perhaps best interpreted as a dispositive motion, because

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it seeks the imposition of terminating sanctions, or in the alternative, an adverse inference jury

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instruction, which would be more suitably decided by the trial judge. However, even if construed

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as a dispositive motion, the motion is untimely, because the operative scheduling order requires

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all dispositive motions to be heard no later than September 22, 2017. (ECF No. 9 at 4.)

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Therefore, the court denies the motion without prejudice as untimely. Nothing in this

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order precludes defendant from seeking appropriate relief from the scheduling order, such as

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seeking an extension of the dispositive motion deadline or seeking to have the motion heard as a

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motion in limine, matters to be decided in the district judge’s discretion.

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Accordingly, defendant’s motion for terminating sanctions is DENIED WITHOUT
PREJUDICE as untimely. This order resolves ECF No. 19.
IT IS SO ORDERED.

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DATED: September 18, 2017

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