Hayward v. Bank of America, N.A.

Filing 45

ORDER signed by District Judge Morrison C. England, Jr on 11/13/18 GRANTING 38 Motion for Extension of time to conduct discovery. The deadline for completing fact discovery is extended to 2/8/2019. 35 Motion for Summary Judgment is DENIED, without prejudice, as premature. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELLI HAYWARD, an individual,

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No. 2:16-cv-3047-MCE-DMC

Plaintiff,
v.

ORDER

BANK OF AMERICA, N.A.,
Defendant.

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Through the present lawsuit, Plaintiff Kelli Hayward (“Plaintiff”) seeks damages

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against her mortgage servicer, Defendant Bank of America, N.A. (“BANA”) on grounds

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that BANA wrongfully withheld payments received from Plaintiff’s insurance carrier

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following a 2013 fire loss and failed to credit those retained funds against the

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outstanding balance owing on Plaintiff’s mortgage loan. Presently before the Court is

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Plaintiff’s Motion to Extend Discovery Deadline (ECF No. 38). Plaintiff’s Motion also

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seeks to extend the hearing date on Defendant’s Motion for Summary Judgment (ECF

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No. 35) in order to accommodate that discovery extension.

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Plaintiff’s lawsuit was initially filed on December 29, 2016. Plaintiff was initially

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represented by attorney Mark Ankcorn and discovery commenced. The Court’s initial

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Pretrial Scheduling Order (“PTSO”) called for a completion date of fact discovery by

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December 29, 2017, and it appears that discovery between the parties began in April
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2017. On December 4, 2017, due to ongoing issues concerning the encryption of file

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materials provided by BANA, Plaintiff sought a discovery extension. Technical issues

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pertaining to document production persisted, and the Court, on its own motion, extended

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the discovery deadline to April 2, 2018, and ordered a Status Conference on January 25,

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2018, at which time the Court directed BANA to work with counsel in furnishing

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documents in an accessible fashion and to make a BANA witness available for

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deposition by Plaintiff. In the meantime, the Court was advised that Mr. Ankcorn’s wife

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had been diagnosed with metastatic colon cancer, which made it necessary for her to

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undergo a chemotherapy regimen and for Ankcorn himself to travel. ECF No. 30.

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Mr. Ankcorn consequently was permitted to appear by telephone at the time of the

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January 25, 2018 Status Conference. ECF No. 31.

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On March 26, 2018, shortly before discovery was scheduled to close, Mr. Ankcorn

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withdrew as counsel, which left attorney Dante Pride, who had initially appeared as co-

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counsel with Ankcorn on March 6, 2018, as Plaintiff’s lead attorney. Due to confusion

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about who was supposed to appear, depositions scheduled by Defendants were not

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entered on Mr. Pride’s calendar, and he had to make last-minute arrangements to

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participate in those depositions on March 23, 2018, before Mr. Ankcorn had even

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substituted out of this matter. According to Mr. Pride’s declaration, he informed BANA’s

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counsel that he would need to extend existing dates on March 26, 2018, presumably

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because he had just become involved in handling the case. Pride Decl., ECF No. 38-1,

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¶ 16.

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BANA refused Plaintiff’s request to both extend the time for completing discovery

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and the date for hearing on BANA’s Motion for Summary Judgment, which it had filed on

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March 9, 2018, nearly a month before discovery had closed. Plaintiff filed its Motion to

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Extend Discovery Deadline just three days after that refusal, on March 29, 2018.

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This Court’s initial PTSO was issued on December 30, 2016. Once a district

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court has issued a PTSO pursuant to Federal Rule of Civil Procedure 16, that Rule’s

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standards control. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08
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(9th Cir. 1992). Prior to a final pretrial conference in this matter, which has not yet been

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scheduled, the Court can modify its PTSO upon a showing of “good cause.” See Fed. R.

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Civ. P. 16(b).

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“Unlike Rule 15(a)’s liberal amendment policy, which focuses on the bad faith of

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the party seeking to interpose an amendment and the prejudice to the opposing party,

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Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking

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the amendment.” Johnson, 975 F.2d at 609. In explaining this standard, the Ninth

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Circuit has stated that:

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[a] district court may modify the pretrial schedule “if it cannot
reasonably be met despite the diligence of the party seeking
the extension.” Moreover, carelessness is not compatible with
a finding of diligence and offers no reason for granting of relief.
Although the existence or degree of prejudice to the party
opposing the modification might supply additional reasons to
deny a motion, the focus of the inquiry is upon the moving
party’s reasons for seeking modifications. If that party was not
diligent, the inquiry should end.

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Id. (citations omitted).

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Here, it appears that Dante Pride had just taken over responsibility for handling

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this matter when BANA moved for summary judgment. Additionally, Mr. Pride filed his

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motion to continue fact discovery as well as the hearing on BANA’s Motion for Summary

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Judgment (which had been scheduled for April 19, 2018) just three days after BANA’s

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counsel declined to stipulate to any continuance.

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Under these circumstances the Court cannot find that Mr. Pride was less than

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diligent. While BANA tries to argue that his failure to specify just what additional

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discovery was needed should doom his request, the fact remains that Pride had only just

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become involved and could not necessarily be expected to appreciate the discovery

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demands of a case for which he had just assumed primary responsibility. In addition, he

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promptly moved for continuances once he realized that an agreement in that regard

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could not be effectuated.

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Plaintiff’s Motion to Extend Discovery (ECF No. 38) is accordingly GRANTED.1

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The deadline for completing fact discovery in this matter is extended to February 8,

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2019. Given that extension, Defendant BANA’s Motion for Summary Judgment (ECF

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No. 38) is DENIED, without prejudice, as premature. Defendant BANA may renew its

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request for summary judgment once fact discovery has closed.

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IT IS SO ORDERED.

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Dated: November 13, 2018

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Having determined that oral argument would not be of material assistance, the Court ordered this
matter submitted on the briefs in accordance with E.D. Local Rule 230(g).

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