Wilson v. Frito-Lay North America, Inc. et al

Filing 115

ORDER by Judge Samuel Conti denying 112 Motion for Extension of Time to Complete Discovery. (sclc2, COURT STAFF) (Filed on 2/25/2015).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court

For the Northern District of California

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MARKUS WILSON and DOUG CAMPEN,
individually and on behalf of
all others similarly situated,
Plaintiffs,

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v.
FRITO-LAY NORTH AMERICA, INC.,
Defendant.

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) Case No. 12-1586 SC
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) ORDER DENYING MOTION TO EXTEND
) DISCOVERY DEADLINE
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Now before the Court is Plaintiffs' motion to extend the fact

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discovery deadline in this food-labelling case.

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Plaintiffs seek an extension of the February 13, 2015 stipulated

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fact discovery cutoff to allow for the deposition of a third-party

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marketing agency Luntz Global, LLC and Dr. Frank Luntz

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(collectively, "Luntz witnesses").

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ECF No. 105 ("Stip.") (setting February 13, 2015 as the fact

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discovery cut-off).

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Plaintiffs' case because they provided research to Defendant Frito-

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Lay regarding the value of the "natural" claim on certain snack

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food labels at issue in this case.

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Specifically,

ECF No. 112 ("Mot."); see also

The Luntz witnesses are relevant to

Frito-Lay opposes extending the deadline, arguing that

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Plaintiffs have not complied with the local rules in seeking the

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extension of time and, in any event, cannot show they diligently

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pursued the discovery at issue.

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filed an unauthorized reply brief.

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L.R. 6-3(d) (granting the Court, not the parties, discretion to

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determine if additional briefing is necessary after a motion for

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extension of time and opposition are filed).

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for disposition under Civil Local Rule 6-3(d), and for the reasons

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set forth below, it is DENIED.

United States District Court

For the Northern District of California

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ECF No. 113 ("Opp'n").

Plaintiffs

ECF No. 114 ("Reply"); see Civ.

The motion is ripe

Dr. Luntz was first identified as a third party who might have

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relevant information on July 1, 2014.

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September 2014, Plaintiffs subpoenaed (and Luntz produced)

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documents.

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Plaintiffs served notices of deposition and subpoenas on the Luntz

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witnesses for depositions to take place on the last two days of

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fact discovery, February 12 and 13, 2015.

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notices of deposition, Plaintiffs' counsel conferred with counsel

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for the Luntz witnesses, who informed Plaintiffs the Luntz

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witnesses were unavailable for a deposition on those dates.

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same time, the parties were preparing for a Rule 30(b)(6)

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deposition of Frito-Lay's designee regarding marketing, set to take

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place on February 10, 2015.

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parties agreed might obviate the need for a deposition of the Luntz

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witnesses, and the scheduling issues with the Luntz witnesses,

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Plaintiffs suggested a stipulation.

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Decl.") ¶ 2, Ex. B.

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Two months later, in

More than three months later, in January 2015,

After receiving the

At the

In light of that deposition, which the

ECF No. 114-1 ("McMullan

After the February 10, 2015 Rule 30(b)(6) deposition,
Plaintiffs concluded there was still a need to depose Luntz,

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seemingly to authenticate certain documents.

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result, Plaintiffs continued to seek a stipulation regarding those

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documents, but, with the fact discovery deadline looming, the clock

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ran out.

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Id. at ¶ 3.

As a

As a result, Plaintiffs filed this motion.

Scheduling orders "may be modified only for good cause and

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with the judge's consent."

Fed. R. Civ. P. 16(b)(4).

Pretrial

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scheduling orders may be modified if the dates scheduled "cannot

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reasonably be met despite the diligence of the party seeking the

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extension."

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

United States District Court

For the Northern District of California

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609 (9th Cir. 1992).

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the moving party's reasons for seeking modification.

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was not diligent, the inquiry should end."

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has previously observed, "centering the good cause analysis on the

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moving party's diligence prevents parties from profiting from

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carelessness, unreasonability, or gamesmanship, while also not

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punishing parties for circumstances outside their control."

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Cathode Ray Tube (CRT) Antitrust Litig., No. C-07-5944-SC, 2014 WL

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4954634, at *2 (N.D. Cal. Oct. 1, 2014) (citing Orozco v. Midland

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Credit Mgmt. Inc., No. 2:12-cv-02585-KJM-CKD, 2013 WL 3941318, at

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*3 (E.D. Cal. July 30, 2013)).

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The focus of the good cause inquiry is "on

Id.

If that party

As the undersigned

In re

Civil Local Rule 6-3 also sets forth specific requirements for

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motions to change time.

Specifically, the moving party must file

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three documents: (1) a motion of no more than five pages, (2) a

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proposed order, and (3) a declaration.

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accompanying declaration must set forth "with particularity" the

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reasons for the enlargement of time, the efforts to obtain a

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stipulated time change, "the substantial harm or prejudice that

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would occur if the Court did not change the time," any prior time

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Civ. L.R. 6-3(a).

The

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modifications in the case, and the effect of the modification on

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the schedule for the case.

Civ. L.R. 6-3(a)(1)-(6).

Plaintiffs' motion must be denied for two separate (but each

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not comply with Civil Local Rule 6-3(a) and 6-3(a)(3) because it

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was not accompanied by the required declaration and does not

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sufficiently set forth a "substantial harm or prejudice" that would

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result from the denial of the motion.

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had filed the necessary declaration and demonstrated prejudice,

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United States District Court

individually sufficient) reasons.

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For the Northern District of California

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First, Plaintiffs' motion does

they did not act diligently in pursuing the discovery at issue.

Second, even if Plaintiffs

First, contrary to the requirement of Civil Local Rule 6-3(a),

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Plaintiffs did not file a declaration with their motion.

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Plaintiffs did, however, file a declaration with their unauthorized

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reply brief "[p]ursuant to Local Rule 6-3 . . . ."

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at 1.

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of Civil Local Rule 6-3.

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declaration does not set forth "the substantial harm or prejudice"

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that Plaintiffs will suffer if the Court does not extend the

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deadline.

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motion Plaintiffs will be unable to depose the Luntz witnesses, but

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Plaintiffs have not provided any explanation at all of how (if at

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all) that will prejudice their case.

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explanation of why the Rule 30(b)(6) deposition that took place on

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February 10, 2015 was not sufficient aside from their conclusory

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assertion that it "did not, in Plaintiffs' view, eliminate the need

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to depose Luntz."

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Plaintiffs would argue they will be prejudiced if they are unable

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to depose the Luntz witnesses because they might be unable to use

McMullan Decl.

But this declaration does not comply with the requirements
Specifically, Plaintiffs' belated

Civ. L.R. 6-3(a)(3).

Obviously, if the Court denies the

Nor do they provide any

Reply at 2-3; McMullan Decl. ¶ 3.

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Maybe

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the non-authenticated documents produced by Luntz in support of

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their forthcoming class certification motion.

But Plaintiffs state

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that Luntz only produced 37 documents anyway.

Perhaps those are

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very important documents, but Plaintiffs do not say so, and in any

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event the Court should not have to guess or read between the lines

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of Plaintiffs' briefs and declaration to suss out the prejudice

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they might suffer.

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Court when they failed to mention prejudice at all in their opening

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brief and failed to discuss prejudice outside of rebutting Frito-

But that is the only option Plaintiffs left the

United States District Court

For the Northern District of California

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Lay's claims of prejudice in their unauthorized reply.

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insufficient, and would be enough standing alone to deny

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Plaintiffs' motion.

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This is

But there is a second, and even more compelling, reason to

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deny Plaintiffs motion: Plaintiffs have not demonstrated that they

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diligently pursued the discovery at issue.

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and declaration makes clear, Plaintiffs were aware that the Luntz

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witnesses might have discoverable information since July and

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actually obtained document discovery from them in September.

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Plaintiffs offer nothing in their submissions explaining why they

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waited almost four months after receiving that discovery (until the

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eve of the fact-discovery cutoff) to notice and schedule the

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deposition of the Luntz witnesses.

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that delay or any indication of factors outside Plaintiffs'

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control, the Court cannot conclude Plaintiffs diligently pursued

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this discovery.

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Logistics, Inc., No. 11-cv-2861, 2012 WL 6095089, at *2-3 (N.D.

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Cal. Dec. 7, 2012) ("Plaintiff provided no explanation for why it

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waited, at minimum, nearly two full months . . . despite its

As Defendants' brief

But

Without some explanation for

See Mitsui O.S.K. Lines, Ltd. v. Seamaster

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knowledge that the discovery cutoff in this action loomed . . .

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.").

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control, it was unreasonable for Plaintiffs to wait, with full

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notice of the existence of relevant witnesses, until less than a

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month prior to the fact discovery cutoff to notice a third party

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deposition.

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their discussion of diligence at the time they noticed the

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deposition.

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and as a result, "the inquiry should end."

United States District Court

For the Northern District of California

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In any event, absent some circumstance outside Plaintiffs'

Plaintiffs do not argue otherwise, and instead begin

That is insufficient to show Plaintiffs' diligence,
See Johnson, 975 F.2d

at 609.
For these reasons the Court finds Plaintiffs have not

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demonstrated good cause to extend the discovery deadline as

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required by Federal Rule of Civil Procedure 16(b)(4).

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the motion is DENIED.

Accordingly

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Dated: February 25, 2015

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UNITED STATES DISTRICT JUDGE

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