LegalForce RAPC Worldwide P.C. et al v. Demassa

Filing 228

ORDER DENYING PLAINTIFF'S MOTION TO REOPEN DISCOVERY; VACATING HEARING. Signed by Judge Maxine M. Chesney on September 9, 2020. (mmclc1, COURT STAFF) (Filed on 9/9/2020)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LEGALFORCE RAPC WORLDWIDE
P.C.,

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Plaintiff,

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v.

Case No. 18-cv-00043-MMC
ORDER DENYING PLAINTIFF'S
MOTION TO REOPEN DISCOVERY;
VACATING HEARING
Re: Doc. No. 224

CHRIS DEMASSA,

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Defendant.

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United States District Court
Northern District of California

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Before the Court is plaintiff's Motion, filed August 25, 2020, "to Reopen Discovery

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to Depose Ronald Jaicks and William Covey, or in the Alternative, to Call Them as

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Witnesses at Trial." Defendant has filed opposition.1 Having read and considered the

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papers filed in support of and in opposition to the motion, the Court deems the matter

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suitable for determination on the parties' respective written submissions, VACATES the

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hearing scheduled for September 11, 2020, and rules as follows.

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In its Pretrial Preparation Order filed February 8, 2019, the Court set September 9,

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2019, as the deadline to complete fact discovery. Plaintiff now seeks an order amending

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said deadline for the purpose of allowing plaintiff to depose two individuals, specifically,

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William Covey ("Covey"), the Director of the United States Patent and Trademark Office's

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("USPTO") Office of Enrollment and Discipline ("OED"), and Ronald Jaicks ("Jaicks"), an

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attorney at the OED.

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A pretrial schedule "may be modified only for good cause." See Fed. R. Civ. P.

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16(b)(4). Here, even assuming, as plaintiff asserts, it was unaware of the need to depose

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Covey and Jaicks until November 13, 2019, plaintiff waited more than nine months before

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Pursuant to the parties' stipulation, no reply has been filed. (See Stipulation, filed
August 25, 2020, at 2:15-25.)

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filing the instant motion to reopen discovery, and plaintiff's explanation, that it was waiting

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for the Court to resolve defendant's motion for summary judgment, is not sufficient cause

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for such delay, particularly given the fact that defendant's motion was not filed until March

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23, 2020, more than four months after the date on which plaintiff states it first learned of a

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need to depose the above-referenced witnesses. See Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (holding, if party moving to reopen

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discovery under Rule 16(b) "was not diligent, the inquiry should end").

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Further, although plaintiff argues the "jury may get confused if they can only hear
[defendant's] testimony claiming that his practice is approved by the USPTO" (see Pl.'s
Mot. at 5:3-4), the question of whether defendant is engaged in the practice of law will be

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United States District Court
Northern District of California

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tried to the Court, not a jury, and, in any event, any such testimony may be subject to

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objection under the Rules of Evidence. See Fed. R. Evid. 803-04 (listing exceptions to

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hearsay rule).

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Accordingly, to the extent plaintiff seeks an order reopening discovery, the motion
is hereby DENIED.

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Plaintiff seeks, in the alternative, an order allowing it "to call [Covey and Jaicks] as

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witnesses at trial." (See Pl.'s Mot. a 9:16.) Defendant, who appeared pro se until a date

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after all pretrial deadlines had passed, did not conduct discovery. Consequently, there is,

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at present, no apparent ground upon which he might object to their being called to testify

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at the trial. Nevertheless, plaintiff does not assert that either such potential witness would

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voluntarily appear at the trial, and, as both reside in and work in the vicinity of

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Washington, D.C., they are beyond the subpoena power of this Court. See Fed. R. Civ.

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P. 45(c)(1).

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Accordingly, to the extent plaintiff may be seeking an order requiring Covey and
Jaicks to appear as trial witnesses, the motion is hereby DENIED.
IT IS SO ORDERED.
Dated: September 9, 2020
MAXINE M. CHESNEY
United States District Judge

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