Krzyzanowsky et al v. Orkin Exterminating Company, Inc. et al

Filing 79

ORDER by Judge ARMSTRONG granting 67 Motion to Continue (lrc, COURT STAFF) (Filed on 10/20/2008)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION RONALD KRZYZANOWSKY AND LEANA KRZYZANOWSKY, on behalf of themselves and all others similarly situated, et al., Plaintiffs, No. C 07-05362 SBA ORDER [Docket No. 67]

ORKIN EXTERMINATING COMPANY, INC., et al., Defendants.

INTRODUCTION Before the Court is plaintiffs' Motion to Continue the Trial Date and Corresponding Deadlines (the "Motion") [Docket No. 67]. For the following reasons the Court GRANTS the Motion. BACKGROUND On October 19, 2007, the representative plaintiffs in this putative class action sued defendants for breach of contract; equitable relief; breach of duty to warn; negligent training, retention, and supervision; false advertising in violation of section 17500 et seq. of the California Business and Professions Code; unfair competition in violation of section 17200 et seq. of the Business and Professions Code; and a violation of the Consumers Legal Remedies Act, section 1750 et seq. of the California Civil Code. See Docket No. 1. Plaintiffs' raise these claims in relation to defendants' alleged failure to provide pest control services as contracted, warranted, or advertised. See id. On March 13, 2008, the Court issued a scheduling order setting expert disclosures for October 15, 2008, a non-expert discovery cutoff for November 28, 2008, an expert discovery cutoff for December 15, 2008, a dispositive motion cutoff for February 3, 2009, a pretrial conference for March 24, 2009, and trial for April 20, 2009. See Docket No. 41. On June 10, 2008, this matter was

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

referred to Magistrate Judge Elizabeth D. LaPorte for all discovery disputes. Docket No. 45; Docket entry dated Jun. 10, 2008. On August 20, 2008, defendants filed a motion to compel alleging plaintiffs had failed to respond to several discovery requests served in April and June 2008. See Docket No. 49 at 1. On September 9, 2008, plaintiffs filed a motion to compel alleging several areas in dispute, but primarily focusing on defendants' alleged refusal to (1) produce any discovery from between 1987 and 1999, and (2) produce any discovery unrelated to the named plaintiffs, thus allegedly violating the Court's order against bifurcating discovery between the named plaintiffs and the putative class. See Docket Nos. 51, 53 at 2. On October 1, 2008, Judge LaPorte granted defendant's motion, ordering plaintiff's to produce responses, or declare they had no responsive information, by October 15, 2008. Docket No. 65. On October 14, 2008, almost a year after suit, and a day prior to the expert disclosure cutoff, plaintiffs filed the Motion before the Court, seeking to continue the trial and all cutoff dates for six months, allegedly due to defendants' discovery delays. Docket No. 69. Plaintiffs note they cannot meaningfully designate experts, without proper disclosures from defendants. Id. Plaintiffs further allege defendants said they would agree to a four- to six-week continuance, but would not to so stipulate. Id. ¶ 3.f. On October 17, 2008, Judge LaPorte granted in part and denied in part plaintiffs' motion to compel. Docket No. 76. Specifically, Judge LaPorte denied the motion to the extent plaintiffs sought discovery prior to 1999, at this time, but granted the motion to the extent plaintiffs sought discovery from 1999 and after. Id. With regards to prior times, or other issues raised in their motion, because the parties indicated they could meet and confer to resolve these issues on their own, Judge LaPorte denied them without prejudice. Id. LEGAL STANDARD Under Civil Local Rule 6-3, a party filing a motion to enlarge time, must address (1) with particularity, the reasons for the enlargement; (2) any efforts the party has made to obtain a stipulation; (3) the substantial harm or prejudice if the Court does not enlarge time; (4) any previous time modifications; and (5) the effect the enlargement would have on the case's schedule. 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1

ANALYSIS Examining plaintiffs request under Civil Local Rule 6-3's factor's, the Court finds good cause to enlarge time. With regards to the first factor, reasons for the request, plaintiffs filed a declaration discussing the efforts to meet and confer with defendants regarding defendants' alleged discovery delays, to no avail, leading to plaintiffs' motion to compel. See Docket No. 69. In response, defendants dispute they delayed, and instead argue plaintiffs are the ones who have delayed discovery, both their requests and production, causing defendants to file their own motion to compel. See Docket Nos. 77-78. The Court need not resolve these cross-allegations, as it notes Judge LaPorte granted defendants' motion, and a substantial part of plaintiffs', denying the remainder without prejudice. Given that plaintiffs need time to comply with Judge LaPorte's order, and that both parties will need time to process the other's production in response to Judge LaPorte's orders, plaintiffs have stated good reasons for enlargement. Regarding the second factor, plaintiffs attempted to obtain a stipulation to a six-month enlargement, but defendants would only agree to a four- to six-week enlargement. See Docket No. 69 ¶ 3.f; Docket No. 77 at 4.1 As for the third factor, plaintiffs argue that they cannot meaningfully designate experts, without proper disclosures from defendants, which Judge LaPorte did not order, until October 17, 2008, or two days after the expert disclosure cutoff. Docket No. 69. Defendants argue (1) any delay was plaintiffs' fault; (2) plaintiffs disclosed experts on October 16, 2008; and (3) plaintiffs had enough discovery prior to October 17, 2008 to disclose experts. Docket No. 77 at 1-4. The Court notes that based on Judge LaPorte's rulings on the motions to compel, both sides delayed providing discovery. Further, even if plaintiffs did disclose when required under the Court's March 13, 2008 scheduling order, this does not obviate plaintiffs' need for complete, proper, and timely disclosures, as ordered by Judge LaPorte, so plaintiffs may adequately disclose experts. Given that defendants failed to provide complete, proper, or timely disclosures prior to the expert disclosure cutoff,

Plaintiffs declare that defendants would agree to this enlargement, but refused to so stipulate. Docket No. 69 ¶ 3.f. Defendants allege in their Opposition that they would have stipulated, but declined to actually declare this statement. Docket No. 77 at 4:24-26. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

plaintiffs have shown they would suffer substantial harm or prejudice if the Court did not enlarge time. With regards to the fourth factor, there have been no previous requests for enlargement. Docket No. 67 at 2. With regards to the fifth factor, enlargement would merely continue all existing dates for six months, placing trial at about one-and-a-half years out from filing. Defendants oppose on the ground they will suffer undue prejudice for two reasons. First, they argue that evidence has become stale and memories have faded since 1999, and further delay will make evidence more stale and memories more faded. Docket No. 77 at 4-5. Defendants alleged this, but did not declare it. Even had they declared it, however, the Court notes the cure for this alleged problem is prompt production in response to discovery requests, which defendants did not do. If defendants wish to avoid any further alleged problems with staleness or faded memories, they need to timely comply with Judge LaPorte's order. If they do, then extending the trial date and certain deadlines in this matter by six months will not affect any alleged staleness of evidence of fading of memories. Defendants also argue, however, enlargement will increase litigation costs. Id. at 5. Defendants do not explain, however, how this poses undue prejudice to them. See id. In conclusion, the Court notes that plaintiff should have sooner filed its motions to compel discovery and to continue dates in this matter. Nonetheless, the Court also notes the parties need more time to comply with Judge LaPorte's order and process the disclosures provided in response to it. Further, the Court finds no prejudice to defendants in granting the requested enlargement. Thus, the Court GRANTS plaintiffs' motion. CONCLUSION ACCORDINGLY, the Court GRANTS plaintiffs' Motion to Continue the Trial Date and Corresponding Deadlines [Docket No. 67]. The hearing set for October 28, 2008, at 1:00 p.m., in Courtroom 3 of the United States Courthouse, 1301 Clay Street, 3rd Floor, Oakland, California, 94612, for this motion, is VACATED. All pending dates in this matter are VACATED. The Court sets a Case Management Conference for November 6, 2008 at 2:45 p.m. The parties shall meet and confer prior to the conference and shall prepare a joint Case Management Conference Statement which shall be filed no later than ten (10) days prior to the Case Management Conference that 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

complies with the Standing Order for all Judges of the Northern District of California and the Standing Order of this Court. Plaintiff(s) shall be responsible for filing the statement as well as for arranging the conference call. All parties shall be on the line and shall call [phone] at the above indicated date and time.

IT IS SO ORDERED. October 20, 2008 _________________________________ Saundra Brown Armstrong United States District Judge

5