Nicholas Alford v. J.P. Morgan Chase, N.A.
Filing
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ORDER by Judge Haywood S. Gilliam, Jr. Denying 54 Administrative Motion to Extend Cutoff for Hearing Dispositive Motions re 40 Order. (ndrS, COURT STAFF) (Filed on 8/28/2017)
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Joseph E. Addiego III (CA SBN 169522)
John D. Freed (CA SBN 261518)
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, California 94111
Telephone:
(415) 276-6500
Facsimile:
(415) 276-6599
Email:
jakefreed@dwt.com
joeaddiego@dwt.com
Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.
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IN THE UNITED STATES DISTRICT COURT
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THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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NICHOLAS ALFORD,
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Plaintiff,
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v.
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JPMORGAN CHASE BANK, N.A.,
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Defendant.
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Case No. 16-cv-04723-HSG
MOTION TO EXTEND CUTOFF FOR
HEARING DISPOSITIVE MOTIONS;
DECLARATION OF JOHN FREED
(IMMEDIATE ACTION REQUESTED)
Civ. L.R. 6-3
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MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG
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Defendant JPMorgan Chase Bank, N.A. (“Chase”) respectfully submits this administrative
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motion pursuant to Civil Local Rule 6-3. Chase requests a five-week extension of the cutoff for
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hearing dispositive motions, and a commensurate extension of the pretrial conference and trial
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start dates.
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The current hearing cutoff date is October 5, 2017, which makes Chase’s deadline to file
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summary judgment August 31, 2017. Although discovery is otherwise closed, one deposition
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remains to be taken on September 26, 2017. Chase attempted to obtain a stipulation from Plaintiff
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without success, and in fact reached a stipulation in principle before Plaintiff reneged.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
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Fact discovery in this case closed on July 7, 2017. (See Dkt. No. 40.) Plaintiff took no
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written discovery before this time, and waited until the final days of June 2017 to serve a Rule
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30(b)(6) deposition notice. (Freed Declaration ¶¶ 2-3.) The noticed deposition included a range
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of overbroad topics relating to Chase’s general policies and procedures about a wide range of
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areas, and when Plaintiff refused to compromise on the breadth of his topics, Chase initiated the
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letter brief process with Judge Beeler. Chase agreed that discovery could be extended past the
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July 7 cutoff for the limited purpose of the 30(b)(6) deposition, because Plaintiff had noticed it
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prior to the cutoff. (Id. ¶ 3.) During the pendency of Judge Beeler’s decision, Chase’s counsel
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offered dates in August 2017 for the deposition, but Plaintiff’s counsel stated she would rather not
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schedule the deposition until after Judge Beeler issued her ruling. (Id. ¶ 4.) Judge Beeler issued
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her ruling on July 28, 2017 (see Dkt. No. 50).
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By the time Judge Beeler ruled, Chase’s 30(b)(6) witness only had availability on
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September 12-14 and Sept. 25-29. Plaintiff’s counsel selected September 26, and the deposition is
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set to go forward on that date. (Freed Decl. ¶ 5.) During the scheduling discussions, on August
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10, Chase’s counsel suggested stipulating to move the entire case schedule back six to eight weeks
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because it is more sensible to complete all fact discovery before filing summary judgment
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motions. (Id. ¶ 6.) Based on the current schedule (see Dkt. No. 40), dispositive motions must be
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filed by August 31, with a hearing cutoff date of October 5.
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MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG
On August 11, Plaintiff’s counsel responded in writing that she “agreed” to the proposed
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extension. (Freed Decl. ¶ 6.) On August 14, Chase’s counsel presented Plaintiff’s counsel with a
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draft stipulation to extend the schedule approximately six weeks. On August 15, Plaintiff’s
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counsel responded and suggested “we should hold off on filing the stipulation” in light of a
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forthcoming request to amend Plaintiff’s Complaint. Counsel stated that, if Chase would stipulate
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to the proposed amendment, the parties could file an omnibus stipulation to address both the
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schedule and the amendment. (Id. ¶ 7.)
On August 16, five days after agreeing to a schedule extension, Plaintiff’s counsel first
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provided a draft proposed amended Complaint, which she described as “just add[ing] more facts.”
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(Freed Decl. ¶ 8.) Over the weekend, Chase’s counsel analyzed the proposed amendment and
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found that it attempted to allege facts supporting liability that Plaintiff had failed to identify in
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response to explicit requests in Chase’s interrogatories, requests for production of documents, and
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questioning in Chase’s deposition of Plaintiff. On August 22, Chase accordingly declined to
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stipulate to an amendment, concluding that a post-discovery amendment on the eve of summary
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judgment was not proper, particularly given the new facts alleged.1 (Id.)
On August 23, Plaintiff’s counsel wrote to Chase’s counsel that “[w]e won’t be stipulating
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to change the date of the filing of the MSJ.” (Freed Decl. ¶ 9.) Chase’s counsel responded,
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pointing out that Plaintiff’s counsel had already agreed to the stipulation in writing before ever
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proposing an amended complaint, and that Chase had merely agreed to delay filing the stipulation
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based on Plaintiff’s suggestion that an omnibus stipulation could be filed to address both the
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schedule and the proposed amendment. Plaintiff’s counsel refused to modify her position, despite
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the clear prejudice to Chase created by reneging on her agreement to extend the schedule twelve
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days after having made that agreement, and only eight days before the summary judgment
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deadline. (Id. ¶¶ 10-11.) Plaintiff’s counsel maintained that Chase would not be prejudiced by her
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last-minute reversal, arguing that Chase would still have a week to get its papers prepared.
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II.
ARGUMENT
Civil Local Rule 6-3 permits a party to bring a Motion to Change Time that:
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Chase will be opposing Plaintiff’s August 23 motion for leave to amend.
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MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG
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(1) Sets forth with particularity, the reasons for the requested
enlargement or shortening of time;
(2) Describes the efforts the party has made to obtain a stipulation
to the time change;
(3) Identifies the substantial harm or prejudice that would occur if
the Court did not change the time; and
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(5) Discloses all previous time modifications in the case, whether
by stipulation or Court order;
(6) Describes the effect the requested time modification would have
on the schedule for the case.
Chase seeks a reasonable extension of five weeks to the case schedule to allow for all
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discovery to be taken before summary judgment motions must be filed. No time modifications
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have previously been granted in the case. Chase also seeks that trial be extended by a
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commensurate amount to give the Court ample time to rule on Chase’s expected summary
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judgment motion before Chase must commit extensive resources to trial preparation. Chase
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proposes the following revised dates:
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Event
Dispositive Motion Hearing Deadline
Current Date
October 5, 2017
Proposed Date
November 9, 2017
Pretrial Conference
January 9, 2018
February 13, 2018
Trial Commencement
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January 22, 2018
February 26, 2018
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Currently, Plaintiff’s Rule 30(b)(6) deposition of Chase is scheduled twenty-six days after
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the deadline to file summary judgment. The lateness of the deposition is due to Plaintiff having
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waited until the eve of the fact discovery cutoff to notice it. Due to the uncompromising
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overbreadth of the notice, Chase was forced to challenge its scope. By the time Judge Beeler ruled
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on the Challenge, Chase’s witness-designate only had availability in September.
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Chase submits it makes no sense to file summary judgment motions and oppositions when
a key deposition remains outstanding. Plaintiff’s counsel appeared to agree with this common3
MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG
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sense view when she agreed on August 11, in writing, to a proposed extension. Only after she
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agreed to the extension did counsel first request that Chase stipulate to an amended Complaint.
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She induced Chase to refrain from filing the already-drafted stipulation on the extension by
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representing that, if Chase agreed to the amendment, an omnibus stipulation could be filed to
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address both issues simultaneously.
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Out of respect for efficiency, Chase’s counsel agreed to not file the scheduling stipulation
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and, in the interim, to review the proposed amendment. After a good-faith review of the proposed
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amendment, Chase determined that it improperly sought to allege facts that Plaintiff explicitly had
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not provided in discovery, and declined to stipulate to the amendment. Then, on August 23—
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twelve days after agreeing to an extension and only eight days before the summary judgment
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deadline—Plaintiff’s counsel reneged on her agreement and demanded that Chase file summary
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judgment by August 31.
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Chase is now faced with having to prepare summary judgment papers in a week’s time,
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having refrained from preparing its papers in reliance on counsel’s prior agreement to an
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extension. Chase acknowledges that any such extension was conditional on the Court’s
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agreement, however, Chase reasonably believed the Court would grant the extension given the
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typical practice of completing fact depositions before summary judgment occurs.
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Had Plaintiff’s counsel simply rejected a proposed extension on August 11, Chase would
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have either made this administrative motion earlier, or would simply have taken the past two
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weeks and prepared its summary judgment papers, to the extent it is able to do so without the
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benefit of the outcome of the September 26 deposition. She did not. She agreed to an extension
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and then reneged on her agreement when Chase would not agree to an unrelated issue she raised
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after the fact—Plaintiff’s request for an untimely and improper amendment to his Complaint.
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Plaintiff’s counsel’s conduct has required this otherwise unnecessary motion, as well as the
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expenditure of time and effort on the part of Chase’s counsel to resolve the issue. Chase
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accordingly requests an order requiring Plaintiff’s counsel reimburse Chase for its expenses in
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preparing this administrative motion and supporting materials.
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MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG
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DATED August 25, 2016
DAVIS WRIGHT TREMAINE LLP
Joseph E. Addiego, III
John D. Freed
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By: /s/ John D. Freed
John D. Freed
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Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.
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Jud
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8/28/2017
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MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG
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