Nicholas Alford v. J.P. Morgan Chase, N.A.

Filing 55

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)

1
2
3
4
5
6

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:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.

7
8

IN THE UNITED STATES DISTRICT COURT

9

THE NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11
NICHOLAS ALFORD,
12
Plaintiff,
13
v.
14
JPMORGAN CHASE BANK, N.A.,
15
Defendant.
16
17

)
)
)
)
)
)
)
)
)
)
)
)

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

18
19
20
21
22
23
24
25
26
27
28

MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG

1

Defendant JPMorgan Chase Bank, N.A. (“Chase”) respectfully submits this administrative

2

motion pursuant to Civil Local Rule 6-3. Chase requests a five-week extension of the cutoff for

3

hearing dispositive motions, and a commensurate extension of the pretrial conference and trial

4

start dates.

5

The current hearing cutoff date is October 5, 2017, which makes Chase’s deadline to file

6

summary judgment August 31, 2017. Although discovery is otherwise closed, one deposition

7

remains to be taken on September 26, 2017. Chase attempted to obtain a stipulation from Plaintiff

8

without success, and in fact reached a stipulation in principle before Plaintiff reneged.

9

I.

FACTUAL AND PROCEDURAL BACKGROUND

10

Fact discovery in this case closed on July 7, 2017. (See Dkt. No. 40.) Plaintiff took no

11

written discovery before this time, and waited until the final days of June 2017 to serve a Rule

12

30(b)(6) deposition notice. (Freed Declaration ¶¶ 2-3.) The noticed deposition included a range

13

of overbroad topics relating to Chase’s general policies and procedures about a wide range of

14

areas, and when Plaintiff refused to compromise on the breadth of his topics, Chase initiated the

15

letter brief process with Judge Beeler. Chase agreed that discovery could be extended past the

16

July 7 cutoff for the limited purpose of the 30(b)(6) deposition, because Plaintiff had noticed it

17

prior to the cutoff. (Id. ¶ 3.) During the pendency of Judge Beeler’s decision, Chase’s counsel

18

offered dates in August 2017 for the deposition, but Plaintiff’s counsel stated she would rather not

19

schedule the deposition until after Judge Beeler issued her ruling. (Id. ¶ 4.) Judge Beeler issued

20

her ruling on July 28, 2017 (see Dkt. No. 50).

21

By the time Judge Beeler ruled, Chase’s 30(b)(6) witness only had availability on

22

September 12-14 and Sept. 25-29. Plaintiff’s counsel selected September 26, and the deposition is

23

set to go forward on that date. (Freed Decl. ¶ 5.) During the scheduling discussions, on August

24

10, Chase’s counsel suggested stipulating to move the entire case schedule back six to eight weeks

25

because it is more sensible to complete all fact discovery before filing summary judgment

26

motions. (Id. ¶ 6.) Based on the current schedule (see Dkt. No. 40), dispositive motions must be

27

filed by August 31, with a hearing cutoff date of October 5.

28
1
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

1
2

extension. (Freed Decl. ¶ 6.) On August 14, Chase’s counsel presented Plaintiff’s counsel with a

3

draft stipulation to extend the schedule approximately six weeks. On August 15, Plaintiff’s

4

counsel responded and suggested “we should hold off on filing the stipulation” in light of a

5

forthcoming request to amend Plaintiff’s Complaint. Counsel stated that, if Chase would stipulate

6

to the proposed amendment, the parties could file an omnibus stipulation to address both the

7

schedule and the amendment. (Id. ¶ 7.)
On August 16, five days after agreeing to a schedule extension, Plaintiff’s counsel first

8
9

provided a draft proposed amended Complaint, which she described as “just add[ing] more facts.”

10

(Freed Decl. ¶ 8.) Over the weekend, Chase’s counsel analyzed the proposed amendment and

11

found that it attempted to allege facts supporting liability that Plaintiff had failed to identify in

12

response to explicit requests in Chase’s interrogatories, requests for production of documents, and

13

questioning in Chase’s deposition of Plaintiff. On August 22, Chase accordingly declined to

14

stipulate to an amendment, concluding that a post-discovery amendment on the eve of summary

15

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

16
17

to change the date of the filing of the MSJ.” (Freed Decl. ¶ 9.) Chase’s counsel responded,

18

pointing out that Plaintiff’s counsel had already agreed to the stipulation in writing before ever

19

proposing an amended complaint, and that Chase had merely agreed to delay filing the stipulation

20

based on Plaintiff’s suggestion that an omnibus stipulation could be filed to address both the

21

schedule and the proposed amendment. Plaintiff’s counsel refused to modify her position, despite

22

the clear prejudice to Chase created by reneging on her agreement to extend the schedule twelve

23

days after having made that agreement, and only eight days before the summary judgment

24

deadline. (Id. ¶¶ 10-11.) Plaintiff’s counsel maintained that Chase would not be prejudiced by her

25

last-minute reversal, arguing that Chase would still have a week to get its papers prepared.

26

II.

ARGUMENT

Civil Local Rule 6-3 permits a party to bring a Motion to Change Time that:

27
28
1

Chase will be opposing Plaintiff’s August 23 motion for leave to amend.
2

MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG

1
2
3
4
5
6
7
8
9

(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
....
(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

10
discovery to be taken before summary judgment motions must be filed. No time modifications
11
have previously been granted in the case. Chase also seeks that trial be extended by a
12
commensurate amount to give the Court ample time to rule on Chase’s expected summary
13
judgment motion before Chase must commit extensive resources to trial preparation. Chase
14
proposes the following revised dates:
15
16

18

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

17

January 22, 2018

February 26, 2018

19
20
21
22

Currently, Plaintiff’s Rule 30(b)(6) deposition of Chase is scheduled twenty-six days after

23

the deadline to file summary judgment. The lateness of the deposition is due to Plaintiff having

24

waited until the eve of the fact discovery cutoff to notice it. Due to the uncompromising

25

overbreadth of the notice, Chase was forced to challenge its scope. By the time Judge Beeler ruled

26

on the Challenge, Chase’s witness-designate only had availability in September.

27
28

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

1

sense view when she agreed on August 11, in writing, to a proposed extension. Only after she

2

agreed to the extension did counsel first request that Chase stipulate to an amended Complaint.

3

She induced Chase to refrain from filing the already-drafted stipulation on the extension by

4

representing that, if Chase agreed to the amendment, an omnibus stipulation could be filed to

5

address both issues simultaneously.

6

Out of respect for efficiency, Chase’s counsel agreed to not file the scheduling stipulation

7

and, in the interim, to review the proposed amendment. After a good-faith review of the proposed

8

amendment, Chase determined that it improperly sought to allege facts that Plaintiff explicitly had

9

not provided in discovery, and declined to stipulate to the amendment. Then, on August 23—

10

twelve days after agreeing to an extension and only eight days before the summary judgment

11

deadline—Plaintiff’s counsel reneged on her agreement and demanded that Chase file summary

12

judgment by August 31.

13

Chase is now faced with having to prepare summary judgment papers in a week’s time,

14

having refrained from preparing its papers in reliance on counsel’s prior agreement to an

15

extension. Chase acknowledges that any such extension was conditional on the Court’s

16

agreement, however, Chase reasonably believed the Court would grant the extension given the

17

typical practice of completing fact depositions before summary judgment occurs.

18

Had Plaintiff’s counsel simply rejected a proposed extension on August 11, Chase would

19

have either made this administrative motion earlier, or would simply have taken the past two

20

weeks and prepared its summary judgment papers, to the extent it is able to do so without the

21

benefit of the outcome of the September 26 deposition. She did not. She agreed to an extension

22

and then reneged on her agreement when Chase would not agree to an unrelated issue she raised

23

after the fact—Plaintiff’s request for an untimely and improper amendment to his Complaint.

24

Plaintiff’s counsel’s conduct has required this otherwise unnecessary motion, as well as the

25

expenditure of time and effort on the part of Chase’s counsel to resolve the issue. Chase

26

accordingly requests an order requiring Plaintiff’s counsel reimburse Chase for its expenses in

27

preparing this administrative motion and supporting materials.

28
4
MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG

1

DATED August 25, 2016

DAVIS WRIGHT TREMAINE LLP
Joseph E. Addiego, III
John D. Freed

2
3
4

By: /s/ John D. Freed
John D. Freed

5

Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.

14

Jud

ER

S. Gillia

R NIA

ood
g e H ay w

H

13

RT

12

8/28/2017

NO

11

Dated:

m Jr.

A

10

D
DENIE

LI

9

UNIT
ED

8

S DISTRICT
TE
C
TA

RT
U
O

S

7

FO

6

N

F
D IS T IC T O
R

15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
MOTION TO EXTEND CUTOFF FOR HEARING DISPOSITIVE MOTIONS
Case No. 16-cv-04723-HSG

C