Delgado et al v. Deanda et al

Filing 84

ORDER denying 79 Motion for Extension of Time to Complete Discovery; ORDER re 82 DDJR #1, 83 Plaintiffs' Supplemental Report on DDJR#1. (hrllc1, COURT STAFF) (Filed on 3/24/2014)

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*E-Filed: March 24, 2014*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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MARTIN DELGADO, ET AL.,
Plaintiffs,

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v.
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MARIA DEANDA, ET AL.,

No. C10-02799 HRL
ORDER DENYING PLAINTIFFS’ EX
PARTE MOTION TO EXTEND
DISCOVERY DEADLINE; ORDER ON
DDJR #1

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Defendants.
____________________________________/

[Re: Docket Nos. 79, 82]

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Plaintiffs sue the owners of Guadalajara Market for alleged violations of various state and

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federal employment laws. Default was entered against Defendants in November 2010. After the

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court issued an Order to Show Cause why the case should not be dismissed, Plaintiffs moved for

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default judgment in October 2011. The motion was granted, but the judgment was set aside in

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December 2012 and the case reopened. In March 2013, the then-presiding judge granted in part

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Plaintiffs Administrative Motion to Allow Limited Discovery Before Initial Case Management

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Conference, and discovery has been open since. In October 2013, the court set a fact discovery

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cutoff date of February 14, 2014. On the cutoff date, Plaintiffs filed the instant Ex Parte Motion to

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Extend Discovery Deadline to request a 60 day extension. See Dkt. No. 79. One week later,

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Defendants opposed the motion and filed Discovery Dispute Joint Report #1 (“DDJR #1”) seeking

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an order to compel depositions and production of documents. See Dkt. Nos. 80, 82. DDJR #1

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contained only two paragraphs from Plaintiffs, who filed a Supplemental Report on DDRJ #1 five

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days later. For the reasons discussed below, Plaintiffs’ motion is denied, and Defendants’ request

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for an order to compel is granted.

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BACKGROUND
At the parties’ request during the October 2013 Case Management Conference, the Court

emails to agree on a time. Plaintiffs’ counsel expressed some concern that if they waited too long,

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there would not be enough time to conduct discovery before the February 14 cutoff. Defendants’

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counsel agreed, but asked that they consider all available dates through the January 13 deadline due

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to his busy travel schedule. The parties scheduled a settlement conference for December 16, but it

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For the Northern District of California

ordered that a settlement conference be held by January 13, 2014. Counsel soon began exchanging

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United States District Court

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was continued after Plaintiffs’ counsel injured himself the day before. The settlement conference

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was finally held on January 13, but the case did not settle.

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Two days later, on January 15, Defendants sent two discovery requests by messenger to the

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office of Plaintiffs’ counsel. The first was a Notice of Taking of Deposition of Plaintiff Martin

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Delgago and Request for Production of Documents (“Delgado Request”), which set the deposition

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and production date for February 13, 2014. The second was a Notice of Taking of Deposition of

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Plaintiff Angel Martinez and Request for Production of Documents (“Martinez Request”) which set

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the date for February 14, 2014. On February 12, a secretary in Defendants’ counsel’s office called

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Plaintiffs’ counsel to confirm the depositions. Instead, Plaintiffs’ counsel advised that he was

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unavailable and that Plaintiffs would not attend their depositions. Two days later, Plaintiffs moved

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to extend the discovery deadline by 60 days.

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DISCUSSION

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A. Ex Parte Motion to Extend Discovery Deadline

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Pursuant to Rule 16(b), the court must issue a scheduling order which limits the time to

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complete discovery. Fed. R. Civ. P. 16(b)(1), (3)(a). “A schedule may be modified only for good

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cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good cause’ standard

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primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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Plaintiffs assert that while they have been diligent, it is defendants who insisted that the

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settlement conference be delayed and that discovery be postponed until the settlement conference

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was complete. Then, an unfortunate injury kept Plaintiffs’ counsel out of office through January.

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Thus, there is good cause to extend the discovery cutoff.

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However, as Defendants’ correctly point out, the emails attached to Plaintiffs’ motion do not

settlement conference dates within the 90 day period because of his busy travel schedule. But he

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also agreed that “[e]arlier better than later,” and nowhere did he suggest putting off discovery. More

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importantly, however, Plaintiffs have not propounded a single discovery request throughout the

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For the Northern District of California

support their assertions. In the emails, Defendants’ counsel merely suggests checking all available

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United States District Court

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entirety of the case, not even after being granted expedited discovery over year ago. Plaintiffs

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cannot be deemed to have been sufficiently diligent to demonstrate good cause to modify the Case

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Management Scheduling Order where they failed to engage in any discovery for the entire year it

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was open. Accordingly, Plaintiffs’ motion is denied.

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B. Discovery Dispute Joint Report #1
“A party who wants to depose a person by oral questions must give reasonable written notice

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to every other party.” Fed. R. Civ. 30(b)(1). “The notice to a party deponent may be accompanied

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by a request under Rule 34 to produce documents and tangible things at the deposition.” Fed. R.

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Civ. P. 30(b)(2). “The party to whom the [Rule 34] request is directed must respond in writing

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within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A).

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The Delgado Request was served on January 15, 2014, and set the deposition and production

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date for February 13, 2014, twenty-nine (29) days later. While this is certainly “reasonable written

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notice” for a deposition, it does not provide the requisite thirty (30) days to respond to a Rule 34

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request for production. However, while the insufficient notice may have excused Delgado’s

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obligation to produce documents at the deposition, it did not excuse his duty to attend the deposition

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or respond to the requests for production within thirty (30) days. See Schultz v. Olympic Medical

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Center, No. C07-5377 FDB, 2008 WL 3977523, at *2 (W.D. Wash. Aug. 22, 2008) (“Due to the

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[less than thirty days’ notice], Defendants simply had no duty to produce documents at [the]

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deposition. Defendants did, however, have the obligation to respond with the responsive documents

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and/or written objections by the end of the thirty-day period.”). Delgado did not attend his

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reasonably noticed deposition, and he did not respond or object to the requests for production within

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thirty (30) days. Moreover, he failed to seek judicial relief or even meet and confer with opposing

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counsel. Accordingly, Defendants are entitled to an order compelling his deposition and production

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of documents.

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The Martinez Request was served on January 15, 2014, and set the deposition and

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production date for February 14, 2014, thirty (30) days later. Thus, it was timely in all respects.

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Martinez’s failure to attend his deposition, respond or object to the requests for production, or seek

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judicial relief entitles Defendants to an order to compel.

For the Northern District of California

United States District Court

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Accordingly, within three (3) days of the date of this order, Defendants shall serve new

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notices of depositions and requests for documents for Delgado and Martinez to occur between ten

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(10) and fourteen (14) days from the date of this order. Defendants shall not make any substantive

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changes to the previous requests for production. Delgado and Martinez shall appear at their

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respective depositions with the requested documents and shall serve written responses or objections

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at least one day prior. The fact discovery cutoff is not extended except for this limited purpose.

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IT IS SO ORDERED.
Dated: March 24, 2014
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C10-02799 HRL Notice will be electronically mailed to:

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Adam Wang [e-mail], [e-mail], [e-mail],
[e-mail]

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Adam Lee Pedersen

[e-mail]

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Robert Fried [e-mail], [e-mail], [e-mail], [e-mail],
[e-mail]
Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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