Pacific Maritime Freight, Inc. v. Foster et al

Filing 111

ORDER Denying Defendant's 104 Motion for Protective Order and Granting Plaintiff's Request for Sanctions. Defendants' request to continue the discovery deadline until Defendants obtain new counsel is Denied. Plaintiff's reques t for payment of expenses is Granted. Plaintiff's counsel must submit a declaration detailing the costs and attorney's fees it incurred in opposing the motion on or before 12/11/2013. Defendants may file a response to the declaration on or before 12/18/2013. Signed by Magistrate Judge Barbara Lynn Major on 11/20/2013.(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PACIFIC MARITIME FREIGHT, INC., 12 Plaintiff, 13 v. 14 SONIA L. FOSTER, et al., 15 16 Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 10cv578-BTM (BLM) ORDER DENYING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER AND GRANTING PLAINTIFF’S REQUEST FOR SANCTIONS [ECF No. 104] 17 On November 15, 2013, counsel for Defendants contacted the Court regarding a discovery 18 dispute concerning depositions set to take place on November 21st and 22nd 2013. ECF No. 19 102. In regard to this dispute, the Court found it appropriate to order Defendants to file their 20 motion for a protective order on or before 12:00 p.m. on November 18, 2013 and Plaintiff to file 21 its opposition on or before 8:00 p.m. on November 18, 2013. ECF No. 103. Defendants and 22 Plaintiff timely filed their motion and opposition and after a review of the pleadings, the Court 23 DENIES Defendants’ motion for a protective order and GRANTS Plaintiff’s request for sanctions. 24 DEFENDANTS’ POSITION 25 In their motion for a protective order, Defendants seek to have the Court enter a 26 protective order to prevent two out of state third party witness depositions from taking place on 27 November 21st and 22nd and to continue the deadline to complete discovery. ECF No. 104-1 28 at 1-2. In support, Defendants argue that the depositions “conflict with prior commitments 10cv578-BTM (BLM) 1 Defendants’ counsel has on other matters, and he will not be able to attend” and that “a conflict 2 has recently arisen between Defendants’ counsel, Negele & Associates, and Defendants such that 3 Negele & Associates will be filing a separate motion to withdraw as counsel for Defendants, and 4 Defendants will need sufficient time to find new counsel to be represented at the Bishop/Gross 5 Depositions.” Id. at 2; see also ECF No. 104-2 (“Negele Decl.”) at 4-5. Specifically, Defendants 6 state that Plaintiff’s counsel violated an agreement “to clear available dates on each other’s 7 calendars before setting out of state depositions” and indicate that they did not receive 8 appropriate notice for the depositions as they were “served amended notice of th[e] depositions 9 on November 12, 2013.” ECF No. 104-1 at 2-3; see also Negele Decl. at 3. 10 PLAINTIFF’S POSITION 11 In its opposition, Plaintiff contends that the testimony sought from the depositions is 12 critical and needed “in support of an immediate motion to terminate the counter-claim on the 13 dual grounds of (1) spoliation of evidence, and (2) fundamental fraud on the Court.” ECF No. 14 108 at 2. Plaintiff further contends that Defendants have not established good cause for a 15 protective order and notes that (1) there was never an agreement between counsel requiring 16 pre-approval of deposition dates, (2) defense counsel has not shown that it is “impossible” for 17 him or Defendant Sonia Foster to appear at the depositions, and (3) any “‘conflict’ is not one of 18 communication. Rather, it derives from Defendant Foster’s now-revealed perjurious statements 19 to this Court about the claimed death of her mother, made in sworn declaration to this court by 20 both Foster and Attorney Negele.” Id. at 3. Plaintiff notes that Defendants received notice of 21 the depositions on November 4, 2013 and did not object to those depositions until November 13, 22 2013 and that Defendant Foster has a history of bad faith conduct that should not be permitted 23 to continue. Id. at 6-7. Plaintiff requests that the Court allow it to “recover its costs, including 24 its reasonable attorneys’ fees in opposing this Motion.” Id. at 8. 25 DISCUSSION 26 “A party or any person from whom discovery is sought may move for a protective order 27 in the court where the action is pending . . . . [and] [t]he court may, for good cause, issue an 28 order to protect a party or person from annoyance, embarrassment, oppression, or undue 2 10cv578-BTM (BLM) 1 burden or expense.” Federal Rule of Civil Procedure (“FRCP”) 26(c)(1). Here, Defendants have 2 failed to demonstrate good cause in support of a protective order. First, Defendant have failed 3 to cite any law in support of their position that they did not receive proper notice of the 4 depositions. Under FRCP 30(b)(1) “[a] party who wants to depose a person by oral questions 5 must give reasonable written notice to every other party. The notice must state the time and 6 place of the deposition and, if known, the deponent's name and address.” A number of cases 7 have found ten days notice reasonable for a deposition without production of documents. Barbin 8 v. MV Transp., Inc., 2012 WL 3150051, *2 (E.D. Cal. Aug. 1, 2012) (citing Paige v. Consumer 9 Programs, Inc., 248 F.R.D. 272, 275 (C.D. Cal. 2008) and In re Sulfuric Acid Antitrust Litig., 231 10 F.R.D. 320, 327 (N.D. Ill. 2005)). Here, Defendants received notice of the November 21st and 11 22nd depositions on November 4, 2013. ECF No. 108-2 (“Ritterbeck Decl.”) at 2; see also ECF 12 No. 108-2, Exhs. A & B. The notices stated that Donna Bishop would be deposed on November 13 22, 2013 and Janice Gross would be deposed on November 21, 2013. Id. That means that 14 Defendant was given seventeen and eighteen days notice of the depositions which is more than 15 reasonable.1 After learning about a scheduling conflict for Ms. Bishop, Plaintiff switched Ms. 16 Bishop’s deposition to November 21, 2013 and Ms. Gross’s to November 22, 2013. Ritterbeck 17 Decl. at 2-3. Accordingly, Plaintiff issued amended notices of the deposition and served those 18 on Defendants on November 12, 2013. Id.; see also ECF No. 108-2, Exhs. D & E. Defendants 19 cite no law in support of the idea that simply switching the depositions reset the clock on 20 reasonable notice, and, even if they had, Defendants still had nine and ten days notice which, 21 given the circumstances of this case, constitutes reasonable notice.2 Also, since defense counsel 22 was aware of the depositions as early as November 4, 2013, he should have been aware of his 23 conflicting “prior commitments” and attempted to resolve them or seek the Court’s assistance 24 before the eleventh hour. Raising the issue for the first time on November 13, 2013, does not 25 1 26 27 28 The Notices also properly contained the time and places of the deposition along with the names and addresses of the deponents. See ECF No. 108-2, Exhs. A & B. 2 Commonly, courts find that notice of at least five days is sufficient for a party's deposition. Gamoa v. King County, 2008 WL 509324, *1 (W.D. Wah. Feb. 22, 2008) (citing Paige v. Commissioner, 248 F.R.D. 272, 275 (C.D. Cal.) (finding that fourteen days' notice was reasonable) and Jones v. United States, 720 F. Supp. 355, 366 (S.D.N.Y. 1989) (holding that eight days' notice was reasonable)). 3 10cv578-BTM (BLM) 1 support Defendants’ argument for good cause. 2 Second, Defendants have failed to provide any details regarding Defendant Foster’s and 3 defense counsel Negele’s alleged conflicts with the noticed depositions. ECF Nos. 104-1 & 104-2. 4 Counsel simply states that the dates conflict with his calendar, he “cannot move his existing 5 commitments and it is impossible for him to attend those depositions,” and the “dates were not 6 convenient for [his] schedule, nor [Defendant] Foster’s schedule.” Id. Counsel’s failure to 7 provide any explanation or description of the alleged conflicts and of his efforts to resolve the 8 conflicts without moving the properly noticed depositions prevents this Court from evaluating the 9 validity of the alleged conflicts. When this lack of detail is coupled with counsel’s lengthy delay 10 in objecting to the depositions, the Court finds that Defendants have not established good cause 11 justifying the requested protective order. 12 Next, while defense counsel has filed a motion for leave to withdraw as counsel of record 13 [ECF No. 106] that is set to be heard on January 10, 2013, he has failed to adequately explain 14 how or why this constitutes good cause for a protective order stopping the scheduled 15 depositions. Instead, counsel merely states a conflict has recently arisen between his law firm 16 and Defendants and that there has been “a complete breakdown of communications between 17 [his] office and [Defendants]” that is so severe he is unable to continue his representation. ECF 18 No. 104-1 at 2; see also ECF No. 104-2 at 5-6. Defense counsel fails to provide any law or 19 factual basis supporting his position that he cannot appear and defend Defendants’ interest at 20 the upcoming depositions. Counsel and his law firm are the attorneys of record unless and until 21 the pending motion to withdraw is granted and as such, must continue to satisfy their obligation 22 as counsel. While there may be a conflict between counsel and Defendants3, defense counsel 23 has not identified any ethical obligation or professional rule of conduct which would prohibit him 24 from participating in the scheduled depositions. 25 26 27 28 3 From the details provided by Plaintiff [ECF No. 108 at 4-5], it appears that the conflict arises from the fact that Defendant Sonia Foster filed a declaration in this case stating that her mother was diagnosed with cancer and then died. [id. at 5] and the noticed depositions include the deposition of Ms. Foster’s mother. Given the unique history of this case, the Court finds that this conflict does not justify the continuance of these two depositions. 4 10cv578-BTM (BLM) 1 Finally, the deponents at issue are critical witnesses whose testimony has the potential 2 to greatly impact the course of this litigation. From the declarations provided by Plaintiff’s 3 counsel, it appears as though that impact will be negative for Defendants. In light of that, this 4 motion appears to be another attempt by Defendants to avoid discovery and delay the progress 5 of the case which has been pending for three years, eight months and two days.4 Discovery is 6 set to close in this matter on December 20, 2013 and Defendants have requested that it be 7 continued until Defendants secure new counsel. ECF Nos. 101 at 3, 104-1 at 1 & 104-2 at 6. 8 Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only “for good 9 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also ECF No. 21 at 7 (stating 10 that dates “will not be modified except for good cause shown”). The Rule 16 good cause 11 standard focuses on the “reasonable diligence” of the moving party. Noyes v. Kelly Servs., 488 12 F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th 13 Cir. 2000) (stating Rule 16(b) scheduling order may be modified for “good cause” based primarily 14 on diligence of moving party). Essentially, “the focus of the inquiry is upon the moving party’s 15 reasons for seeking modification.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 16 (9th Cir. 1992). However, a court also may consider the “existence or degree of prejudice to the 17 party opposing the modification . . . .” Id. Here, the Court has stayed or continued various 18 discovery deadlines in the case on at least seven different occasions. See ECF Nos. 24, 26, 30, 19 33, 78, 98, & 101. While the Court understands there is a conflict between defense counsel and 20 Defendants, an additional continuance of the discovery deadline at this time would greatly 21 prejudice Plaintiff and Defendants have not established good cause and reasonable diligence 22 justifying essentially a stay of discovery pending the resolution of the motion to withdraw. If the 23 District Judge grants Defendants’ motion to withdraw as counsel, the Court will entertain a new 24 motion to extend discovery. Accordingly, Defendants’ current request to continue the discovery 25 deadline until Defendants obtain new counsel is DENIED. 26 Plaintiff requests that it be permitted to “recover its costs, including its reasonable 27 28 4 The complaint in the case was filed on March 18, 2010. See ECF No. 1. 5 10cv578-BTM (BLM) 1 attorneys’ fees, in opposing this Motion” pursuant to FRCP 26(c)(3) and 37(a)(5)(B). ECF No. 2 108 at 8. In accordance with FRCP 37(a)(5)(B), if a motion for a protective order is denied, the 3 Court “must, after giving an opportunity to be heard, require the movant, the attorney filing the 4 motion, or both to pay the party or deponent who opposed the motion its reasonable expenses 5 incurred in opposing the motion, including attorney's fees” unless the motion was substantially 6 justified or other circumstances make an award of expenses unjust. Given that the deposition 7 notices were served within a reasonable amount of time and that defense counsel failed to raise 8 the issue of a scheduling conflict with opposing counsel until November 13, 2013 [Ritterbeck 9 Decl. at 4], or the Court until November 15, 2013 [ECF No. 103], Defendants’ motion was not 10 substantially justified. Accordingly, Plaintiff’s request for payment of expenses is GRANTED. 11 Plaintiff’s counsel must submit a declaration detailing the costs and attorney’s fees it incurred in 12 opposing the motion on or before December 11, 2013. Defendants may file a response to 13 the declaration on or before December 18, 2013. 14 IT IS SO ORDERED. 15 DATED: November 20, 2013 16 17 18 BARBARA L. MAJOR United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 6 10cv578-BTM (BLM)

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