Lacy v. American Biltrite, INC. Employees Long Term Disability Plan et al

Filing 39

ORDER denying Plaintiff's 16 Motion to Amend Scheduling Order to Allow Filingof Motion to Compel and Completion of Discovery. Signed by Magistrate Judge Ruben B. Brooks on 3/16/2012. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MATTHEW LACY,

)
)
)
Plaintiff,
)
v.
)
)
AMERICAN BILTRITE, INC.,
)
)
EMPLOYEES LONG TERM DISABILITY
PLAN and/or CONGOLEUM CORPORATION )
EMPLOYEES LONG TERM DISABILITY
)
PLAN, METROPOLITAN LIFE INSURANCE )
COMPANY,
)
)
Defendants.
)
)

Civil No. 10cv0830 JM(RBB)
ORDER DENYING PLAINTIFF’S
MOTION TO AMEND SCHEDULING
ORDER TO ALLOW FILING OF MOTION
TO COMPEL AND COMPLETION OF
DISCOVERY [ECF NO. 16]

On June 17, 2011, Plaintiff filed a Motion to Amend Scheduling

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Order to Allow Filing of Motion to Compel and Completion of

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Discovery, along with a Memorandum of Points and Authorities, the

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Declaration of George De La Flor, and exhibits [ECF No. 16].

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several joint requests to continue the hearing on the Motion, on

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January 9, 2012, Defendants' Opposition to Plaintiff's Motion to

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Amend Scheduling Order to Allow Filing of Motion to Compel and

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Completion of Discovery was filed, along with the Declaration of

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Robert K. Renner and exhibits [ECF No. 30].

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Defendant's Opposition to Motion to Amend Scheduling Order was

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After

Plaintiff's Reply to

10cv0830 JM(RBB)

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filed on January 16, 2012 [ECF No. 32].

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suitable for determination without oral argument.

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Civ. L.R. 7.1(d)(1).

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The Court finds the Motion
See S.D. Cal.

In his Motion to Amend Scheduling Order, the Plaintiff seeks

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to extend the time allowed to complete discovery and to file

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pretrial motions by ninety days.

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ECF No. 16; id. Attach. #1 Mem. P. & A. 9.)

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to amend the Scheduling Order for a period of time sufficient to

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allow the “parties” to file appropriate motions to compel.

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(Mot. Amend Scheduling Order 1-2,
Plaintiff also seeks

(Mot.

Amend Scheduling Order 1-2, ECF No. 16.)

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I.

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FACTUAL BACKGROUND

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Plaintiff Matthew Lacy brought this lawsuit to recover ERISA

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benefits.

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he was employed as a salesman for Defendant Congoleum Corporation,

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which is a subsidiary of Defendant American Biltrite, Inc.

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2, ECF No. 1.)

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with those companies.

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Company was the group insurance provider and administrator of the

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plan.

On April 19, 2010, Lacy filed a Complaint alleging that

(Compl.

Lacy was covered by a long-term disability plan
(Id.)

Defendant Metropolitan Life Insurance

(Id.)
Plaintiff asserts that in 2002 he suffered a traumatic brain

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injury during the course of his employment.

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he alleges he was injured by a flying golf ball while entertaining

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clients on a golf course.

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not informed of the benefits available under the company disability

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plan.

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of rehabilitation.

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health began to decline, and he was unable to work.

(Id. at 3.)

(Id. at 2-3.)

(Id.)

Specifically,

At that time, Lacy was

The Plaintiff returned to work after a period
(Id.)

Lacy maintains that in May 2007, his

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(Id.)

10cv0830 JM(RBB)

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Plaintiff applied for disability benefits after the qualifying

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time, but his claim was denied because he had been deemed capable

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of working.

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(Id.)

Lacy’s appeals of the denial were all denied.

(Id.)

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II.

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PROCEDURAL HISTORY

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This Motion to Amend has a protracted history.

On September

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24, 2010, the Court held a case management conference and issued

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the Case Management Conference Order Regulating Discovery and Other

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Pretrial Proceedings [ECF No. 11].

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for May 23, 2011, and trial was scheduled for November 21, 2011.

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(Case Management Conference Order 6, ECF No. 11.)

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settlement conferences on February 8, March 8, April 19, and June

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15, 2011 [ECF Nos. 12-15].

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June 17, 2011, and it was set to be heard on July 25, 2011.

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Amend 1, ECF No. 16.)

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The discovery cutoff was set

This Court held

Plaintiff filed this Motion to Amend on
(Mot.

On June 30, 2011, the parties filed their first joint request

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seeking to continue the motion hearing thirty days [ECF No. 19].

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Plaintiff's lead attorney at the time, George de la Flor, had a

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heart attack on June 27, 2011, which was the basis for the parties'

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request to continue.

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19.)

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George de la Flor.

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motion hearing to September 6, 2011 [ECF No. 20].

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(Joint Mot. Thirty-Day Continuance 2, ECF No.

Co-counsel of record, James Vallee, remained on the case with
The Court granted the request and continued the

On July 27, 2011, the parties filed a second joint motion to

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continue the hearing on the Motion to Amend as well as all of

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outstanding dates in the scheduling order by 120 days, in light of

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de la Flor’s health [ECF No. 21].

The request was granted on July

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10cv0830 JM(RBB)

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29, 2011, and the hearing on Plaintiff's Motion to Amend was

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continued to December 12, 2011 [ECF Nos. 23, 24].

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continued to March 26, 2012, but the May 23, 2011 discovery cutoff

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was not reopened and continued.

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Continue Certain Dates 2, ECF No. 23.)

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continuance does not apply to any deadlines in the Scheduling Order

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that had already lapsed on June 27, 2011, specifically the May 23,

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2011 discovery cutoff.”

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Trial was

(Order Granting Joint Mot.
The Court stated, “The

(Id.)

Approximately two and one-half months later, on October 12,

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2011, attorney Jeffrey Metzger filed a request to substitute as

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counsel of record in place of George de la Flor and his co-counsel,

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James Vallee; the district court approved the request [ECF Nos.

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25-26].

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The parties filed a third joint motion to extend the hearing

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date and briefing schedule relating to Plaintiff's Motion to Amend,

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which had been filed more than five months earlier [ECF No. 27].

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The parties asserted that Plaintiff's new counsel, Jeffrey Metzger,

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had informed Defendants “that based on his review of the previously

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propounded discovery, he was not inclined to pursue the vast

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majority of it.”

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Court granted the parties' request and continued the motion hearing

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to January 23, 2012 [ECF No. 28].

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Amend Scheduling Order under submission [ECF N0. 29].

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2012, the Defendants filed an Opposition to Plaintiff’s Motion to

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Amend [ECF No. 30].

(Joint Mot. Br. Continuance 1, ECF No. 27.)

The

The Court took the Motion to
On January 9

Plaintiff’s Reply to Defendants’ Opposition

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27
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10cv0830 JM(RBB)

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was filed on January 16, 2012, by Lacy’s current attorney, Jeffrey

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Metzger [ECF Nos. 30, 32].1
Next, the parties filed a joint motion to vacate the February

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24, 2012 pretrial conference and asked for leave to file

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simultaneous opening and responding trial briefs in lieu of

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standard pretrial contentions [ECF No. 34].

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granted the parties' request and scheduled oral argument for March

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26, 2012 [ECF No. 35].

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argument be continued in light of the pending Motion to Amend, and

The district court

The parties then asked that the oral

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the district court reset the hearing date for June 4, 2012 [ECF

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Nos. 37-38].

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filed by April 30, 2012, and responding trial briefs must be filed

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by May 21, 2012 [ECF No. 38].

Under the current schedule, opening briefs must be

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III.

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LEGAL STANDARDS

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District courts are given broad discretion in supervising the

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pretrial phase of litigation.

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Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)).

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Federal Rule of Civil Procedure 16(b) provides that district courts

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must issue scheduling orders to establish deadlines for, among

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other things, the time to complete discovery and file motions.

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Fed. R. Civ. P. 16(b)(3)(A).

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be modified only for good cause and with the judge's consent."

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Fed. R. Civ. P. 16(b)(4).

Zivkovic v. Southern Cal. Edison

The dates in a scheduling order "may

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Although Plaintiff has retained new counsel, the events
giving rise to the Motion to Amend took place while Lacy was
represented by two attorneys, George de la Flor and James Michael
Vallee.
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10cv0830 JM(RBB)

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In assessing whether there is "good cause" under Rule 16(b),

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the court "primarily considers the diligence of the party seeking

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the amendment" and the "moving party's reasons for seeking

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modification."

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1087 ("The pretrial schedule may be modified 'if it cannot

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reasonably be met despite the diligence of the party seeking the

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extension.'") (citation omitted).

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seeking to extend deadlines is the touchstone for deciding whether

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the request should be granted.

Johnson, 975 F.2d at 609; see Zivkovic, 302 F.3d at

The diligence of the party

"Although the existence or degree

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of prejudice to the party opposing the modification might supply

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additional reasons to deny a motion, the focus of the inquiry is

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upon the moving party's reasons for seeking modification.

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party was not diligent, the inquiry should end."

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at 609 (internal citation omitted).

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compatible with a finding of diligence and offers no reason for a

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grant of relief.”

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372 (9th Cir. 1985) (discussing Rule 4(j) of the Federal Rules of

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Civil Procedure and holding that the inadvertent failure to

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calendar a deadline did not constitute excusable neglect or good

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cause).

If that

Johnson, 975 F.2d

“[C]arelessness is not

Id.; see Wei v. State of Hawaii, 763 F.2d 370,

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IV.

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DISCUSSION

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The Plaintiff seeks to extend the time allowed to complete

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discovery and file pretrial motions, including motions to compel.

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(Mot. Amend Scheduling Order 1-2, ECF No. 16; id. Attach. #1 Mem.

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P. & A. 9.)

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further response to written discovery that was served after the

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March 21, 2011 deadline.

First, Lacy desires to file a motion to compel a

(See id. Attach. #1 Mem. P. & A. 2-3.)

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10cv0830 JM(RBB)

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Counsel states that he “inadvertently overlooked the sentence at

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page 2 of the Order providing, ‘All interrogatories and document

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production requests must be served by March 21, 2011.’”

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2.)

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testimony after the discovery cutoff; he ignores the related

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thirty-day deadline to act on objections to discovery.

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2-3.)

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the proposed motions to compel are untimely on several grounds.

(Id. at

Second, Plaintiff requests leave to move to compel deposition

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(See id. at

As discussed below, the Motion to Amend Scheduling Order and

Lacy argues that both the written and oral discovery he seeks

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to compel are "fully permissible" in an ERISA action and are

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"vitally important" to the preparation and presentation of his

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case.

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plaintiffs in ERISA lawsuits to obtain discovery beyond the

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administrative record where an inherent conflict exists.

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6.)

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whether the insurance plan administrator followed appropriate

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procedures in deciding the claim.

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maintains that the plan administrator had a dual responsibility for

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determining whether a plan participant was eligible for disability

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benefits and for paying those benefits.

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requested information is critical to determine whether this

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inherent conflict of interest influenced Defendants' decision to

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deny benefits.

(Id. at 4.)

He asserts that Ninth Circuit law permits

(Id. at

Plaintiff contends that discovery is necessary to ascertain

(Id. at 7.)

In this case, Lacy

(Id. at 6-7.)

Thus, the

(Id. at 6, 8-9.)

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At the eleventh hour, Lacy’s attorneys filed this Motion to

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extend lapsed deadlines and cure the timeliness issues raised by

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their discovery requests.

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discovery to develop a conflict for the ERISA plan administrator

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that would affect the standard of review and provide information so

They appear to seek wide-ranging

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10cv0830 JM(RBB)

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the district court could conduct a de novo review of the plan

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administrator’s decision.

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Co., 458 F.3d 955, 968, 971 (9th Cir. 2006) (en banc).

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A.

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See Abatie v. Alta Health & Life Ins.

Written Discovery
Lacy's request to extend deadlines so that he can move to

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compel further responses to his interrogatories, requests for

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admissions, and requests for production of documents is untimely on

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two grounds.

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discovery that was served on April 13, 2011, nearly one month after

First, he seeks to compel responses to written

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the March 21, 2011 deadline for serving interrogatories and

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requests for production.

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deadlines was filed on June 17, 2011, after the May 23, 2011 close

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of all discovery.

Second, the Motion seeking to extend

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1.

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On September 24, 2010, this Court issued a Case Management

Discovery served after the written discovery cutoff

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Conference Order Regulating Discovery and Other Pretrial

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Proceedings [ECF No. 11].

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interrogatories and document production requests must be served by

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March 21, 2011."

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Lacy's attorneys did not serve the interrogatories, requests for

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production of documents, and requests for admissions until April

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13, 2011.

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that date.

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There, the Court instructed, "All

(Case Management Conference Order 2, ECF No. 11.)

In fact, they failed to conduct any discovery before

Attorney de la Flor stated that he -- and presumably his co-

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counsel -- inadvertently overlooked the March 21, 2011 written

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discovery deadline and thought that all discovery, including

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written, had to be completed by May 23, 2011.

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Scheduling Order Attach. #2 Decl. de la Flor 3, ECF No. 16.)

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(Mot. Amend
He

10cv0830 JM(RBB)

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asserts he erroneously calendared the cutoff date to serve

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discovery as April 20, 2011, and waited until “the adverse Social

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Security ruling was entered and the appeal underway” before taking

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any discovery.

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merely submits, "By the time of the April 19 [settlement]

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conference, I had learned that Plaintiff had been denied his SSDI

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claim.

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propounded the first round of discovery in this matter [on April

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13, 2011]."

(Id.)

In his declaration, Plaintiff's counsel

Approximately contemporaneous with my getting this news, I

(Id. at 2-3.)

Counsel does not specify when he and

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his co-counsel, James Vallee, actually learned of the adverse

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ruling, even though de la Flor attributed the nearly seven-month

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delay in commencing discovery to the fact that Lacy’s social

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security claim was still pending.

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The Social Security Administration informed Plaintiff Lacy

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that his request for benefits was denied on December 9, 2010.

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(Opp'n Attach. #2 Ex. A, at 6-8, ECF No. 30.)

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Plaintiff's attorney for the social security matter, also received

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a copy of the denial letter.

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the date of the decision, Plaintiff had more than three months to

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propound written discovery before the March 21, 2011 cutoff.

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March 8, 2011, Plaintiff’s co-counsel forwarded a copy of the

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social security ruling to defense counsel.

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A, at 2, ECF No. 30.)

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serve written discovery before the March 21, 2011 deadline.

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waited until April 13, 2011, when Lacy’s counsel served

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interrogatories, requests for admissions, requests for product of

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documents, and deposition notices.

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after the Court issued its scheduling order, four months after

Amit Vagal,

(Id.; see Opp'n 4, ECF No. 30.)

From

On

(Opp'n Attach. #2 Ex.

Even then, Lacy's attorneys had two weeks to

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They

This was almost seven months

10cv0830 JM(RBB)

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Plaintiff learned of the adverse administrative decision, one month

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after Lacy's counsel informed defense counsel of the adverse

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decision, and twenty-three days after the deadline to complete

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written discovery.

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2.

Motion to Amend filed after the close of all discovery

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The scheduling order provides, "All discovery shall be

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completed by all parties on or before May 23, 2011; this includes

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discovery ordered as a result of a discovery motion."

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Management Conference Order 1, ECF No. 11) (emphasis added).

(Case
Thus,

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the attorneys were required to initiate all discovery in advance of

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the cutoff date so that it may be completed by that date, taking

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into account time for service, responses, and motions to compel.

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The Defendants objected to the Plaintiff’s written discovery

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on timeliness grounds on May 16, 2011.

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before the discovery cutoff, during which Lacy could have either

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filed a motion or requested an extension of time to do so.

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Nonetheless, Lacy let the May 23, 2011 discovery cutoff pass.

There was still one week

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3.

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The procedural posture of this case has vastly changed since

Analysis

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Lacy filed this Motion, more than eight months ago.

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according to Plaintiff, "relatively little activity" had occurred

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in the case, and litigation was essentially in a "holding pattern"

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while he pursued, and appealed the denial of, his request for

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disability benefits.

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P. & A. 1-2.)

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of time, trial was nearly five months away, and the case was in a

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"relatively dormant" state pending the outcome of the social

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security appeal.

At that time,

(Mot. Amend Scheduling Order Attach. #1 Mem.

The Plaintiff had not sought any previous extensions

(Id. at 3, 9.)

Lacy justified his request for

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10cv0830 JM(RBB)

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leave to amend the scheduling order, in part, because he sought to

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address the issue early to avoid the production and review of

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documents "at the outset of trial."

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the adverse social security decision is pending, trial has been

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continued twice, and oral argument is set for June 4, 2012, with

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initial trial briefs due on April 30, 2012.

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was nearly ten months ago.

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9

(Id. at 9.)

Now, an appeal of

The discovery cutoff

Despite the current procedural landscape, however, the inquiry
is whether Plaintiff's lawyers were diligent from the time the

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Court issued its scheduling order on September 24, 2010, to when

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they first initiated discovery on April 13, 2011.

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that counsel were diligent in prosecuting the case and that the

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service of written discovery after the deadline was the result of

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excusable inadvertence.

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Mem. P. & A. 5, ECF No. 16.)

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substantially prejudiced if he is not permitted to complete

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discovery because the requested information is essential to the

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full and fair consideration of his case.

Plaintiff argues

(Mot. Amend Scheduling Order Attach. #1
Lacy alleges that he would be

(Id.)

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Plaintiff cites the multi-factor test outlined in United

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States v. First National Bank of Circle, 652 F.2d 882, 887 (9th Cir

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1981), to argue that leave to amend is appropriate.

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Scheduling Order Attach. #1 Mem. P. & A. 4, ECF No. 16.)

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decision, however, dealt with amending the pretrial order.

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standard for amending pretrial conference orders is “to prevent

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manifest injustice.”

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the scheduling order, Federal Rule of Civil Procedure 16(b)

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applies, and the inquiry is whether the movant was diligent.

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Zivkovic, 302 F.3d at 1087.

Fed. R. Civ. P. 16(e).

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(Mot. Amend
That
The

For requests to amend

10cv0830 JM(RBB)

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In the Opposition, Defendants insist that waiting to initiate

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discovery until one week before what Plaintiff's attorneys believed

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to be the deadline for discovery is far from diligent.

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ECF No. 30.)

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was central to Lacy's case, counsel should have taken affirmative

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steps to stay this litigation or continue the dates outlined in the

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scheduling order.

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by Your Honor were firm deadlines, and -- even if Plaintiff's

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attorneys apparently chose to ignore them -- they continued to tick

(Opp'n 1,

Defendants allege that if a social security ruling

They argue, "[T]he dates assigned

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by."

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attorneys knew of the adverse social security decision on December

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9, 2010, or at the latest, on March 8, 2011.

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Plaintiff's attorneys were diligent, they should have initiated

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discovery immediately upon receipt of the administrative decision.

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(Id. at 4.)

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the additional ground that they will be substantially prejudiced

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because of increased litigation costs and a further delay of the

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trial.

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(Id. at 3.)

(Id. at 2.)

The Defendants also contend that Plaintiff's

(Id. at 3-4.)

If

Defendants urge that the Motion should be denied on

(Id. at 10-11.)

"A scheduling order is not a frivolous piece of paper, idly

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entered, which can be cavalierly disregarded by counsel without

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peril."

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orders establishing a firm discovery cutoff date is commonplace,

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and has impacts generally helpful to the orderly progress of

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litigation, so that the enforcement of such an order should come as

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a surprise to no one."

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Circuit has articulated the importance of scheduling orders:

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28

Johnson, 975 F.2d at 610 (quotation omitted).

Cornwell, 439 F.3d at 1027.

"The use of

The Ninth

In these days of heavy caseloads, trial courts in both
the federal and state systems routinely set schedules and
establish deadlines to foster the efficient treatment and

12

10cv0830 JM(RBB)

1

6

resolution of cases. Those efforts will be successful
only if the deadlines are taken seriously by the parties,
and the best way to encourage that is to enforce the
deadlines. Parties must understand that they will pay a
price for failure to comply strictly with scheduling and
other orders, and that failure to do so may properly
support severe sanctions and exclusions of evidence. The
Federal Rules of Civil Procedure explicitly authorize the
establishment of schedules and deadlines, in Rule 16(b),
and the enforcement of those schedules by the imposition
of sanctions, in Rule 16(f).

7

Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir.

8

2005).

2
3
4
5

9

Here, even accepting counsel’s claimed misunderstanding of the

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scheduling order, Plaintiff was not diligent by foregoing all

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discovery for nearly seven months.

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(“[C]arelessness is not compatible with a finding of diligence and

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offers no reason for a grant of relief.”); see also Wei v. State of

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Hawaii, 763 F.2d at 372 (concluding that the inadvertent failure to

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calendar a deadline was neither excusable neglect nor good cause).

16

Without an order extending the discovery deadlines or staying the

17

litigation, the dates in this Court's scheduling order were not

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suspended while Lacy’s attorneys waited for a ruling on Plaintiff’s

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claim for social security benefits.

20

(finding that plaintiff’s decision to forgo taking the deposition

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of a third-party witness while discovery was open was unreasonable

22

and “not a diligent pursuit of discovery opportunities”).

23

Johnson, 975 F.2d at 609

See Cornwell, 439 F.3d at 1026

Furthermore, the discovery at issue is unrelated to Lacy’s

24

claim for social security benefits.

Separate sets of the twenty-

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seven requests for admission, five interrogatories, and twenty-

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seven requests for production of documents were served on each of

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the two Defendants.

28

la Flor Decl. 3, ECF No. 16.)

(See Mot. Amend Scheduling Order Attach. #2 de
Except for affecting the amount of

13

10cv0830 JM(RBB)

1

ERISA benefits that may be payable, the social security ruling has

2

little relation to Lacy’s claim for ERISA benefits.

3

Attach. #3, Exs. 2, 3, 4.)

4

social security benefits is still unresolved, because he has

5

appealed the decision denying his claim.

6

reason for not pursuing discovery earlier falls short and indicates

7

that Lacy’s attorneys were not diligent.

Furthermore, Plaintiff’s entitlement to

Thus, the proffered

Long before filing this Motion, Plaintiff knew that his

8
9

(See id.

request for social security benefits was denied.

See Du Maurier v.

10

Laguna Beach Police Dep't, Nos. SA CV 10-1855 SJO(JCG), 10-01976

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SJO(JCGx), 2011 U.S. Dist. LEXIS 143658, at *7 (C.D. Cal. Sept. 2,

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2011) (finding no diligence where plaintiff knew of the facts

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forming the basis of his requested motion one month in advance of

14

the relevant deadline).

15

written discovery, he should have sought an extension of time.

16

Plaintiff’s written discovery was served after the Court-imposed

17

deadlines, and his attorneys have not shown that they were

18

diligent.

19

Cir. 2002) (finding lack of diligence where movant had “ample

20

opportunity to conduct discovery,” but failed to do so); see also

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Cornwell, 439 F.3d at 1027 ("We decline to limit the district

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court's ability to control its docket by enforcing a discovery

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termination date, even in the face of requested supplemental

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discovery that might have revealed highly probative evidence, when

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the plaintiff's prior discovery efforts were not diligent.")

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B.

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If Lacy needed additional time to serve

See Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th

Depositions
The Plaintiff also seeks leave to file a motion to compel

deposition testimony, which is untimely.

14

First, although Lacy

10cv0830 JM(RBB)

1

received the Defendants’ objections to the deposition notices on

2

May 5, 2011, he did not file a motion to compel the deposition

3

testimony before the May 23, 2011 discovery cutoff.

4

Plaintiff filed this Motion to Amend on June 17, 2011, one and

5

one-half months after receiving the objections.

6

failed to satisfy the meet and confer requirements set forth in the

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local rules, constituting an additional procedural defect with the

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proposed motion to compel.

9
10

1.

Instead, the

Moreover, Lacy

Deadline for filing a motion to compel

On April 13, 2011, Plaintiff also served Defendants with a

11

notice of taking depositions.

(Mot. Amend Scheduling Order Attach.

12

#1 Mem. P. & A. 2, ECF No. 16.)

13

individuals, Natalie Kern, Matt Szuba, JoAnne Fiore, Lisa

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Touloumjian, and Eric Kelly.

15

Plaintiff also sought to take Rule 30(b)(6) depositions on three

16

topics from individuals most knowledgeable at Defendant

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Metropolitan Life Insurance Company.

18

were to take place on May 17, 18, 19, and 23, 2011.

19

The Defendants served objections to the notice of taking

20

depositions on May 5, 2011.

Lacy sought to depose five

(Id. Attach. #3 Ex. 1, at 1.)

(Id. at 2.)

The

The depositions
(Id. at 1-2.)

(Id. Attach. #1 Mem. P. & A. 2-3.)

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In its scheduling order, the Court instructed:

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All motions for discovery shall be filed no later than
thirty (30) days following the date upon which the event
giving rise to the discovery dispute occurred. For oral
discovery, the event giving rise to the discovery dispute
is the completion of the transcript of the affected
portion of the deposition. For written discovery, the
event giving rise to the discovery dispute is the service
of the response.

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24
25
26
27

(Case Management Conference Order 1-2, ECF No. 11.)

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deposition took place, the event giving rise to the dispute was the

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Because no

10cv0830 JM(RBB)

1

service of Defendants' objections on May 5, 2011.

2

Absent the discovery cutoff, ordinarily, the Plaintiff would have

3

had thirty days, or until June 6, 2011, to file a motion to compel.

4

The discovery cutoff, however, lapsed even earlier, on May 23,

5

2011.

6

for raising the issue with the Court.

7

filed a motion to compel after receiving the Defendants’

8

objections, the motion would have been untimely because the

9

discovery cutoff includes hearings on motions to compel and

10

(See id.)

Lacy filed this Motion on June 17, 2011, after the deadline
Even if counsel immediately

discovery ordered as a result of a motion to compel.

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2.

Motion to Amend filed after the close of discovery

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All discovery, including discovery ordered as a result of a

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discovery motion, was to be completed by May 23, 2011.

(Case

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Management Conference Order 1, ECF No. 11.)

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Motion to Amend the scheduling order after the close of all

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discovery.

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2011, when the Defendants served their objections to the notice of

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depositions.

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complete discovery, during which the Plaintiff could have filed a

20

motion to compel or requested an extension of time to do so while

21

the parties attempted to meet and confer.

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letting the discovery cutoff pass, before filing this Motion.

Plaintiff filed this

Lacy became aware of the discovery dispute on May 5,

There were still two weeks before the deadline to

Instead, Lacy waited,

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3.

Failure to meet and confer

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The local rules require parties to attempt to resolve

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discovery disputes through a dialogue before seeking judicial

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intervention.

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Specifically, Civil Local Rule 26.1 provides:

The court will entertain no motion pursuant to Rules 26
through 37, Fed. R. Civ. P., unless counsel will have
previously met and conferred concerning all disputed

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1
2
3

issues . . . . If counsel have offices in the same
county, they are to meet in person. If counsel have
offices in different counties, they are to confer by
telephone. Under no circumstances may the parties
satisfy the meet and confer requirement by exchanging
written correspondence.

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5

S.D. Cal. Civ. R. 26.1(a) (emphasis added).

6

require the moving party to serve and file a certificate of

7

compliance with this rule when filing the motion.

8

R. 26.1(b).

9

Federal Rule of Civil Procedure 16(b), the proposed motion to

10

compel depositions does not comply with Civil Local Rule 26.1.

11

The local rules also

S.D. Cal. Civ.

Although Lacy’s Motion to Amend is brought pursuant to

On June 6, 2011, one month after receiving Defendants' May 5,

12

2011 objections to the notice of depositions, Plaintiff's counsel

13

sent a belated meet-and-confer letter to defense counsel by

14

electronic mail.

15

A. 4, ECF No. 16.)

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a letter by electronic mail, and Plaintiff filed this Motion four

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days later.

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counties, Lacy's attorneys were not required to meet and confer in

19

person with defense counsel before raising the issue with the

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Court.

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required to confer by telephone.

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meet-and-confer attempts made by written correspondence alone,

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which was the extent of counsel's efforts.

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attorneys failed to include a certificate of compliance with the

25

rule when filing his motion.

(Mot. Amend Scheduling Order Attach. #1 Mem. P. &
On June 13, 2011, defense counsel responded in

(Id. at 5.)

Because counsel have offices in different

See S.D. Cal. Civ. R. 26.1(a).
Id.

They were, however,
The local rules prohibit

Id.

Moreover, Lacy's

See S.D. Cal. Civ. R. 26.1(b).

26

4.

27

Lacy does not address why he did not file a motion to compel

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Analysis

deposition testimony before the May 23, 2011 discovery cutoff,

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10cv0830 JM(RBB)

1

which explicitly encompasses discovery ordered as a result of a

2

discovery motion.

3

attempt to meet and confer regarding these deposition disputes

4

before June 6, 2011.

5

confer requirements outlined in the local rules.

6

failure to follow local rules underscores a lack of diligence

7

evidenced by his attorneys’ failure to meet court-imposed

8

deadlines.

Nor did his attorneys explain why they did not

Lacy also failed to comply with the meet and
Plaintiff’s

9

In his Reply, Plaintiff's current attorney argues that the

10

deposition notices were timely served and were noticed for dates to

11

occur before the May 23, 2011 discovery completion deadline.

12

(Reply 4, ECF No. 32.)

13

cause exists to permit him to compel these eight depositions

14

because after receiving Defendants’ May 5, 2011 objections,

15

Plaintiff "diligently pursued seeking his right to take the

16

depositions" by meeting and conferring and then filing the Motion

17

to Amend.

18

The current lawyer also alleges that good

(Id.)

Lacy’s prior attorneys waited nearly seven months, from

19

September 24, 2010, to April 13, 2011, before noticing any

20

depositions.

21

attention by the discovery cutoff or within thirty days of

22

receiving the May 5, 2011 objections.

23

CV-09-2152-PHX-SMM(LOA), 2010 U.S. Dist. LEXIS 122695, at *5 (D.

24

Ariz. Nov. 5, 2010) (denying a motion to compel that was filed more

25

than one month after the deadline for bringing discovery disputes

26

to the court's attention as untimely).

27

not diligent.

28

lapse before seeking relief from the Court on June 17, 2011.

They also did not bring the dispute to the Court's

See Skinner v. Ryan, No.

Plaintiff’s attorneys were

They allowed the May 23, 2011 discovery cutoff to

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10cv0830 JM(RBB)

1

The Plaintiff has exhibited a general disregard for the

2

deadlines set forth in this Court's scheduling order as well as the

3

procedures described in the local rules.

4

cause to amend the scheduling order to permit a motion to compel

5

depositions.

6

good cause inquiry hinges on whether the moving party diligently

7

pursued discovery).

Lacy has not shown good

See Johnson, 975 F.2d at 609 (emphasizing that the

8

V.

9

CONCLUSION

10

For the reasons discussed above, Plaintiff’s Motion to Amend

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Scheduling Order to Allow Filing of Motion to Compel and Completion

12

of Discovery [ECF No. 16] is DENIED.

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IT IS SO ORDERED.

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Dated:

March 16, 2012

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RUBEN B. BROOKS
United States Magistrate Judge

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cc:

Judge Miller
All Parties of Record

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K:\COMMON\BROOKS\CASES\LACY830\Order re Mot. Amend Scheduling Order.wpd

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