May v. Brunton

Filing 42

ORDER denying 38 Motion for Extension of Time to Complete Discovery. For the reasons expressed in the attached Order, Defendant's motion to re-open discovery is DENIED. Signed by Magistrate Judge Mitchell D. Dembin on 12/12/13. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMY MAY,

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v.

CASE NO. 12cv2860-W (MDD)
Plaintiff,

ORDER DENYING
DEFENDANT’S MOTION TO
REOPEN DISCOVERY

BRUCE K. BRUNTON,
individually and as trustee of the
Bruce K. Brunton Revocable
Trust dated September 5, 2008,

[ECF NO. 38]

Defendant.
On December 2, 2013, Defendant filed a motion to reopen discovery
so that Defendant could depose Plaintiff and a “newly disclosed” witness.
(ECF No. 38). Plaintiff responded in opposition on December 11, 2013.
(ECF No. 41). The Court finds that Defendant has not presented good
cause sufficient for the Court to order discovery to re-open. Accordingly,
Defendant’s motion is DENIED.
Background
On November 30, 2012, May filed an action against her landlord,
Defendant Bruce K. Brunton (“Brunton”), for discrimination and
harassment on the basis of sex in violation of the federal Fair Housing
Act and related state laws. (ECF No. 1, ¶ 1, 16-35). On April 11, 2013,
after the pleadings were settled and following a case management
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12cv2860-W (MDD)

1 conference, the Court issued a Scheduling Order governing the progress
2 of this case. (ECF No. 29). Paragraph 3 of the Scheduling Order
3 provides, in part:
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8 (Id.).

All discovery, including experts, shall be completed by all
parties on or before October 28, 2013. "Completed" means
that all discovery under Rules 30-36 of the Federal Rules of
Civil Procedure, and discovery subpoenas under Rule 45,
must be initiated a sufficient period of time in advance of the
cut-off date, so that it may be completed by the cut-off date,
taking into account the times for service, notice and response
as set forth in the Federal Rules of Civil Procedure.
Legal Standard

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Federal Rule of Civil Procedure 16(b)(4) provides “[a] schedule may

11 be modified only for good cause and with the judge’s consent.” The Ninth
12 Circuit has held that “Rule 16(b)’s ‘good cause standard’ primarily
13 considers the diligence of the party seeking amendment.” Johnson v.
14 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “Although
15 the existence or degree of prejudice to the party opposing modification
16 might supply additional reasons to deny a motion, the focus of the
17 inquiry is upon the moving party’s reasons for seeking modification.” Id.
18 (internal citations omitted).
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Discussion
In support of his motion, Defendant asserts that he pursued

21 discovery diligently but could not meet the discovery deadline. (ECF No.
22 38 at 2). Specifically, he states that Plaintiff successfully avoided being
23 deposed in a state court case in which Defendant sued Plaintiff for
24 unlawful detainer and, as a consequence, “caus[ed] a cloud of uncertainty
25 to linger over the overall disputes between the parties (in both cases).”
26 (Id.). Defendant also claims that Plaintiff only recently divulged the
27 name of a new witness and Defendant did not have enough time to notice
28 that witness for deposition. (Id.).
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12cv2860-W (MDD)

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Newly Disclosed Witness

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Regarding the newly disclosed witness, Plaintiff asserts that the

3 witness (Defendant’s ex-girlfriend) was identified by Defendant during
4 his deposition on April 16, 2013. Her identity and the nature of the
5 information she possesses are known to Defendant. It appears that on
6 November 11, 2013, Plaintiff amended her disclosures under
7 Fed.R.Civ.P. 26(a) to include the ex-girlfriend as someone who may have
8 discoverable information that Plaintiff may use to support her claims.
9 That supplemental disclosure by Plaintiff, argues Defendant, justifies re10 opening discovery so that he may seek to have her deposed.
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Fed.R.Civ.P. 26(e) requires a party to supplement disclosures only

12 if the additional or corrective information has not otherwise been made
13 known to the other party during the discovery process. The identity of
14 the newly disclosed witness and the nature of the information that she
15 may possess was disclosed during Defendant’s deposition. Accordingly,
16 it was not necessary, although it was good practice, for Plaintiff to
17 supplement her disclosures under Rule 26(a).
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That supplemental disclosure does not constitute good cause to re-

19 open discovery even for the limited purpose of obtaining the ex20 girlfriend’s deposition.
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Deposition of Plaintiff

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Regarding the deposition of Plaintiff, Plaintiff claims that

23 Defendant did not serve Plaintiff with a notice of deposition until
24 October 28, 2013, the deadline for discovery to close in this case. With
25 regard to the state case, Plaintiff claims that her counsel opposed her
26 deposition in that case as harassing but did offer to submit to a joint
27 deposition covering both cases by letter dated May 27, 2013. Plaintiff
28 also offered herself for deposition in June, 2013. According to Plaintiff,
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1 Defendant did not respond. (ECF No. 41 at 7).
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Regardless, Defendant’s notice of deposition of Plaintiff, served on

3 October 28, 2013, was not timely. Discovery closed on that day. The
4 Scheduling Order required that the notice be served sufficiently in
5 advance of the close of discovery so that the discovery could be
6 completed. (ECF No. 29 ¶3). It is not relevant that Plaintiff successfully
7 avoided deposition in the unlawful detainer action brought by Defendant
8 against her. If Defendant wanted her deposition in this case, he had
9 ample opportunity to notice it well in advance of the close of discovery.
10 The Court finds that the delay in seeking to obtain Plaintiff’s deposition
11 was not justified and reflects a lack of diligence. The Court further finds
12 that Defendant is not significantly prejudiced - he has the right to
13 examine or cross-examine Plaintiff at trial in this case.
Conclusion

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For the foregoing reasons, Defendant’s motion to re-open discovery

16 is DENIED.
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IT IS SO ORDERED.

18 DATED: December 12, 2013
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Hon. Mitchell D. Dembin
U.S. Magistrate Judge

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