Cavner et al v. Airborne Systems North America of CA, Inc. et al
Filing
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ORDER denying without prejudice #75 Renewed Joint Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge Bernard G. Skomal on 2/13/17. (kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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STEVE CAVNER and BETH CAVNER,
Case No.: 15cv2656 LAB (BGS)
Plaintiff,
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v.
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ORDER DENYING RENEWED
JOINT MOTION TO EXTEND FACT
DISCOVERY AND PRETRIAL
MOTION DEADLINES
AIRBORNE SYSTEMS NORTH
AMERICA OF CA, INC. et al.,
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Defendants.
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[ECF No. 75]
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I.
Background
Defendants Aerostar and Airborne Systems North American of CA have filed a
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motion to continue fact discovery and the March 13, 2017 deadline to file pretrial
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motions. (ECF No. 75.) As the Court noted in prior orders addressing the parties
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requests to extend time, this case was filed on November 25, 2015 and the first
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scheduling order issued on February 12, 2016. As part of that order, fact discovery was
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to be completed by August 12, 2016. However, on June 22, 2016, the parties filed a Joint
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Motion to continue the deadline for completion of fact discovery and other remaining
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deadlines for 180 days. The primary basis for the parties’ good cause was the addition of
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other parties which necessarily required additional discovery. In that this was the first
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request to continue and the stated reasons established good cause, the Court granted the
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parties’ request for a 180-day extension of all deadlines without having the parties first
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detail what discovery had been done to date.
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On December 28, 2016, the parties filed a Joint Motion to Continue the Deadline
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for Fact Discovery and Later Deadlines by 90 days. (ECF No. 65.) That Joint Motion
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was denied because the Plaintiffs failed to show diligence in pursing discovery. In
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particular, the Court explained that the parties had not provided information about when
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the discovery that had not been completed had been initiated. And in general, the parties
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had failed to explain why, using due diligence, this remaining discovery could not be
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accomplished within the one year time they had already had available to complete
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discovery.
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On January 13, 2017, Plaintiffs filed a Motion to Continue Fact Discovery by 90
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days. (ECF No. 67.) Defendants did not join the Motion. The Court found Plaintiffs had
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still failed to show diligence in a number of respects, including, waiting five months to
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propound written discovery to Airborne, allowing Aerostar numerous extensions to
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respond to written discovery in light of the fact discovery deadline, failing to initiate
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finding an expert earlier, delaying efforts to inspect the parachute unit, and having failed
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to depose percipient witnesses despite knowing comparative negligence would be an
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issue since January 2016. Despite these rather significant deficiencies in Plaintiff’s
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diligence, or at least in explaining their diligence, the Court took into consideration
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Plaintiffs’ more recent efforts and the prejudice identified that they would likely suffer as
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a result of not being able to complete specific discovery and granted an extension to April
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10, 2017. The extension was limited to the specific fact discovery Plaintiffs identified in
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the Motion.
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On January 26, 2017 the parties filed another Joint Motion seeking an extension
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for all fact discovery to April 10, 2017 and to continue the deadline to file pretrial
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motions. The Joint Motion did not identify what steps Defendants had taken to complete
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discovery in the year provided to do so. There was no explanation why the deadline
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could not be met other than a general statement that Defendants “are unfairly prejudiced
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by the current staggered fact discovery deadlines, in which fact discovery closes for the
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Defendants two months before it closes for Plaintiffs.” (January 26, 2017 Joint Mot. at
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2.) It also failed to identify what discovery has been conducted and what discovery
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remained outstanding for purposes of extending fact discovery. There was no
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identification of any discovery done, discovery that still needed to be done, or any
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explanation why the uncompleted discovery had not been done and could not have been
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done by the deadline. Defendants did not identify when the discovery they sought an
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extension to complete was initiated, and, as relevant, why it was not done sooner. And,
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as to discovery Defendants wanted an extension to complete, they had also failed to
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explain why they waited until two weeks before the deadline to raise it — after the Court
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considered two prior motions to continue the fact discovery deadline, including one they
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refused to join.
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Defendants have now filed a Renewed Motion to extend fact discovery to April 10,
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2017 for Defendants and to extend the March 13, 2017 deadline to file pretrial motions.
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Plaintiffs have not joined the Motion, but Defendants represent that Plaintiffs have
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indicated they will not oppose it.
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II.
Analysis
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As the Court explained in its prior orders, in general, the dates and times set in the
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scheduling order will not be modified except for good cause shown. See Fed. R. Civ. P.
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16(b)(4) (stating “A schedule may be modified only for good cause and with the judge’s
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consent.”). The Ninth Circuit has explained that Rule 16(b)’s good cause standard is
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focused on the diligence of the party seeking the amendment and has stated the inquiry as
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follows: “[t]he district court may modify the pretrial schedule ‘if it cannot reasonably be
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met despite the diligence of the party seeking the extension.’” Johnson v. Mammoth
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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citing Fed. R. Civ. P. advisory
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committee’s notes (1983 amendment)). Additionally, the Court’s Chambers’ Rules
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require that any joint motion to extend the deadlines set by the Court “must include a
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declaration from counsel of record detailing the steps taken to comply with the dates and
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deadlines set in the order, and the specific reasons why deadlines cannot be met, as well
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as specific discovery that has been conducted, and what specific discovery remains
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outstanding.” (Chambers’ Rules at 5.)
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A.
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Defendants’ Motion includes a declaration that indicates that Airborne noticed and
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conducted Plaintiffs’ depositions on January 31, 2017, and it also identifies the numerous
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depositions Plaintiffs have noticed through February 10, 2017. It indicates that as of
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January 25, 2017, Plaintiffs are in possession of the subject parachute system and the
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parties are in the process of scheduling additional depositions. Defendants do not
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identify what discovery they conducted prior to Plaintiffs’ January 31, 2017 depositions,
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but refer to the Declaration of David S. Casey, Jr. offered in support of Plaintiffs’ January
Extension of Fact Discovery Deadline
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13, 2017 Motion as an accurate description of the parties’ written discovery as of that
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date. That declaration identifies the discovery Plaintiffs pursued beginning in July 2016,1
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Defendants’ responses to it, and the parties’ efforts to resolve discovery disputes as to
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written discovery, and the reasons that the discovery Plaintiffs identified was delayed.
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Defendants do not identify what discovery they need an extension to complete.
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Defendants indicate that they cannot identify the discovery they need an extension to
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complete because it is unknown at this time. They argue the issue is not whether they can
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complete discovery by the deadline, but whether they will suffer prejudice in Plaintiffs
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completing discovery at a later date than Defendants. Defendants’ only explanation for
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how they will be prejudiced is speculation that issues will be raised and discovered by
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Plaintiffs during the period they are completing discovery and Defendants will not be
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able to pursue their own discovery regarding those issues. However, the Motion does not
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identify any issues that have arisen from Plaintiffs’ completion of discovery that
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Defendants need to pursue. Defendants speculate they may be prejudiced if something
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unanticipated arises through Plaintiffs’ completion of discovery and they are unable to
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conduct related discovery, but have not demonstrated any prejudice at this point. The
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It does not appear from the record thus far that the parties pursued any discovery
between February 2016 and July 2016.
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Court is not precluding the possibility that something Defendants’ could not have
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anticipated may arise as Plaintiffs complete certain discovery and warrant an extension to
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complete, but Defendants have not made that showing yet. The request for a blanket
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extension of all fact discovery to April 10, 2017 is denied.
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B.
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As to the request to extend the deadline to file pretrial motions, Defendants argue
Extend of Deadline to File Pretrial Motions
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the deadline should be extended beyond the April 10, 2017 deadline for Plaintiffs to
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complete certain discovery to allow the parties to have a complete factual record before
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filing motions. The Court agrees that the deadline to file pretrial motions is generally
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after the completion of all fact discovery, but as the Court pointed out in its prior order,
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the ideal schedule has been disrupted by the parties’ lack of diligence — apparently
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failing to conduct discovery from February 2016 to June 2016 and their delays in
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completing the discovery that began in July 2016. And again, as the Court noted in its
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January 27, 2017 Order, the parties have made no showing what it is they will be unable
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to complete in advance of the current pretrial deadline that necessitates delaying the rest
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of this case further. The request to extend the deadline to file pretrial motions is denied.
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C.
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As previously explained in the Court’s prior orders, if any party seeks further
Future Motions to Extend Time
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extensions of the time to complete discovery, the request must identify what specific
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discovery the party needs to complete, all efforts to complete that discovery prior to the
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applicable discovery deadline, and an explanation why it could not be completed by the
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deadline. For example, if Defendants identify discovery they need based on an issue that
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arises as a result of the discovery Plaintiffs are completing, Defendants would need to
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identify what the new issue is, why Defendants did not anticipate the issue in their own
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discovery efforts previously, the specific discovery necessitated by the new issue, and
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when it can be completed. Additionally, any request from any party should identify the
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requesting parties’ efforts to complete discovery since the case was scheduled in
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February 2016, or as to Aerostar, when the party entered the case.
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As to the deadline to file pretrial motions, if the parties seek to extend this
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deadline, the parties would need to explain why the deadline cannot be met. For
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example, if Plaintiffs had yet to complete discovery needed to file a pretrial motion,
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Plaintiffs would need to identify all efforts to complete that discovery sufficiently in
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advance of the March 13, 2017 deadline to file pretrial motions. The April 10, 2017
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deadline for completion of certain discovery does not relieve the parties of their
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responsibility to pursue the case diligently to comply with all deadlines, including the
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deadline to file pretrial motions.
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Any requests that fail to comply with the above requirements will be summarily
denied.
III.
Conclusion
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For the reasons stated above, the Motion is DENIED without prejudice.
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IT IS SO ORDERED.
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Dated: February 13, 2017
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