Ellis v. Kaiser Permanente et al

Filing 83

ORDER Granting In Part and In Part Denying 71 Plaintiff's Ex Parte Motion to Re-Open Discovery. Signed by Magistrate Judge Karen S. Crawford on 10/4/2017. (All non-registered users served via U.S. Mail Service)(lrf)

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1 ...... l i ..-- '" :- l L .. t:_ LJ 2 17 OCT -4 PM 12: 20 3 X. n:.1:;11 4 DISTRICT CC'_!nT i·iiCT Ut C,\LirG7.~iL' 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHA'LENA ELLIS, 12 Case No.: 16cv195-LAB(KSC) ORDER GRANTING IN PART AND IN PART DENYING PLAINTIFF'S EX PARTE MOTION TO RE-OPEN DISCOVERY [Doc. No. 71.] Plaintiff, 13 v. 14 KAISER PERMANENTE, et al., 15 Defendants. 16 17 Plaintiff is pursuing the operative First Amended Complaint pro se and in forma 18 19 pauperis. 1 [Doc. Nos. 6, 29.] Before the Court is plaintiff's Ex Parte Motion to Re- 20 Open Discovery to Take the Declaration of Vicky Cornejo to Preserve Her Testimony to 21 Use at Trial and to Serve New Subpoena(s). [Doc. No. 71.] Defendants' have filed an 22 Opposition to Plaintiff's Motion to Re-Open Discovery. [Doc. No. 72.] For the reasons 23 outlined more fully below, the Court finds that plaintiff's Ex Parte Motion to Re-Open 24 Discovery must be GRANTED in part and DENIED in part. 25 26 27 28 1 District Courts are obligated to afford a certain amount of leeway to pro se litigants and to construe their pleadings liberally. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). I 16cv195-LAB(KSC) 1 2 Background Plaintiff's First Amended Complaint alleges that she was employed by defendant 3 Kaiser Permanente as a medical assistant from October 11, 2004 through March 12, 4 2015. [Do. No. 3, at p. 3.] Defendants have indicated that plaintiff erroneously sued 5 Kaiser Permanente and that she was actually employed by Southern California 6 Permanente Medical Group (SCPMG). [Doc. No. 21, at p. 2; Doc. No. 72, at p. 2.] The 7 First Amended Complaint includes causes of action for racial discrimination, wrongful 8 termination, retaliation, and violations of the ADA. [Doc. No. 3, at p. 2.] In an Order 9 filed on June 2, 2017, the District Court dismissed plaintiff's claims brought under 10 Section 1983, because plaintiff worked for a private employer so defendants were not 11 engaged in state action or acting "under color of state law." [Doc. No. 69, at p. 2.] As a 12 result of the District Court's Order, plaintiff's remaining claims are those alleged in the 13 fourth through tenth causes of action under Section 1981, Title VII, and the Americans 14 with Disabilities Act (ADA) for racial and other discrimination, wrongful termination, 15 retaliation, and ADA violations. [Doc. No. 69, at p. 2.] 16 On October 31, 2016, this Court entered a Scheduling Order setting February 28, 17 2016 as the deadline for completing fact discovery. Expert discovery was scheduled to 18 be completed as of June 23, 2017. Dispositive motions were to be filed no later than 19 August 7, 2017. [Doc. No. 63, at pp. 1-3.] 20 On February 15, 2017, after the time for completing fact discovery had expired, the 21 parties filed a Joint Motion to Extend the Fact Discovery Cutoff. [Doc. No. 67 .] In the 22 Joint Motion, defendants sought additional time to complete plaintiff's deposition. 23 Defendants had been unable to complete the deposition because of plaintiff's work 24 schedule. [Doc. No. 67, at pp. 1-3.] The Court granted defendants' request and 25 extended the discovery deadline until April 30, 2017, so that the parties could complete 26 plaintiff's deposition. [Doc. No. 68.] 27 On August 7, 2017, defendants filed their Motion for Summary Judgment in 28 accordance with the deadline set forth in the Scheduling Order, and this Motion is 2 16cv195-LAB(KSC) 1 currently pending before the District Court. [Doc. No. 72; Doc. No. 63, at p. 3.] On the 2 same day, plaintiff filed the instant Ex Parte Motion to Re-Open Discovery. [Doc. No. 3 71.] In her Ex Parte Motion, plaintiff seeks to re-open discovery so she can obtain "new 4 testimony" and "new evidence" from defendants that she has "now" discovered "through 5 due diligence" and that she believes will "corroborate" her claims against defendants. 6 [Doc. No. 71, at p. l.] 7 8 Discussion A. 9 Relevance Standard. Federal Rule of Civil Procedure 26 provides as follows: "Parties may obtain 10 discovery regarding any non-privileged matter that is relevant to any party's claim or 11 defense and proportional to the needs of the case, considering the importance of the 12 issues at stake in the action, the amount in controversy, the parties' relative access to 13 relevant information, the parties' resources, the importance of the discovery in resolving 14 the issues, and whether the burden or expense of the proposed discovery outweighs its 15 likely benefit. Information within this scope of discovery need not be admissible in 16 evidence to be discoverable." Fed.R.Civ.P. 26(b)(l). 17 B. Request for Documents. 18 In her Ex Parte Motion to Re-Open Discovery, plaintiff explains that she was 19 "written up for allegedly adminis[tering] a vaccine to a patient using the wrong 20 technique that ultimately led the patient to be hospitalized." [Doc. No. 71, at p. 3.] By 21 contrast, the First Amended Complaint alleges that a patient "had an allergic reaction" to 22 a vaccination, that defendants "failed to do a proper investigation," and that defendants 23 wrongly concluded on or about April 10, 2014 that plaintiff was at fault. [Doc. No. 3, at 24 p. 12.] 25 The Court notes that Declarations submitted by defendants in support of their 26 pending Motion for Summary Judgment state that in early April 2014 a patient was 27 "given a vaccination shot incorrectly in her shoulder" and was then hospitalized for five 28 days. [Doc. No. 72-3, at p. 2.] These Declarations further indicate that an investigation 3 16cvl95-LAB(KSC) 1 commenced and it was determined that plaintiff administered the vaccine. [Doc. No. 72- 2 3, at pp. 2-3.] According to the declarants, this vaccination incident was one of a 3 number of disciplinary offenses that led to the termination of plaintiff's employment. 4 [Doc. No. 72-3, at p. 2-6; Doc. No. 72-4, at pp. 2-5; Doc. No. 72-5, at pp. 2-8.] 5 In her Ex Parte Motion, plaintiff claims that "[i]t has now come to light that a 6 second patient during the same time frame also had an allergic reaction to the same 7 batch of vaccine who[] was also ultimately hospitalized." [Doc. No. 71, at p. 3.] 8 However, plaintiff believes that the employee who administered this second vaccine 9 "was not written up" and the "vaccine overseers" were notified that "they might have a 10 bad batch" of vaccine. [Doc. No. 71, at p. 3.] Plaintiff indicates that she learned of this 11 "new evidence" in documents released by defendants and argues that "documents must 12 now be subpoenaed." [Doc. No. 71, at p. 1.] 13 The Court construes this portion of plaintiff's Ex Parte Motion as a request to re- 14 open discovery so that she can serve defendants with a request for production of 15 documents related to this second alleged vaccination incident that defendants have not 16 yet produced. From plaintiff's moving papers, it is unclear whether plaintiff requested 17 any such documentary evidence from defendants prior to the February 28, 2017 deadline 18 for completing fact discovery. [Doc. No. 63, at p. 1.] If any such documentary evidence 19 does exist, it would be relevant to plaintiff's theory of the case. Plaintiff contends that 20 she was not at fault in the vaccination incident, but defendants erroneously concluded 21 she was at fault because they did not complete a "proper investigation." [Doc. No. 3, at 22 p. 12.] 23 24 C. Request for a Declaration or Deposition of Vicky Corneio. Plaintiff also claims in her Ex Parte Motion to Re-Open Discovery that "through 25 due diligence," she has learned that "new testimony has now appeared from one 26 Ms. Vicky Cornejo ... [which] corroborates [her] causes of action against defendants." 27 [Doc. No. 71, at p. 1.] According to plaintiff, Ms. Vicky Cornejo "will provide 28 testimony" stating that defendant Patricia Dodgen-Bower "has been written up by 4 16cv195-LAB(KSC) 1 Ms. Vicky Cornejo as well as other [SCPMG] employees under [Ms. Dodgen-Bower's] 2 supervision." [Doc. No. 71, at p. 3.] Defendant's Opposition to plaintiffs Ex Parte 3 Motion clarifies that Ms. Dodgen-Bower "is or was Ms. Cornejo's supervisor." [Doc. 4 No. 73, at p. 4.] Plaintiff also states in her Ex Parte Motion that she previously 5 requested access to Ms. Dodgen-Bower's employment file but was told by defense 6 counsel during a "meet and confer" that there are no "write ups" or complaints filed 7 against Ms. Dodgen-Bower. [Doc. No. 71, at p. 3.] However, the relief sought by 8 plaintiff in her Ex Parte Motion is somewhat unclear, as she sometimes indicates she 9 wants a "declaration" by Ms. Cornejo and at other times she states that she seeks a 10 "deposition" of Ms. Cornejo. [Doc. No. 71, at pp. 1, 3, 4.] 11 The Court notes that defendants submitted the Declaration of Ms. Dodgen-Bower 12 in connection with their pending Motion for Summary Judgment, or in the Alternative, 13 Partial Summary Judgment [Doc. No. 72]. Ms. Dodgen-Bower's Declaration states that 14 she supervised plaintiff from March 2012 to January 2015. [Doc. No. 72-3, at p. 2.] As 15 part of her supervisory duties, Ms. Dodgen-Bower explains in her Declaration that she 16 investigated the vaccination incident by interviewing plaintiff and calling the patient 17 who received the vaccination. [Doc. No. 72-3, at pp. 2-3.] Based on her investigation, 18 Ms. Dodgen-Bower concluded plaintiff improperly administered the vaccine to the 19 patient and therefore placed plaintiff on "a Level 3 Corrective Action for Performance." 20 [Doc. No. 72-3, at p. 2.] Mr. Dodgen-Bower's Declaration also includes details about 21 other "incidents" involving plaintiff that occurred after the vaccination incident that led 22 to further disciplinary actions against plaintiff. [Doc. No. 72-3, at pp. 2-4.] 23 Although it is true, as defendants contend, that plaintiff does not specifically 24 explain why she believes "new testimony" from Ms. Cornejo will "corroborate" her 25 claims against defendants [Doc. No. 71, at pp. 1, 3; Doc. No. 73, at p. 4], the Court must 26 liberally construe plaintiffs Ex Parte Motion because she is proceeding prose. 27 Construed liberally, it is apparent that plaintiff seeks access to documents and/or 28 information that does satisfy the relevance standard in Federal Rule 26(b)(l), because 5 16evl Q,.T.A RIK~(') 1 there is a factual dispute about the vaccination incident, and, as a result, Ms. Dodgen- 2 Bower's credibility is at issue. In addition, plaintiff's request is specific enough that the 3 Court has no reason to believe it would be too burdensome for defendants to provide 4 plaintiff with documents or information indicating whether Ms. Cornejo made any 5 relevant claims or complaints against Ms. Dodgen-Bower. 6 Under the circumstances presented, the Court rejects defendant's contention that 7 plaintiff's request is "too late." [Doc. No. 73, at p. 5.] Defendant's Opposition to 8 plaintiff's Ex Parte Motion confirms that plaintiff did request access to Ms. Dodgen- 9 Bower's personnel records in a subpoena directed to defendant on April 27, 2017, two 10 months after the deadline for completing discovery and three days before the expiration 11 of the extension of the discovery cutoff, which was granted to complete plaintiff's 12 deposition. [Doc. No. 73, at p. 3.] Defendants objected to the subpoena on a number of 13 grounds, including timeliness, and did not provide plaintiff with a substantive response. 14 However, defense counsel did tell plaintiff during the meet and confer process that "he 15 was unaware of any complaints lodged against Ms. Dodgen-Bower." [Doc. No. 73, at 16 p. 3, citing Doc. No. 73-1, at p. 2 (emphasis added).] Thus, it appears that plaintiff may 17 have been dissuaded from pursuing this discovery earlier based on counsel's equivocal 18 representation. It appears likely, however, that plaintiff would have been granted 19 additional time to pursue this discovery if she requested it after she met and conferred 20 with defense counsel. Under the circumstances, the Court is reluctant to conclude that 21 this pro se plaintiff's pursuit of information about any claims Ms. Cornejo may have 22 made against Ms. Dodgen-Bower is "too late," particularly when plaintiff claims she 23 discovered this "new testimony" by Ms. Cornejo "through due diligence" [Doc. No. 73, 24 at p. 5], and defendants do not dispute these assertions in their Opposition [Doc. No. 73, 25 atpp.2-10]. 26 D. 27 Federal Rule 16(b)(4) states that: "A schedule may be modified only for good 28 Good Cause. cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). Good cause for an 6 16cvl95-LAB(KSC) 1 extension exists when the moving party requests additional time and demonstrates he 2 cannot meet the deadline despite exercising due diligence. Fed.R.Civ.P. 6(b ); Johnson v. 3 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). "If that party was not 4 diligent, the inquiry should end." Id. 5 Defendants argue that plaintiffs request for additional discovery is untimely, and 6 she has not shown good cause to re-open discovery. They also challenge plaintiffs Ex 7 Parte Motion to Re-Open Discovery on other grounds, including relevance, privacy, and 8 speculation. However, defendants do not challenge plaintiffs assertions that she is 9 seeking additional time for discovery, because she learned of"new evidence" and/or 10 "new testimony" through "due diligence" and in documents "supplied by the defendants 11 themselves." [Doc. No. 71, at p. 2.] Construing plaintiffs Ex Parte Motion liberally, as 12 the Court is obligated to do when the plaintiff is proceeding in pro se, it appears there is 13 good cause to briefly re-open discovery to allow plaintiff to discover the following: 14 (1) any documents concerning a claim made by Ms. Cornejo against Ms. Dodgen-Bower 15 during the relevant time period; and (2) any documents concerning a second vaccination 16 incident during the relevant time period. However, to the extent plaintiff seeks to re- 17 open discovery to take a Rule 30 or Rule 45 deposition of Ms. Cornejo, the Court finds 18 that plaintiff has not provided enough information to establish there is good cause to re- 19 open discovery long enough to take Ms. Cornejo's deposition at this late date in the 20 proceedings. 21 Conclusion 22 Based on the foregoing, IT IS HEREBY ORDERED that plaintiffs Motion to Re- 23 Open Discovery is GRANTED in part and DENIED in part. In this regard, IT IS 24 FURTHER ORDERED that: 25 1. No later than October 18, 2017, SCPMG shall complete a reasonably 26 diligent search and produce to plaintiff all documents kept in the regular course of 27 business concerning any incidents from 2014 through the present involving vaccinations 28 administered by any employee ofSCPMG at the facility where plaintiff was employed 7 16r.v1 <Vi-I .A RIKSrl 1 that resulted in an adverse reaction to the patient but no disciplinary action against the 2 employee that administered the vaccination. To the extent any such documents include 3 the names of individuals other than an employee or former employee of SCPMG, the 4 names may be redacted from the documents to protect the privacy interests of third 5 parties. If no such documents are located, defendants shall provide plaintiff with a 6 declaration by a competent witness under penalty of perjury no later than October 18, 7 2017 stating that a reasonably diligent search was completed but no such documents 8 were found. 9 2. No later than October 18, 2017, SCPMG and/or Patricia Dodgen-Bower 10 shall complete a reasonably diligent search and produce to plaintiff all documents kept 11 in the regular course of business concerning any claims or complaints made against 12 Ms. Dodgen-Bower by another employee, including but not limited to, Ms. Vicky 13 Cornejo, from 2014 through the present. To the extent any such documents include the 14 names of individuals other than Ms. Dodgen-Bower and Ms. Cornejo, the names may be 15 redacted from the documents to protect the privacy interests of third parties. Ifno such 16 claims or complaints are located, defendants shall provide plaintiff with a declaration by 17 a competent witness under penalty of perjury no later than October 18, 2017 stating that 18 a reasonably diligent search was completed but no such documents were found. 19 3. Plaintiff's Ex Parte Motion is DENIED to the extent it seeks to re-open 20 discovery to conduct a deposition of Vicky Cornejo pursuant to Federal Rules of Civil 21 Procedure 30 or 45 or to obtain a declaration from Ms. Cornejo. 22 Ill 23 Ill 24 Ill 25 III 26 Ill 27 Ill 28 III 8 16cv1 Q'i-1 A RIK~f') 1 4. The time for completing fact discovery is re-opened until October 18, 2017 2 for the sole purpose of allowing defendants time to provide plaintiff with the documents 3 and information set forth above. Discovery remains closed for all other purposes. 4 5 IT SO ORDERED. Dated: October 4, 2017 6 7 Hon. United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 llicvlQ'i-1 .AR!KSC)

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