AmeriPOD, LLC v. davisREED Construction, Inc. et al

Filing 44

ORDER granting in part and denying in part 39 Motion to Amend/Correct. Signed by Magistrate Judge William V. Gallo on 09/26/2018. (ja1)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMERIPOD, LLC,

Case No.: 17-CV-747-H-WVG

Plaintiff/Counter-Defendant,

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO CONTINUE
DISCOVERY

v.
DAVISREED CONSTRUCTION, INC.,

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Defendant/Counter-Claimant.

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On September 14, 2018, the parties jointly alerted the Court to a pending discovery

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dispute regarding Plaintiff/Counter-Defendant Ameripod wanting to designate an

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additional expert witness. For the reasons that follow, the Court GRANTS IN PART and

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DENIES IN PART Ameripod’s request.

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I. RELEVANT BACKGROUND

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On January 19, 2018, the Court entered a Scheduling Order setting fact discovery to

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conclude on May 25, 2018, ordered expert witness designation be completed on or before

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June 8, 2018, ordered rebuttal expert witness designation be completed on or before June

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22, 2018, and expert discovery to conclude on August 31, 2018. (See ECF No. 28 at ¶¶ 2-

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4, 6.) On May 17, 2018, the parties jointly moved the Court for an order continuing the fact

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discovery deadline as well as the Mandatory Settlement Conference (“MSC”). (ECF No.

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31.) The Court granted the request to continue the MSC but denied the request to continue
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fact discovery because the parties did not provide the good cause necessary. (ECF No. 32.)

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On July 16, 2018, the parties jointly moved to continue the remaining expert discovery

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deadlines, the MSC, and pretrial motion deadline in order to pursue private mediation.

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(ECF No. 33.) Finding good cause, the Court granted the parties’ request and ordered

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expert reports be exchanged on or before September 18, 2018, rebuttal expert reports

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exchanged on or before October 2, 2018, and the conclusion of expert discovery on October

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30, 2018. (ECF No. 34 at ¶¶ 1-3.)

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On September 14, 2018, the parties alerted the Court to the present discovery

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dispute. The Court ordered the parties to submit briefing on the matter, which the parties

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timely completed. On September 19, 2018, the Court convened a telephonic discovery

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conference with the parties.

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II. LEGAL STANDARD

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Pursuant to Federal Rule of Civil Procedure (“Rule”) 16(b)(3), a district court is

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required to enter a pretrial scheduling order that “must limit the time to join other parties,

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amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A).

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The scheduling order “controls the course of the action unless the court modifies it [ ]” and

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Rule “16 is to be taken seriously.” Fed. R. Civ. P. 16(d); Janicki Logging Co. v. Mateer,

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42 F.3d 561, 566 (9th Cir. 1994). Indeed, parties must “diligently attempt to adhere to [the

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Court’s] schedule throughout the subsequent course of the litigation.” Jackson v. Laureate,

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Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). “A scheduling order ‘is not a frivolous piece

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of paper, idly entered, which can be cavalierly disregarded without peril.’” Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (quoting Gestetner Corp.

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v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)).

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Rule 16(b)(4) “provides that a district court’s scheduling order may be modified

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upon a showing of ‘good cause,’ an inquiry which focuses on the reasonable diligence of

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the moving party.” Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 (9th Cir. 2007); citing

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Johnson, 975 F.2d at 609. In Johnson, the Ninth Circuit explained,

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…Rule 16(b)’s “good cause” standard primarily concerns the diligence of
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the party seeking the amendment. The district court may modify the pretrial

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schedule “if it cannot reasonably be met despite the diligence of the party

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seeking the extension.” Fed. R. Civ. P. 16 advisory committee’s notes (1983

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amendment)…[T]he focus of the inquiry is upon the moving party’s reasons

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for seeking modification…If that party was not diligent, the inquiry should

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end.

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Johnson, 975 F.2d at 609.

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In part, the “good cause” standard requires the parties to demonstrate that

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“noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her

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diligent efforts to comply, because of the development of matters which could not have

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been reasonably foreseen or anticipated at the time of the Rule 16 Scheduling

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conference…” Jackson, 186 F.R.D. at 608.

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The parties may stipulate to various procedures concerning discovery, however “a

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stipulation extending the time for any form of discovery must have court approval if it

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would interfere with the time set for completing discovery, for a hearing motion, or for

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trial.” Fed. R. Civ. P. 29(b).

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III. DISCUSSION

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Ameripod seeks leave to designate an additional expert witness and to depose six

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additional percipient witnesses notwithstanding the fact that fact discovery and expert

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designation were to be completed over three months ago. Ameripod argues this is necessary

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because it has added new counsel, Kevin McConville of Wayne Thomas & Associates, in

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addition to its current counsel. (Mot., ECF No. 39 at 2:15-28.)

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Davisreed argues good cause does not exist to add expert witnesses because the

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expert witness designation deadline has passed and the parties agreed to conduct only four

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additional percipient witness depositions after the close of discovery. (Opp’n, ECF No. 40

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at 3:24-4:2; 7:8.)

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Both parties have overstepped the boundaries of appropriate conduct in this matter.

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Deadlines mean something and the Court expects the parties in this case, and all cases, to
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abide by the deadlines set forth in scheduling orders. The recent addition of new counsel,

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not substituted counsel, for Ameripod does not excuse Ameripod’s failure to designate a

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plumbing and pod installation expert in a timely fashion nor justify allowing it to do so

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well after the expiration of the designation deadline. Moreover, by disregarding the fact

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discovery deadline and stipulating to depose witnesses months after fact discovery closed,

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the parties have blatantly disregarded an order of this Court and violated Rule 29(b) all

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while knowing the Court had explicitly denied their request to extend fact discovery. The

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Court would be well within its discretion to not only deny the present motion but to impose

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sanctions.

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Notwithstanding the above, the Court, in its discretion, will allow very limited and

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targeted discovery to ameliorate any prejudice either of the party may suffer as a result of

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their collective misgivings. Cases should be decided on the merits and not based on the

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failures of counsel.

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CONCLUSION AND COMPLIANCE MONITORING
For the foregoing reasons, Ameripod’s motion is GRANTED IN PART AND
DENIED IN PART. Accordingly, the parties are ORDERED as follows:

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(1) Ameripod may designate an additional expert on or before September 19, 2018;

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(2) Davisreed may designate an expert in rebuttal;

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(3) The reports for both newly designated experts shall be exchanged on or before

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October 2, 2018;

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(4) Davisreed may select one additional percipient witness to depose. The deposition

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must be completed no later than October 10, 2018;

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(5) Ameripod may select two additional percipient witnesses to depose. The

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depositions must be completed no later than October 10, 2018;

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(6) No additional fact discovery may be conducted;

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(7) Expert discovery shall be completed on or before October 30, 2018, as

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previously scheduled.

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For the purposes of monitoring the parties’ compliance with this Order, IT IS
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FURTHER ORDERED that:

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(1) Ameripod shall lodge the contact information for its designated expert witness

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on or before September 19, 20181;

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(2) Service of reports must be lodged with the Court on the same date on which the

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reports are served;

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(3) The parties shall lodge with the Court the names of each percipient witness

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designated by the parties once they are determined;

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(4) The parties shall jointly notify via a lodgment that a deposition has been

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completed at the conclusion of each deposition.

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The parties are further admonished that no additional fact discovery may be

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conducted outside of the discovery outlined above. The Court will not entertain any

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discovery disputes or any requests to continue deadlines. No follow-up discovery may

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occur as a result of information gleaned from the allowed depositions.

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IT IS SO ORDERED.
Dated: September 26, 2018

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Ameripod timely lodged its notice designating its expert witness.
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