Pivoriunas v. BMW of North America, LLC et al

Filing 39

Order on Defendant's Ex Parte Application Seeking To Extend Fact Discovery Cut-Off re 36 . The Court denies Defendants ex parte application in its entirety. Signed by Magistrate Judge William V. Gallo on 06/14/2019. (mme)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 18-CV-1159-W-WVG

BRETT PIVORIUNAS,
Plaintiff,

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v.

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BMW OF NORTH AMERICA, LLC,
Defendant.

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ORDER ON DEFENDANT’S EX
PARTE APPLICATION SEEKING
TO EXTEND FACT DISCOVERY
CUT-OFF

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On June 14, 2019, Plaintiff Brett Pivoriunas (“Plaintiff”) and Defendant BMW of

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North America, LLC (“Defendant”) telephonically appeared before this Court regarding

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Defendant’s ex parte application seeking to extend the fact discovery cut-off in this matter.

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As detailed during the hourlong conference and summarized below, the Court denies

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Defendant’s ex parte application in its entirety.

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At all times, Defendant was obligated to diligently engage in discovery to ensure its

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compliance with the operative scheduling order. Fed. R. Civ. Proc. 16(b)(4) (“a schedule

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may be modified only for good cause and with the judge’s consent”); Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“Rule 16(b)’s ‘good cause’ standard

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primarily considers the diligence of the party seeking the amendment”). It follows that

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Defendant needed to timely identify proper deponents and provide reasonable notice of its

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intent to depose Plaintiff.
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18-CV-1159-W-WVG

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As a threshold matter, Defendant’s admission that it could have noticed Plaintiff’s

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deposition earlier belies its proffered argument that it diligently sought discovery.

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Defendant failed to comply with foundational discovery principles by unilaterally noticing

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Plaintiff’s deposition on the eve of the fact discovery cut-off despite knowing that

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Plaintiff’s counsel was unavailable that very day. The law makes clear that carelessness is

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incompatible with a finding of diligence and offers no reason for a grant of relief. Zivkovic

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v. S. Cal. Edison Co., 302 F.3d 1080, 1087–88 (9th Cir. 2002) (finding that a party moving

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to modify the pretrial scheduling order to extend discovery was not diligent and thus failed

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to demonstrate good cause in part because the party did not seek to modify the scheduling

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order until four months after it was issued); Matrix Motor Co. v. Toyota Jidosha Kabushiki

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Kaisha, 218 F.R.D. 667, 671 (C.D. Cal. 2003) (denying motion to reopen discovery and

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modify scheduling order because plaintiff failed to show diligence).

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The Court’s inquiry ends upon its finding that Defendant was not diligent. Johnson,

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975 F.2d at 609 (“Although the existence or degree of prejudice to the party opposing the

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modification might supply 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”); Zivkovic, 320 F.3d at 1087.

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Accordingly, the Court denies Defendant’s ex parte application in its entirety.

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IT IS SO ORDERED.
Dated: June 14, 2019

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18-CV-1159-W-WVG