Faith Action For Community Equity et al v. State of Hawaii et al

Filing 249

ORDER AFFIRMING MAGISTRATE JUDGE ORDER DENYING PLAINTIFFS' MOTION TO ALTER THE RULE 16 SCHEDULING ORDER TO ALLOW THE DEPOSITION OF REBECCA GARNDER re 200 , 225 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/5/2015. &q uot;The court affirms Magistrate Judge Puglisi's order of April 14, 2015, denying Faith Action's request to modify the Rule 16 Scheduling Order to allow Faith Action to take the deposition of Rebecca Gardner." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FAITH ACTION FOR COMMUNITY
EQUITY; TOCHIRO KOCHIRO
KOVAC, individually and on
behalf of a class of persons
in the State of Hawaii who,
because of their national
origins, have limited English
proficiency

)
)
)
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII; HAWAII
)
DEPARTMENT OF TRANSPORTATION; )
GLENN OKIMOTO, in his
)
official capacity as the
)
Director of the Hawaii
)
Department of Transport,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00450 SOM/RLP
ORDER AFFIRMING MAGISTRATE
JUDGE ORDER DENYING
PLAINTIFFS’ MOTION TO ALTER
THE RULE 16 SCHEDULING ORDER
TO ALLOW THE DEPOSITION OF
REBECCA GARDNER

ORDER AFFIRMING MAGISTRATE JUDGE ORDER DENYING
PLAINTIFFS’ MOTION TO ALTER THE RULE 16 SCHEDULING ORDER
TO ALLOW THE DEPOSITION OF REBECCA GARDNER
I.

INTRODUCTION.
Plaintiffs Faith Action for Community Equity and

Tochiro Kochiro Kovac (collectively, “Faith Action”) appeal from
Magistrate Judge Richard L. Puglisi’s order of April 14, 2015.
That order denied Faith Action’s motion to modify the Rule 16
Scheduling Order so that Faith Action could depose Rebecca
Gardner after the discovery cut-off.

Because his order is

neither clearly erroneous nor contrary to law, this court affirms
Magistrate Judge Puglisi.

II.

BACKGROUND FACTS.
On September 6, 2013, Faith Action filed the Complaint

in this matter.

See ECF No. 1.

filed on February 11, 2014.

A First Amended Complaint was

See ECF No. 60.

The Rule 16 Scheduling Order of May 16, 2014, set a
trial date of May 19, 2015.

See ECF No. 98 at 2, PageID # 1546.

On December 29, 2014, the court continued the trial date to May
28, 2014.

See ECF No. 130.

The Rule 16 Scheduling Order set a

discovery cut-off of March 20, 2015, and stated, “Unless
otherwise permitted by the Court, all discovery motions and
conferences made or requested pursuant to Federal Rules of Civil
Procedure, Rules 26 through 37 inclusive of LR 26.1, 26.2 37.1
shall be heard no later than thirty (30) days prior to the
discovery deadline.”

See ECF No. 98 at 3, PageID # 1547.

On August 28, 2014, the court ordered that the trial
date could not be continued except through a motion, which the
trial judge indicated was unlikely to be granted.

See ECF No.

118.
According to Defendant State of Hawaii Department of
Transportation, Faith Action conducted no discovery from
September 2014 through January 2015.

See ECF No. 191, PageID

# 2991.
On February 5, 2015, counsel for Faith Action sent
counsel for the State an e-mail, asking for dates that six people

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would be available to be deposed.

The six proposed deponents

included Scott Haneberg and Rebecca Gardner.

See ECF No. 185-3,

PageID # 2874; ECF No. 185-9, PageID # 2900.

The parties then

discussed the possibility that the proposed depositions might not
be completed before the discovery cut-off.

The State sent Faith

Action an e-mail stating, “If we are unable to get all of the
depositions completed by 3/20, we will advise the Court that the
parties need to move the discovery cut off date because of
problems with scheduling.
that.”

I have never had a court refuse to do

ECF No. 185-3, PageID # 2873.

The State clarified later

the same day that “the possibility of moving the discovery
cut-off date would be limited to just accommodating depositions
that were timely requested but could not be completed before the
cut-off date due to the deponent’s scheduling issues.”

Id.,

PageID # 2872 (emphasis added).
On February 18, 2015, Faith Action served notices of
deposition for Scott Haneberg, Rebecca Gardner, and others.
ECF No. 150, PageID # 2521.

See

Faith Action noticed the deposition

of Haneberg for a day he was off-island.
¶ 6, ECF No. 191-1, PageID # 2998.

See Decl. of John Molay

On March 4, 2015, Faith

Action’s counsel sent an e-mail to the State, asking for proposed
dates for a rescheduled Haneberg deposition, given Haneberg’s
unavailability until after the March 20 discovery cut-off.
id.; ECF No. 185-9, PageID # 2888.

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See

The State responded the same

day that the parties could “raise the issue with Judge Puglisi so
he is aware that the deposition could not be completed by 3/20.”
ECF No. 185-9, PageID # 2888.

The parties rescheduled Haneberg’s

deposition for March 27, 2015, executing a stipulation to extend
the discovery cut-off to allow that deposition.

See Molay Depo.

¶¶ 7-8, ECF No. 191-1, PageID # 2999; see also ECF No. 185-11,
PageID # 2904.
On February 26, 2015, a status conference was held in
Ah Chong v. State of Hawaii, Civ. No. 13-00663 LEK/KSC.
No. 185-4, PageID # 2876.

See ECF

Paul Alston, Claire Wong Black, and

Gavin K. Thornton, counsel for Faith Action in this case, are
also counsel for the plaintiff in Ah Chong.
counsel for the State in both cases.

Id.

John Molay is
Paul Alston requested

a settlement conference in Ah Chong on March 19, 2015.
was picked over Molay’s objection.

That date

See Molay Decl. ¶ 10, ECF No.

191-1, PageID # 2999.
Rebecca Gardner’s deposition had been set for March 19,
2015, meaning that the settlement conference in Ah Chong
conflicted with Gardner’s scheduled deposition.

On March 6,

2015, Faith Action's counsel requested that Gardner’s deposition
be rescheduled.

See ECF No. 185-5, PageID # 2878.

Andrew

Salenger, co-counsel for the State, responded that he or Molay
would be “available on the following dates in March: 10, 13, 17,
20, 23, or 24.”

See ECF No. 185-5, PageID # 2877.

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The State

told Faith Action to “check with Frances Lum . . . in terms of
moving the OLA depos,” presumably indicating that the proposed
dates were conditioned on the availability of Ms. Lum, another
State attorney.

Apparently, counsel for Faith Action went ahead

and set Gardner’s deposition for March 23, 2015.
On March 18, 2015, counsel for Faith Action asked the
State whether it would be amenable to adding the rescheduled
Gardner deposition to the stipulation extending the discovery
cut-off that the parties were executing with respect to the
Haneberg deposition.

See ECF No. 185-10, PageID # 2902.

Counsel

for the State responded, “I think a separate stipulation would be
better.”

Id.
On March 19, 2015, Faith Action sent the State a

proposed stipulation to extend the discovery cut-off with respect
to Gardner.

See ECF No. 185-12, PageID # 2906.

The State

responded the same day that it was unwilling to sign the
stipulation because the deposition, set right before the
discovery cut-off, was “unilaterally changed solely for the
convenience of Plaintiffs’ counsel.”

See ECF No. 185-12, PageID

#s 2905-06.
On March 20, 2015, Faith Action requested a discovery
conference with Magistrate Judge Puglisi to discuss Gardner’s
deposition.

See ECF No. 185-13.

Magistrate Judge Puglisi denied

the request for a discovery conference, stating:

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The Rule 16 Scheduling Order in this case
provides that the discovery cut-off is March
20, 2015, and that all discovery motions and
conferences made or requested shall be heard
no later than February 18, 2015. ECF No. 98.
On March 20, 2015, the Court received a
letter requesting a discovery conference
related to a deposition scheduled for March
23, 2015. Because Plaintiffs’ request is
untimely and Plaintiffs have not demonstrated
good cause to extend the applicable deadline,
the Court DENIES Plaintiffs’ request for a
discovery conference.
ECF No. 180.
On March 23, 2015, three days after the discovery cutoff and more than a month after the motion deadline for discovery
disputes, Faith Action filed a motion to amend the Rule 16
Scheduling Order to allow it to take Gardner’s deposition.
ECF No. 185.

See

On April 14, 2015, Magistrate Judge Puglisi denied

that motion, ruling that Faith Action had not shown good cause to
modify the Rule 16 schedule because Faith Action had not been
diligent in conducting discovery or seeking modification of the
discovery deadline.

Magistrate Judge Puglisi also determined

that the State would be prejudiced by having to engage in
discovery right before trial, instead of preparing for trial.
See ECF No. 200.
Faith Action did not file its appeal of Magistrate
Judge Puglisi’s order regarding Gardner’s deposition until the
appeal deadline.

See ECF No. 225.

As of the filing of the

appeal, trial was only one month away.

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III.

STANDARD.
Under Local Rule 74.1 and 28 U.S.C. § 636(b)(1)(A), a

district judge may set aside a magistrate judge’s nondispositive
order if it is “clearly erroneous or contrary to law.”

See Bhan

v. NME Hosp., Inc., 929 F.2d 1404, 1414-15 (9th Cir. 1991).
threshold of the “clearly erroneous” test is high.

The

“A finding is

‘clearly erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);
Burdick v. Comm’r Internal Revenue Serv., 979 F.2d 1369, 1370
(9th Cir. 1992) (“A finding of fact is clearly erroneous if we
have a definite and firm conviction that a mistake has been
committed.”).
IV.

ANALYSIS.
When a district court files a pretrial scheduling order

pursuant to Rule 16 of the Federal Rules of Civil Procedure,
amendment of that order is governed by the “good cause” standard
set forth in Rule 16.

Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 608 (9th Cir. 1992); Fed. R. Civ. P. 16(b)(4) (“A
schedule may be modified only for good cause and with the judge’s
consent.”).

Rule 16(b)’s “good cause” standard primarily

considers the diligence of the party seeking the amendment.
Johnson, 975 F.2d at 609.

In other words, this court may modify

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the pretrial schedule “if it cannot reasonably be met despite the
diligence of the party seeking the extension.”

Id.

Carelessness

is not compatible with a finding of diligence and offers no
reason for a grant of relief.

Id.

Although the existence or

degree of prejudice to the party opposing the modification might
supply an additional reason to deny a motion to modify a
scheduling order, the focus of the inquiry is on the moving
party’s reasons for seeking modification.
was not diligent, the inquiry should end.”

Id.
Id.

“If that party
Accord In re W.

States Wholesale Nat’l Gas Antitrust Litigation, 715 F.3d 716,
737 (9th Cir. 2013).
Faith Action fails to demonstrate that Magistrate Judge
Puglisi clearly erred in determining that good cause was lacking
to support the requested modification of the Rule 16 Scheduling
Order.

The record includes support for Magistrate Judge

Puglisi’s determination that Faith Action did not diligently seek
discovery or a modification of the discovery deadline.
Faith Action has known for almost a year that the trial
would be in May 2015.

It also knew from May 2014 that the

discovery cut-off was March 20, 2015, and that any motion related
to discovery had to be “heard no later than thirty (30) days
prior to the discovery deadline.”

See ECF No. 98.

Faith Action

has known since August 2014 that the trial date could not be
continued except through a motion.

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See ECF No. 118.

Yet, Faith

Action did not attempt to take discovery from August 2014 until
February 2015.

Faith Action noticed the deposition of Rebecca

Gardner one day before the discovery cut-off, then rescheduled
the deposition to March 23, 2015, to allow its counsel to attend
a settlement conference in another case.

Although the State

agreed to move the discovery cut-off when deponents were
unavailable, the State did not agree to move Gardner’s deposition
based on attorneys’ schedules.
This court recognizes that some e-mails sent by the
State may have misled Faith Action into thinking that the State
was willing to agree to a late Gardner deposition even if the
delay was not attributable to Gardner’s schedule.

For example,

one e-mail told Faith Action that moving Gardner’s deposition
should be the subject of a separate stipulation.

The State also

listed possible deposition dates that fell after the cut-off.
However, the State did not actually agree to extend the discovery
cut-off.

Moreover, these particular e-mails from the State were

sent in March 2015, meaning that, even had they not been sent,
Faith Action would have missed the Scheduling Order’s deadline of
one month before the March 20 discovery cut-off for getting a
discovery motion heard.

Faith Action has not explained why it

waited more than a month after the cut-off for discovery-related
motions to seek a modification of the cut-off.

Under these

circumstances, the court identifies no clear error in Magistrate

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Judge Puglisi’s ruling that Faith Action lacked good cause to
amend the Rule 16 Scheduling Order.

The court affirms his order

of April 14, 2015.
V.

CONCLUSION.
The court affirms Magistrate Judge Puglisi’s order of

April 14, 2015, denying Faith Action’s request to modify the Rule
16 Scheduling Order to allow Faith Action to take the deposition
of Rebecca Gardner.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 5, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Faith Action For Community Equity, et al. v. State of Hawaii; Hawaii
Department of Transportation; Glenn Okimoto, in his official capacity; Civ.
No. 13-00450 SOM/RLP; ORDER AFFIRMING MAGISTRATE JUDGE ORDER DENYING
PLAINTIFFS' MOTION TO ALTER THE RULE 16 SCHEDULING ORDER TO ALLOW THE
DEPOSITION OF REBECCA GARDNER

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