Spencer v. AT&T Corp.,

Filing 66

ORDER that 53 Plaintiff's Motion for Entry of an Amended Scheduling Order is GRANTED to a limited extent as enumerated in this order. Any request for relief not specifically addressed in this order is DENIED. Signed by Magistrate Judge Peggy A. Leen on 2/9/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KIRBY SPENCER,

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Case No. 2:14-cv-01136-APG-PAL
Plaintiff,

ORDER

v.
(Mot Amd Sched Ord – Dkt. #53)
AT&T DIGITAL LIFE, INC,
Defendant.

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Before the court is Plaintiff’s Motion for Entry of an Amended Scheduling Order and

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Incorporated Memorandum of Points and Authorities (Dkt. #53). The court has considered the

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motion, AT&T Digital Life, Inc.’s Opposition (Dkt. #56), and Plaintiff’s Reply (Dkt. #59).

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BACKGROUND

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The Complaint (Dkt. #1) in this case was filed July 10, 2014. It asserts claims for alleged

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violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. The

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court entered a Discovery Plan and Scheduling Order (Dkt. #21) November 14, 2014,

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establishing an April 22, 2015 discovery cutoff, with dispositive motions due May 22, 2015.

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Before the discovery cutoff ran, Plaintiff timely filed a motion to amend the complaint

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(Dkt. #26) to add class allegations on January 22, 2015. The district judge granted the motion

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for leave to amend the on September 1, 2015. See Order (Dkt. #48). The amended complaint

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was filed September 1, 2015, and on September 29, 2015, Defendant filed its Answer (Dkt. #52)

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to Plaintiff’s first amended class action complaint. In a minute order entered September 3, 2015

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the district judge also denied Defendant’s motion for summary judgment without prejudice in

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light of the amended complaint to be filed, and denied Plaintiff’s motion to stay and motion to

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file surreply as moot. See Minutes, (Dkt. #50).

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Months after the district judge granted Plaintiff’s motion for leave to assert a first

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amended class action complaint, Plaintiff filed this motion seeking “an amended scheduling

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order” to allow Plaintiff to conduct discovery on the newly added class claims, reset a date for

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dispositive motions, and deadline for filing a motion to certify a class. The motion also requests

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an “extension” of the deadlines to designate experts and rebuttal disclosures, a May 20, 2016

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discovery cutoff, and June 14, 2016 deadline to file a motion for class certification. Plaintiff

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proposes that a dispositive motion deadline be set 60 days after the court rules on a motion for

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class certification. Alternatively, if Plaintiff decides not to designate an expert, Plaintiff requests

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that an April 1, 2016 discovery cutoff be set with an April 29, 2016 deadline for a class

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certification motion.

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At the time this motion was filed, Plaintiff understood that Defendant may be filing a

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second motion for summary judgment. Plaintiff argues that he is entitled to conduct discovery

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regarding the class allegations and asks that discovery be taken contemporaneously with briefing

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on any motion the Defendant files.

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AT&T opposes the motion on various grounds.

First, ATT&T argues the court

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previously advised counsel that any requests for an extension of the discovery plan and

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scheduling order deadlines would be scrutinized for a strong showing of good cause and due

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diligence, Plaintiff has shown neither. Second, when Plaintiff moved for leave to amend the

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complaint to add class allegations, he did not ask that the discovery deadlines be altered. In fact,

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the motion for leave to amen argued that Spencer sought to amend the complaint because of

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discovery already conducted he believed was relevant to class certification. At the time the

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motion to amend was granted, three months remained to complete discovery.

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Third, AT&T opposes the motion to amend arguing Plaintiff cannot meet his burden of

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making a strong showing of good cause and excusable neglect for his failure to complete the

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additional discovery he now seeks or for his failure to move to reopen discovery. Spencer did

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not comply with LR 26-4. When he moved for leave to amend, he argued to the court that

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amendment would require only a few additional discovery requests concerning class certification

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and no additional expert discovery. Additionally, his motion does not explain why he waited
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until November 24, 2015, to file the motion, months after the deadline for filing a motion for the

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extension of the discovery plan and scheduling order deadlines, and three months after the court

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granted him leave to amend.

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Finally, AT&T asks that if the court is inclined to grant Plaintiff any relief to the

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discovery plan and scheduling order deadlines, that relief be limited to mitigate the resulting

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prejudice and costs to the Defendant.

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additional discovery needed by the amendment would be minimal and no expert discovery would

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be required, he should be held to his word. Plaintiff deposed AT&T’s witnesses in Atlanta and

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Dallas, and no further depositions are necessary or warranted for class certification purposes.

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AT&T notes that the motion does not claim any depositions are required. Additionally, there is

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no reason to set a new deadline for dispositive motions because AT&T timely complied with the

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dispositive motion deadline and should not be forced to refile a motion for summary judgment

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for the third time.

Because Plaintiff previously represented that any

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Plaintiff replies that Defendant’s opposition is both voluminous and creative, but does not

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dispute that the case was an individual action until leave to amend the complaint to add a class

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action was granted almost five months after discovery closed. Filing an amended complaint

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often means that new facts and legal claims are brought that require additional discovery to fully

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develop. It is well established that briefing on a dispositive motion should not prevent discovery

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from going forward. Plaintiff seeks an amended discovery plan and scheduling order and that

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discovery proceed while the motion for summary judgment is under submission to avoid

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litigating this case “piece by piece”. There is good cause to enter a new discovery plan because

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Plaintiff could not undertake class discovery before the existing discovery cutoff. Plaintiff

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disputes that he was dilatory in moving for entry of an amended scheduling order. He filed this

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motion a little over two months after the amended complaint was filed on September 15, 2015.

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Plaintiff disputes that he has had an opportunity to obtain class discovery. He points out

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that there is a significant difference between evidence that can, in good faith, support class

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allegations to file a class action complaint, and actual evidence obtained from Defendant

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sufficient to certify a class action. There are over 140,000 Digital Life Subscribers in the
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putative class. Plaintiff served requests for production on Defendant seeking a list of all cellular

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telephone numbers registered and/or subscribed to the service that sends text messages at issue in

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this case. However, Defendant’s responds by objecting on the grounds the requests sought

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information that was irrelevant and not reasonably calculated to lead to the discovery of

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admissible evidence because of the number of Digital Life Subscribers and because their cellular

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telephone numbers have no bearing on this case. Defendant also objected to responding to

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Request for Production Nos. 1 and 16 which sought documentation, technical manuals and

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marketing materials concerning the automated text message system and documentation

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describing the methods for reporting on outgoing text calls made, the content of those calls, and

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the call treatment performed when a called party responds to the text call.

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Defendant also objected to Request for Production Nos. 14 and 24. In short, Plaintiff

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disputes that he obtained the discovery he needs to file a motion to certify a class. He seeks very

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limited additional discovery which the Defendant failed to produce before the discovery cutoff.

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Specifically, he seeks to discover customer service records limited to the Digital Life Subscribers

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who enrolled to receive text message notifications from the Defendant, and related information,

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and documents evidencing customers’ complaints of misdirected or unauthorized text message

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notifications from the Defendant. Despite what the motion states Plaintiff does not want to take

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any additional depositions or designate an expert. The motion was in error in this regard.

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Finally, Plaintiff opposes staying completion this limited additional discovery while the

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second motion for summary judgment is under submission arguing that a stay is at odds with the

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need for expeditious resolution of this case.

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DISCUSSION

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Rule 16(b) of the Federal Rules of Civil Procedure requires the court to enter a

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scheduling order that limits the time to: (1) join other parties and to amend the pleadings; (2) file

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and hear motions; and (3) complete discovery.

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expediting the disposition of the action; (ii) establishing early and continuing control so that the

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case will not be protracted because lack of management; (iii) discouraging wasteful pretrial

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activity; (iv) improving the quality of the trial through more thorough preparation; and (v)
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The objectives of Rule 16(b) include: (i)

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facilitating the settlement of the case. Fed. R. Civ. P. 16(b). Because of heavy case loads, trial

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courts enter scheduling orders “to establish deadlines to foster the efficient treatment and

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resolution of cases.” Wong v. Regents of the University of California, 410 F.3d 1052, 1060 (9th

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Cir. 2005). A trial court’s case management efforts “will be successful only if the deadlines are

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taken seriously by the parties, and the best way to encourage that is to enforce the deadlines.” Id.

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at 1061. The district court has broad discretion in supervising the pretrial phase of litigation.

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Miller v. Safeco Title Ins. Company, 758 F.2d 364, 369 (9th Cir. 1985).

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The Local Rules of Practice are numbered to correspond to their Federal Rule of Civil

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Procedure counterparts. See LR IA 1-1. They are to be construed so as to be consistent with the

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Federal Rules of Civil Procedure. See LR IA 2-1. The provisions of LR 26-1 set presumptively

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reasonable time limits for completing discovery, amending the pleadings and adding parties,

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disclosing experts and rebuttal experts, filing dispositive motions and submitting the joint pretrial

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order. One hundred eighty days is deemed presumptively reasonable to complete discovery

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unless the parties request special scheduling review and provide the court with a statement of the

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reasons why a longer or different time period should apply. See LR 26-1(d).

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A court may modify a discovery plan and scheduling order before the expiration of the

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deadlines therein and before the final pretrial order is entered upon a showing of “good cause.”

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Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). The good cause standard

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“primarily considers the diligence of the party seeking the amendment.” Id. The district court

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may modify a scheduling order if the deadlines “cannot reasonably be met despite the diligence

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of the party seeking the extension.” Id. “Moreover, carelessness is not compatible with a

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finding of diligence and offers no reason for a grant of relief.” Id. Finally, “[a]lthough the

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existence or degree of prejudice to the party opposing the modification might supply additional

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reasons to deny a motion, the focus of the inquiry is upon the moving party’s reason for seeking

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modification.” Id. If the party seeking the extension was not diligent, “the inquiry should end.”

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Id. Here, Spencer did not file a timely motion to extend the discovery cutoff 21 days before the

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expiration of the deadline. Rather, this motion was filed more than 8 months after the April 22,

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2015 discovery cutoff expired. It is therefore a motion to reopen discovery, not a motion to

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amend an existing plan.

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Additionally, any motion or stipulation to extend a deadline or to reopen discovery must

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comply with Local Rules 26-4 and 6-1, and include the following:

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(a) a statement specifying the discovery completed;

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(b) a specific description of the discovery that remains to be completed;

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(c) the reasons why the deadline was not satisfied or the remaining discovery was

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not completed within the time limits set by the discovery plan; and,

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(d) a proposed schedule for completing all remaining discovery.

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Failure to comply with scheduling order deadlines “may properly support severe

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sanctions and the exclusion of evidence.” Id. Rule 16(f) authorizes the trial court on motion, or

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sua sponte, to impose any of the sanctions authorized by Rule 37(b)(2)(A)(ii-vii) for a party’s

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failure to obey a scheduling order or other pretrial order. Courts establish discovery plans and

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scheduling orders “to deal with cases in a thorough and orderly manner, and they must be

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allowed to enforce them, unless there are good reasons not to.” Id. at 1062. The Ninth Circuit

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has recognized that disruption of the court’s discovery plan and scheduling order “is not

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harmless.” Id.

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Orders modifying a discovery plan and scheduling order entered before the expiration of

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the deadlines and before the pretrial order may be modified upon a showing of “good cause.”

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Thus, while the court has discretion to modify the pretrial schedule “if it cannot reasonably be

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met despite the diligence of the parties seeking the extension,” Fed. R. Civ. P. 16 Advisory

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Committee Notes (1983 Amendment), “good cause” means scheduling deadlines cannot be met

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despite the parties diligence. “Moreover, carelessness is not compatible with the finding of

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diligence and offers no reason for a grant of relief.” Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 609 (9th Cir. 1992). “Although the existence or degree of prejudice to the party

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opposing the modification might supply additional reasons to deny a motion, the focus of the

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inquiry is upon the moving party’s reason for seeking modification.” Id. “If a party was not

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diligent, the inquiry should end.” Id.
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Having reviewed and considered the matter, the court finds that the Plaintiff has not

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established good cause let alone excusable neglect to reopen the discovery plan and scheduling

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order deadlines.

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This case involves claims that Spencer received unsolicited text messages generated by

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an AT&T Digital Life home security and monitoring system, although he was not a customer of

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this service in violation of the TCPA. AT&T claims that Spencer received these alerts because

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the cell phone number on his prepaid cell phone was previously assigned to a Digital Life

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customer. This customer had set up her account to receive these alerts, but later changed the

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phone number she gave AT&T and did not update her account with new contact information and

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text preferences. When this customer gave up her phone the number was reassigned to the

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prepaid cell phone Mr. Spencer purchased.

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The court conducted an initial status and scheduling conference on November 18, 2014

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on the parties’ stipulated discovery plan and scheduling order which requested special scheduling

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review and 60 days beyond the 180 days deemed presumptively reasonable by LR 26-1(e) to

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complete discovery. At the hearing, counsel for both sides indicated that only a modest amount

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of discovery was needed. The additional 60 days was requested because of the fast approaching

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holidays.

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Plaintiff indicated he intended to serve a request for production of documents and take a

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Rule 30(b)(6) deposition of AT&T.

Counsel for Plaintiff also indicated an expert would

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probably not be designated. Defense counsel indicated he intended to take the deposition of the

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non-party who had the cell phone number before the Plaintiff, Plaintiff’s deposition, and

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Plaintiff’s expert if one was designated. Under these circumstances, the court declined to give

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the parties an additional 60-day extension and entered a standard 180 day plan. The order was

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explicit that “any request for extension of these deadlines would be scrutinized for a strong

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showing of good cause and due diligence.” A motion to extend the discovery cutoff was due no

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later than April 1, 2015. A party moving to extend the discovery cutoff was required to comply

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with the requirements of LR 26-4.

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Plaintiff did not move for an amended discovery plan and scheduling order until more

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than eight months after the discovery cutoff and more than two months after the amended

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complaint was filed. The motion provides no explanation at all for this delay. At the time

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Plaintiff filed the motion to amend, three months remained to complete discovery. Discovery

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closed and AT&T timely filed its second motion for summary judgment. The motion for

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summary judgment is now fully briefed and under submission to the district judge. The motion

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for summary judgment asserts that Plaintiff’s claims fail as a matter of law because the text alerts

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he received at issue were not sent using an automatic telephone dialing system. It also argues

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AT&T did not make the calls at issue, and that the text alerts Plaintiff received fall within the

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TCPA’s broad “emergency purposes” exception. Plaintiff’s response to the motion for summary

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judgment argues that the text messages he received do not fall within the TCPA’s emergency

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purposes exception, and that discovery establishes Defendant “made” the text message calls at

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issue. Plaintiff also argues that Defendant’s system sent Plaintiff text message without any

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human intervention, and were therefore made by an automated dialing system. Alternatively, the

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response asks for Rule 56(d) relief to allow Plaintiff to conduct limited discovery regarding the

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potential functionalities of AT&T’s system.

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The motion for summary judgment is potentially dispositive of the entire case. If
granted, no class discovery is needed.

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However, as the district judge previously assigned to this case granted Plaintiff leave to

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amend to add class allegations. Plaintiff served certain discovery designed to obtain some of the

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discovery he seeks in this motion before the discovery cutoff expired and AT&T objected. The

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court will therefore give Plaintiff a brief opportunity to complete very limited class discovery if

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this case survives summary judgment.

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judgment, the court will compel the Defendant to respond to Request for Production Nos. 1 and

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16 as modified by the court. The requests are overbroad on their face in requesting “any and all

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documentation.” The court will modify Request for Production No. 1 to require production of

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“technical manuals and marketing materials sufficient to determine the functionality of the

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automated text message system at issue in this case.” Request for Production No. 16 is modified

Specifically, provided the case survives summary

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to require production of “sufficient documents to describe the methods for reporting an outgoing

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text message made, the content of those calls, and the call treatment performed when a party

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responds to the text call.”

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The court will also permit Plaintiff to propound two additional requests for production of

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documents seeking customer service records limited to Digital Life subscribers who enrolled to

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receive text message notifications from Defendant during the relevant time period plead in the

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first amended complaint. The court will not require Defendants to disclose all cellular telephone

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numbers associated with the accounts, the names associated with the accounts, or the specific

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dates on which all text messages were sent to the cellular telephone number unless and until a

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motion to certify a class is granted. Finally, the court will permit Plaintiff to serve a request for

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production of documents evidencing Digital Life subscriber complaints that they received

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misdirected or unauthorized text message notifications from AT&T during the relevant time

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period plead in the first amended complaint. No further depositions or expert designation will be

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allowed.

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IT IS ORDERED that:

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1. Plaintiff’s Motion for Entry of an Amended Scheduling Order (Dkt. #53) is

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GRANTED to the limited extent he will be permitted to obtain the limited discovery

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described in the body of this order, if the motion for summary judgment is denied.

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2. Plaintiff will have 14 days from an order denying summary judgment to serve
Defendant with the 4 requests for production described in this order.

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3. Defendant will have 30 days from service of the 4 requests for production to serve

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responses.

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4. Plaintiff will have 90 days from entry of an order denying summary judgment to file a

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motion for class certification.

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5. No additional depositions or expert designations will be allowed.

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6. The deadline for filing dispositive motions has expired and will not be extended.

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7. Any request for relief not specifically addressed in this order is DENIED.

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DATED this 9th day of February, 2016.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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