Federal Deposit Insurance Corporation as Receiver of Amtrust Bank v. Ticor Title Company

Filing 70

ORDER denying 64 Plaintiff's motion to continue trial by Judge Ricardo S Martinez.(RM)

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  1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF AMTRUST BANK, 11 12 13 Case No. C15-1029RSM ORDER DENYING PLAINTIFF’S MOTION TO CONTINUE TRIAL Plaintiff, v. TICOR TITLE COMPANY, a Washington corporation, 14 15 Defendant. 16 This matter comes before the Court on Plaintiff Federal Deposit Insurance Corporation 17 as Receiver of AmTrust Bank (“FDIC-R”)’s Motion to Amend Scheduling Order to Reopen 18 Discovery and Continue Trial, Dkt. #64. The Court finds no need for oral argument. 19 On March 7, 2014, Plaintiff took a pre-litigation, administrative deposition of 20 21 Defendant’s former employee, Agnes Yip. See Dkt. #50-2. Plaintiff filed this lawsuit on June 22 26, 2015, based in part on Ms. Yip’s testimony. See Dkt. #1 at 5. The Court’s current 23 Scheduling Order required discovery to be completed by September 12, 2016, and set a trial 24 date of January 9, 2017. Dkt. #17. On November 7, 2016, nearly two months after the 25 discovery cut-off in this case, Defendant submitted a declaration from Ms. Yip (the “Yip 26 27 28 Declaration”) in opposition to Plaintiff’s motion for summary judgment. See Dkt. #51. Plaintiff moves the Court pursuant to LCR 16(b)(4) to “amend the scheduling order to (1) reopen discovery for the limited purpose of permitting the FDIC-R to take the deposition of ORDER DENYING PLAINTIFF’S MOTION TO CONTINUE TRIAL - 1   1 Agnes Yip, and (2) grant a brief, two-week continuance of the trial in this matter to 2 accommodate the Yip deposition.” Dkt. #64 at 1-2. Plaintiff argues that this Court’s December 3 14, 2016, Order “indicated that the trial may focus upon Ms. Yip’s new assertions that 4 HomeLink, not AmTrust, was the lender in this case.” Id. at 4 (citing Dkt. #63 at 8-9). 5 6 Plaintiff argues that Ms. Yip made factual assertions after the close of discovery and that it was 7 unable to cross-examine her about them prior to the close of discovery. Id. Plaintiff argues 8 that the Federal Rules of Civil Procedure “are designed to eliminate the element of surprise, 9 gamesmanship, and ‘gotcha’ tactics from trial.” Id. 10 In Response, Defendant argues that Plaintiff’s Motion is untimely and that “Plaintiff’s 11 12 procedural missteps in prosecuting its case against Ticor do not support any good faith basis 13 upon which to afford it an opportunity to depose Agnes Yip months past the discovery deadline 14 set by this Court.” Dkt. #68 at 3. Defendant argues that Plaintiff fails to set forth diligence in 15 deposing Ms. Yip within the context of this litigation. Id. at 4. Defendant spends several pages 16 attacking the integrity of the deposition itself. See id. at 6-7. Defendant argues that “in the 17 18 wake of the Court’s ruling on summary judgment against both parties and impending trial in 19 less than two (2) weeks, a deposition of Ms. Yip and continuance of trial is without good cause 20 and unduly prejudicial to Ticor.” Id. at 7. Defendant notes that it filed Ms. Yip’s declaration 21 on November 7, 2016, but that Plaintiff waited until December 22, 2016, to file this Motion, 22 23 and argues that this shows a lack of diligence. Id. at 8. Defendant argues that “there is no new 24 relevant information Plaintiff can gain from a deposition of Ms. Yip, and hence no prejudice to 25 Plaintiff in denying the motion.” Id. at 9. No Reply brief has been filed. 26 27 Under the Federal Rules of Civil Procedure, a scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good 28 cause’ standard primarily considers the diligence of the party seeking amendment.” Johnson v. ORDER DENYING PLAINTIFF’S MOTION TO CONTINUE TRIAL - 2   1 2 3 4 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716, 737 (9th Cir. 2013). As an initial matter, the Court notes that its December 14, 2016, Order did not emphasize that “trial may focus on Ms. Yip’s new assertions…” as argued by Plaintiff. The 5 6 Court’s ruling did not rely on Ms. Yip’s new declaration to raise a question of fact as to 7 whether HomeLink, not AmTrust, was the lender in this case. Instead, the Court stated that 8 “[t]he key documents show that HomeLink, not AmTrust, was listed as the lender in this 9 Transaction,” and that “Ms. Yip’s deposition does not change this fact.” 10 Dkt. #63 at 8 (emphasis added). These key documents have been a part of this case since its inception. 11 12 Turning to the substance of the instant Motion, the Court generally agrees with 13 Defendant’s analysis. Plaintiff failed to act diligently in deposing Ms. Yip in this litigation and 14 has otherwise failed to show good cause to extend the discovery deadline, especially given the 15 closeness to trial and the Court’s prior rulings on summary judgment. These arguments are left 16 uncontested by Plaintiff. Given all of the above, the Court will deny Plaintiff’s Motion. 17 18 Having reviewed the relevant briefing, the declarations and exhibits attached thereto, 19 and the remainder of the record, the Court hereby finds and ORDERS that Plaintiff’s Motion is 20 DENIED. 21 DATED this 3 day of January, 2017. 22 23 24 25 A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 26 27 28 ORDER DENYING PLAINTIFF’S MOTION TO CONTINUE TRIAL - 3

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