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Kotrous v. Goss-Jewett Company of Northern California

February 17, 2010

JAMES KOTROUS, INDIVIDUALLY AND DOING BUSINESS AS THE MATTRESS FACTORY, PLAINTIFF,
v.
GOSS-JEWETT COMPANY OF NORTHERN CALIFORNIA, INC., A CALIFORNIA CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

AND RELATED CROSS-ACTIONS.

MEMORANDUM AND ORDER

On January 12 and 14, 2010, defendant and cross-defendant Bayer CropScience Inc. ("Bayer") filed motions for summary judgment, or alternatively, summary adjudication against plaintiff James Kotrous ("Kotrous") and defendants and cross-claimants Goss-Jewett Company of Northern California ("Gross-Jewett") and Rosalie A. Anselmo and Karen L. Lilienthal, Co-Trustees of the "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable Trust" ("Anselmo parties"). (Docket #s 240, 242, 251.) In response, Goss-Jewett filed a motion to continue the hearing on Bayer's motion against it in order to conduct additional discovery (Docket #287).*fn1 Fed. R. Civ. P. 56(f). The Anselmo parties joined in Goss-Jewett's motion to continue (Docket #298). Kotrous did not join in the motion, but in conjunction with his opposition to Bayer's motion for summary judgment, he filed a motion to strike Bayer's supporting declarations and moved for discovery sanctions on similar grounds raised by Goss-Jewett its motion to continue. (Docket #305.) As such, the court continued the hearing on all of Bayer's motions for summary judgment in order to hear, in the first instance, the motion to continue. (Docket #313.)*fn2

In response to the motion to continue, Kotrous filed "objections," stating his opposition to the motion on the grounds Goss-Jewett did not diligently move to modify the pretrial scheduling order to permit time for further discovery and it did not justify the need for additional discovery under Rule 56(f). (Docket #333.) Bayer opposes the motion on similar grounds.*fn3

For the reasons set forth below, the court grants GossJewett's motion to continue the hearings on Bayer's motions for summary judgment and permits time for further discovery pertinent to the motions. Such relief is properly granted pursuant to Federal Rules of Civil Procedure 56(f).*fn4 Moreover, although discovery in this case has closed, the court finds good cause to modify the pretrial scheduling order to reopen discovery since Goss-Jewett has acted diligently in seeking the instant relief. Fed. R. Civ. P. 16(b).

BACKGROUND

Kotrous commenced this action against Goss-Jewett and numerous other parties in July 2002, to recover response costs under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") and other damages resulting from alleged contamination at his real property, located at 4301 Iron Point Road, Sacramento, California (the "Site"), that was leased for over thirty years to Goss-Jewett. Goss-Jewett cross-claimed against Bayer alleging that Stauffer Chemical ("Stauffer), Bayer's predecessor, caused a release of perchlorethylene ("PCE") at the Site. While Bayer admits Stauffer supplied PCE to GossJewett's facility located on the Site, Bayer contends in moving for summary judgment that there is no colorable evidence that Stauffer ever delivered PCE to the Site. According to Bayer, there is no evidence that Stauffer owned or operated the tanker truck at issue, released any PCE at the Site, or is otherwise responsible for the contamination at the Site.

During the regular course of discovery, in October 2009, Goss-Jewett noticed the deposition of Bayer's corporate representative in order to discover facts relating to the delivery of PCE to Goss-Jewett and the Site. (Ex. A to Oca Decl., filed Jan. 29, 2010.) Initially, Bayer objected to GossJewett's notice, stating, among other things, that it had no relevant witnesses on the issue of deliveries of PCE to Goss-Jewett. (Id. at Ex. C.) Thereafter, Goss-Jewett communicated with Bayer in an attempt to reach an agreement on a date for a deposition of Bayer's corporate representative. (Id. at ¶s 6-7; Johnson Decl., filed Feb. 4, 2010.) Ultimately, though still insisting that it had no relevant witnesses, Bayer agreed to produce a corporate witness, but the parties could not agree on a date for the deposition which was prior to the scheduled close of discovery on November 30, 2009. (Marsh Decl., filed Feb. 8, 2010, ¶s 3-5.) Instead, the first mutually agreeable date was December 7, 2009. That date, however, was post- the discovery cut-off.

Goss-Jewett and Bayer, as well as other parties, then reached an agreement to request an extension of the discovery deadline from the court so that a variety of additional depositions could be conducted, including the deposition of Bayer's corporate representative. (Johnson Decl., ¶s 3-9.) However, Kotrous, among others, would not agree to continue the deadlines. (Oca Decl., ¶ 8.)

Discovery closed on November 30, 2009, and no party moved to extend the deadline. Thereafter on January 12 and 14, 2010, Bayer filed its motions for summary judgment against Kotrous, Goss-Jewett and the Anselmo parties. As sole support for its motions, Bayer submitted the declarations of three former Stauffer employees who attested that Stauffer never delivered PCE to Goss-Jewett's facility via Stauffer tanker tanks during the relevant times.*fn5 Rather, transportation was provided by an independent carrier, Post Transportation. Bayer had disclosed the names of these Stauffer employees in 2005 in its Second Supplemental Initial Disclosures (Marsh Decl., ¶ 6); however, significantly, it did not identify these individuals as relevant witnesses in response to Goss-Jewett's Rule 30(b)(6) deposition notice.*fn6

Goss-Jewett now moves to continue Bayer's motion for summary judgment in order to depose these individuals or any other Bayer witness who falls within the parameters of Goss-Jewett's corporate deposition notice.*fn7 (Oca Decl, Ex. A.)

STANDARD

1. Rule 16(b)

A pretrial order "shall not be modified except upon a showing of good cause." Fed. R. Civ. P. 16(b). The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting Fed. R. Civ. P. 16, advisory committee's notes (1983 amendment)). The "good cause" standard set forth in Rule 16 primarily focuses upon the diligence of the party requesting the amendment. "Although the existence or degree of prejudice to the party opposing the ...


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