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Medifast, Inc. v. Minkow

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 1, 2010

MEDIFAST, INC.; BRADLEY MACDONALD, PLAINTIFFS,
v.
BARRY MINKOW; FRAUD DISCOVERY INSTITUTE, INC.; ROBERT L. FITZPATRICK; TRACY COENEN; SEQUENCE, INC.; WILLIAM LOBDELL; IBUSINESS REPORTING; AND ZEEYOURSELF, DEFENDANTS.

The opinion of the court was delivered by: Bernard G. Skomal United States Magistrate Judge

ORDER GRANTING PLAINTIFFS' EX PARTE MOTION FOR EXTENSION OF TIME

On September 30, 2010, Plaintiffs Medifast, Inc. and Bradley MacDonald filed an ex parte motion for extension of time to complete discovery as to third-party witness Christopher Grell.*fn1 (Doc. No. 79.) Plaintiffs seek an eighteen (18) day extension of the limited discovery ordered by the District Court. (See Doc. No. 46.) The Court ordered this discovery to take place within ninety (90) days and was to be completed on or before August 4, 2010. (Doc. Nos. 46 & 47.) On August 13, 2010, the Court granted Plaintiffs an extension of sixty (60) days to October 4, 2010, to complete thirteen items of outstanding discovery. (Doc. No. 63.) Plaintiffs now seek an eighteen day extension of the discovery cut-off to complete items 10 and 11 that relate to third-party witness Christopher Grell. (Doc. No. 79.) Third-party witness Christopher Grell filed a response in opposition*fn2 to Plaintiffs' ex parte motion on September 30, 2010. (Doc. No. 80.)

Grell, a third-party witness and an attorney representing Defendant Robert L. Fitzpatrick in this case, agreed during a case management conference on August 13, 2010 that he would accept service of a third-party witness subpoena by mail or Fed-Ex delivery.*fn3 (Doc. No. 63 at 2.) Plaintiffs had been attempting to serve Grell with third-party subpoenas for his attendance at a deposition and for production of documents.

Doc. No. 56-2, Ex. A.) Plaintiffs served Grell with the subpoenas by Federal Express delivery on August 16, 2010. (Doc. No. 79-2, Cohen Decl. ¶8.) Grell objected to service by Fed-Ex of a subpoena duces tecum on the ground that he only agreed to accept service of one deposition subpoena by mail or FedEx delivery. (Id. ¶10.) Plaintiffs then moved to compel Grell's compliance with the subpoena duces tecum in the Northern District of California. (Id. ¶13.) The hearing on Plaintiffs' motion to compel is currently scheduled on October 8, 2010 before Judge Spero. (Id. Ex. 3.) Therefore, Grell's document production and deposition remain outstanding discovery issues that will not be resolved by the October 4, 2010 deadline. It appears that Plaintiffs have acted with due diligence in attempting to resolve the issues relating to the subpoenas and in attempting to complete all the discovery by the deadline.*fn4

Grell fails to put forth any substantive argument against a brief extension of time that will allow the Northern District of California an opportunity to decide the pending motion to compel. (See Doc. No. 80.)

Grell's arguments concern mainly the use by Plaintiffs of an ex parte motion for an extension of time, which Plaintiffs were granted permission to file by the Court. Plaintiffs have complied with Civ. L.R. 83.3(h) by attaching a declaration of counsel that Grell was informed about Plaintiffs' intention to file the motion to extend time and chose not to join in the motion. (Doc. No. 79-2 ¶¶19 & 21.) Grell's other arguments go to the merits of the pending motion to compel that is currently in front of Judge Spero. This Court will defer to Judge Spero's ruling on the pending motion, as the Northern District of California has jurisdiction over the disputed subpoenas.

The Court, for good cause shown, grants Plaintiffs' ex parte motion for extension of time to complete discovery and extends the limited discovery cutoff to October 22, 2010. The extension of time for completing limited discovery shall be limited to the two items of outstanding discovery that relate to Grell and are identified in Plaintiffs' ex parte motion for extension of time. (Doc. No. 79-1 at 2.) The limited period of discovery cutoff remains October 4, 2010 for all other items.

Plaintiffs have also requested sanctions be imposed on Grell. (Doc. No. 79-1 at 7.) Plaintiffs seek sanctions in the form of payment of the attorneys fees and costs associated with bringing the instant ex parte motion for a second extension of time. (Id.) The Court advised the parties that failure of any party to act with due diligence in completing the limited discovery within the extended time period may result in the imposition of sanctions. (Doc. No. 63 at 2.) While the Court questions the propriety of Grell's alleged conduct and how it may affect his representation of Fitzpatrick, Grell is not a party to this action and his dilatory tactics do not relate to discovery propounded upon his client in this matter. He is a third-party witness who is objecting to service of a subpoena issued out of another district. Plaintiffs have failed to supply the Court with any legal basis for imposing sanctions in such a situation. Therefore, the Court denies Plaintiffs' requests for sanctions.

IT IS SO ORDERED.


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