IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 18, 2010
INTEGON PREFERRED INSURANCE CO. PLAINTIFF,
SUSANA ISZTOJKA, D/B/A CALIFORNIA GOLD STAR HAULING, DEFENDANT.
FRANCESCA EISENBRANDT; CONNIE EISENBRANDT; AND SCOTT EISENBRANDT, INTERVENORS.
The opinion of the court was delivered by: Timothy M. Burgess United States District Judge
[Re: Motion at Docket No. 79]
At Docket No. 79 Intervenors Francesca Eisenbrandt, Connie Eisenbrandt, and Scott Eisenbrandt have moved to modify the Pretrial Order entered herein on November 9, 2007,*fn1 as amended on July 30, 2010.*fn2 Plaintiff has opposed the motion, and Intervenors have replied. In their motion, Intervenors request that they be permitted to take the depositions of Integon Regional Manager Greg Moody and the Integon person most qualified on the issue of the relationship between Integon and Jeffrey Mangelli. Under the terms of the November 9, 2007, Pretrial Order all discovery closed in this case on February 27, 2008. Thus, it has been more than two and a half years since discovery in this case closed.
The court has determined that oral argument would not materially assist the court in deciding the motion. The matter is, therefore, submitted on the briefs and the hearing on oral argument scheduled for October 29, 2010, will be vacated.*fn3
This court has discretion to modify its pretrial scheduling order for cause.*fn4
"Good cause" for amendment of a scheduling order primarily concerns the diligence of the party seeking the extension.*fn5 In this district, motions for relief to conduct further discovery after the discovery closing date will ordinarily be denied unless the moving party makes a strong showing.*fn6 In this case, Intervenors' have failed to show that the requested additional discovery is necessary to the successful defense of the lawsuit. In their motion and reply Intervenors make essentially two arguments, both of which lack merit.
First, Intervenors' argue they need to develop the "understanding" of the extent of the authority granted Mr. Mangelli by Integon. Intervenors, argue that the extent of Mr. Mangelli's authority may be established under the theory of "ostensible authority." Under California law, "ostensible authority arises out of conduct of the principal which causes the third party reasonably to believe that the agent possesses authority to act on the principal's behalf."*fn7 On the other hand "[a]ctual authority arises as a consequence of conduct of the principal which reasonably causes an agent to believe that the principal consents to the agent's execution of an act on behalf of the principal."*fn8 In this case, there is no allegation of, let alone evidence to support, a theory of ostensible authority, i.e., there is nothing to show that the conduct of Integon reasonably led Ms. Isztojka to believe that Mr. Mangelli had the authority to bind Integon. Mr. Mangelli, with the consent of Integon, has been deposed and testified as to his understanding of his actual authority under the agreement between himself and Integon. What Intervenors have failed to show is how the testimony of Mr. Moody, or the person at Integon most qualified on the issue of the relationship between Mr. Mangelli and Integon, is relevant to the issue of actual authority.
Intervenors' alternative argument, that development of the basis for the allegations in Integon's Complaint that Mr. Mangelli was the "agent" of Integon is necessary, is likewise without merit. The unverified Complaint in this case was drafted and signed by an attorney. There is nothing in the record to indicate that Mr. Moody was the person who provided the information that formed the basis for the complaint. Indeed, that person is unidentified and may or may not be the person at Integon most qualified on the issue of the relationship between Mr. Mangelli and Integon. The person most likely to have the information concerning how that allegation came to be in the Complaint is Paul D. Loreto, the attorney who signed and, presumably, drafted the Complaint. Intervenors have not requested to take his deposition.*fn9
Intervenors having failed to show good cause for reopening discovery, IT IS THEREFORE ORDERED THAT the Motion to Modify Pre-Trial Order Dated November 9, 2007 and to Compel Depositions and Production of Documents at Docket 79 is DENIED.
IT IS FURTHER ORDERED THAT the hearing on oral argument scheduled for October 29, 2010, is hereby VACATED.