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Andrea Van Scoy, Lynda Azevedo, Diana v. New Albertson's Inc.

March 18, 2011

ANDREA VAN SCOY, LYNDA AZEVEDO, DIANA MURDOCK, CHRISTINA CARNES; MINA JO GUERRERO, MIRACLE JOHNSON, ROSANNE LAZUKA, PATRICIA LOGAN, TERESA LYON, THERESA ORTH, AND MARA GRACE SMITH, PLAINTIFFS,
v.
NEW ALBERTSON'S INC., ALBERTSON'S, INC., SAVE-MART SUPERMARKETS, INC., LUCKY'S INC.; AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.



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

MEMORANDUM AND ORDER

Through the motion presently before the Court, Plaintiffs seek to reopen, on a limited basis, the deadline imposed by this Court for the completion of discovery.

Plaintiffs concurrently ask that the Court's Pretrial Status (Scheduling) Order be modified to that effect. As set forth below, Plaintiffs' Motion will be denied.*fn1

BACKGROUND

Plaintiffs commenced this action, which alleges retaliation, harassment and other wrongful personnel practices against Defendant Save Mart Supermarkets, Inc. ("Defendant")*fn2 on March 20, 2008 in the Superior Court of the State of California in and for the County of Solano. On May 8, 2008, Defendant, asserting that its alleged personnel practices implicated the terms of the applicable collective bargaining agreement, timely removed the lawsuit to this Court, pursuant to 28 U.S.C. § 1441

(a) and (c), on grounds that any state claims were preempted by the Labor Management Relations Act, 29 U.S.C. § 141, et seq.

The Court issued its Pretrial Scheduling Order ("PTSO") on April 21, 2009. The PTSO included, among other deadlines, a directive that all discovery be completed by April 14, 2010.

By the time the PTSO was filed, Defendant had already submitted its initial disclosures (on April 13, 2009) which identified both Donna Breitenbach and Lois Douglas as witnesses with information pertinent to the case. See Decl. of Matthew A. Goodin, ¶ 2, Ex. A.

In the next six months, Plaintiffs propounded no discovery. Although some written discovery requests were made in November of 2009, at about that time Plaintiffs' counsel asked that discovery be held in abeyance until approximately February of 2010 because of her father's terminal illness. Id. at ¶ 3. Defense counsel agreed to that request, but by February of 2010 it became clear that discovery could not be completed by the then applicable discovery cut-off date of April 14, 2010. Consequently, an agreement was reached to continue that date under the circumstances and a joint stipulation was submitted continuing the discovery deadline until August 2, 2010. Id. at ¶ 4. By Order dated February 10, 2010, the Court approved that stipulation.

According to defense counsel, by July of 2010, Plaintiffs had not noticed a single deposition, or even inquired about scheduling such discovery. Id. at ¶ 5. Nonetheless, because of subsequent difficulties encountered in scheduling Plaintiffs' depositions, the parties again stipulated to continuing both the discovery cutoff and certain other related deadlines. By Order dated August 5, 2010, that second stipulation extending the discovery deadline was approved by the Court establishing a new cut-off date of December 31, 2010.

Defense counsel claims, and Plaintiffs do not controvert, that by this time not a single deposition had been noticed by Plaintiffs even though the case had been pending for well over two years. See id. at ¶ 7.

On August 23, 2010, Plaintiffs did notice the deposition of Monica Sanchez, an Employee Relations Generalist for Save Market Supermarkets. Although Plaintiffs' counsel had concurrently asked to also depose Donna Breitenbach, Ms. Breitenbach could not be deposed at the requested time due to major surgery on her husband's part.

Plaintiffs filed a Motion to Remand on September 27, 2010, and Plaintiffs' counsel took the position during the pendency of that Motion that she would engage in no discovery despite the fact that no court order to that effect had been forthcoming, and despite defense counsel's objection to holding discovery in abeyance and his attempts to conduct discovery during that period. Id. at ¶ 11-12.

On December 10, 2010, the Court issued its order denying Plaintiffs' Motion to Remand. Thereafter, by deposition notices containing a proof of service for Sunday, December 18, 2010 (but not received by defense counsel until December 21 and 22, respectively), Plaintiffs noticed the depositions of Donna Breitenbach (who by this time was no longer employed by Save Mart), as well as Lois Douglas and the person most knowledgeable at Save Mart to testify concerning 22 separate categories in information. All three ...


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