ORDER DENYING PLAINTIFF'S
MOTION TO AMEND SCHEDULING
ORDER TO ALLOW FILING OF MOTION TO COMPEL AND COMPLETION
OF DISCOVERY [ECF NO. 16]
On June 17, 2011, Plaintiff filed a Motion to Amend Scheduling Order to Allow Filing of Motion to Compel and Completion of Discovery, along with a Memorandum of Points and Authorities, the Declaration of George De La Flor, and exhibits [ECF No. 16]. After several joint requests to continue the hearing on the Motion, on January 9, 2012, Defendants' Opposition to Plaintiff's Motion to Amend Scheduling Order to Allow Filing of Motion to Compel and Completion of Discovery was filed, along with the Declaration of Robert K. Renner and exhibits [ECF No. 30]. Plaintiff's Reply to Defendant's Opposition to Motion to Amend Scheduling Order was filed on January 16, 2012 [ECF No. 32]. The Court finds the Motion suitable for determination without oral argument. See S.D. Cal. Civ. L.R. 7.1(d)(1).
In his Motion to Amend Scheduling Order, the Plaintiff seeks to extend the time allowed to complete discovery and to file pretrial motions by ninety days. (Mot. Amend Scheduling Order 1-2, ECF No. 16; id. Attach. #1 Mem. P. & A. 9.) Plaintiff also seeks to amend the Scheduling Order for a period of time sufficient to allow the "parties" to file appropriate motions to compel. (Mot. Amend Scheduling Order 1-2, ECF No. 16.)
Plaintiff Matthew Lacy brought this lawsuit to recover ERISA benefits. On April 19, 2010, Lacy filed a Complaint alleging that he was employed as a salesman for Defendant Congoleum Corporation, which is a subsidiary of Defendant American Biltrite, Inc. (Compl. 2, ECF No. 1.) Lacy was covered by a long-term disability plan with those companies. (Id.) Defendant Metropolitan Life Insurance Company was the group insurance provider and administrator of the plan. (Id.)
Plaintiff asserts that in 2002 he suffered a traumatic brain injury during the course of his employment. (Id.) Specifically, he alleges he was injured by a flying golf ball while entertaining clients on a golf course. (Id. at 2-3.) At that time, Lacy was not informed of the benefits available under the company disability plan. (Id. at 3.) The Plaintiff returned to work after a period of rehabilitation. (Id.) Lacy maintains that in May 2007, his health began to decline, and he was unable to work. (Id.)
Plaintiff applied for disability benefits after the qualifying time, but his claim was denied because he had been deemed capable of working. (Id.) Lacy's appeals of the denial were all denied. (Id.)
This Motion to Amend has a protracted history. On September 24, 2010, the Court held a case management conference and issued the Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings [ECF No. 11]. The discovery cutoff was set for May 23, 2011, and trial was scheduled for November 21, 2011. (Case Management Conference Order 6, ECF No. 11.) This Court held settlement conferences on February 8, March 8, April 19, and June 15, 2011 [ECF Nos. 12-15]. Plaintiff filed this Motion to Amend on June 17, 2011, and it was set to be heard on July 25, 2011. (Mot. Amend 1, ECF No. 16.)
On June 30, 2011, the parties filed their first joint request seeking to continue the motion hearing thirty days [ECF No. 19]. Plaintiff's lead attorney at the time, George de la Flor, had a heart attack on June 27, 2011, which was the basis for the parties' request to continue. (Joint Mot. Thirty-Day Continuance 2, ECF No. 19.) Co-counsel of record, James Vallee, remained on the case with George de la Flor. The Court granted the request and continued the motion hearing to September 6, 2011 [ECF No. 20].
On July 27, 2011, the parties filed a second joint motion to continue the hearing on the Motion to Amend as well as all of outstanding dates in the scheduling order by 120 days, in light of de la Flor's health [ECF No. 21]. The request was granted on July 29, 2011, and the hearing on Plaintiff's Motion to Amend was continued to December 12, 2011 [ECF Nos. 23, 24]. Trial was continued to March 26, 2012, but the May 23, 2011 discovery cutoff was not reopened and continued. (Order Granting Joint Mot. Continue Certain Dates 2, ECF No. 23.) The Court stated, "The continuance does not apply to any deadlines in the Scheduling Order that had already lapsed on June 27, 2011, specifically the May 23, 2011 discovery cutoff." (Id.)
Approximately two and one-half months later, on October 12, 2011, attorney Jeffrey Metzger filed a request to substitute as counsel of record in place of George de la Flor and his co-counsel, James Vallee; the district court approved the request [ECF Nos. 25-26].
The parties filed a third joint motion to extend the hearing date and briefing schedule relating to Plaintiff's Motion to Amend, which had been filed more than five months earlier [ECF No. 27]. The parties asserted that Plaintiff's new counsel, Jeffrey Metzger, had informed Defendants "that based on his review of the previously propounded discovery, he was not inclined to pursue the vast majority of it." (Joint Mot. Br. Continuance 1, ECF No. 27.) The Court granted the parties' request and continued the motion hearing to January 23, 2012 [ECF No. 28]. The Court took the Motion to Amend Scheduling Order under submission [ECF N0. 29]. On January 9 2012, the Defendants filed an Opposition to Plaintiff's Motion to Amend [ECF No. 30]. Plaintiff's Reply to Defendants' Opposition was filed on January 16, 2012, by Lacy's current attorney, Jeffrey Metzger [ECF Nos. 30, 32].*fn1
Next, the parties filed a joint motion to vacate the February 24, 2012 pretrial conference and asked for leave to file simultaneous opening and responding trial briefs in lieu of standard pretrial contentions [ECF No. 34]. The district court granted the parties' request and scheduled oral argument for March 26, 2012 [ECF No. 35]. The parties then asked that the oral argument be continued in light of the pending Motion to Amend, and the district court reset the hearing date for June 4, 2012 [ECF Nos. 37-38]. Under the current schedule, opening briefs must be filed by April 30, 2012, and responding trial briefs must be filed by May 21, 2012 [ECF No. 38].
District courts are given broad discretion in supervising the pretrial phase of litigation. Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)). Federal Rule of Civil Procedure 16(b) provides that district courts must issue scheduling orders to establish deadlines for, among other things, the time to complete discovery and file motions.
Fed. R. Civ. P. 16(b)(3)(A). The dates in a scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4).
In assessing whether there is "good cause" under Rule 16(b), the court "primarily considers the diligence of the party seeking the amendment" and the "moving party's reasons for seeking modification." Johnson, 975 F.2d at 609; see Zivkovic, 302 F.3d at 1087 ("The pretrial schedule may be modified 'if it cannot reasonably be met despite the diligence of the party seeking the extension.'") (citation omitted). The diligence of the party seeking to extend deadlines is the touchstone for deciding whether the request should be granted. "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609 (internal citation omitted). "[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id.; see Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (discussing Rule 4(j) of the Federal Rules of Civil Procedure and holding that the inadvertent failure to calendar a deadline did not constitute excusable neglect or good cause).
The Plaintiff seeks to extend the time allowed to complete discovery and file pretrial motions, including motions to compel. (Mot. Amend Scheduling Order 1-2, ECF No. 16; id. Attach. #1 Mem. P. & A. 9.) First, Lacy desires to file a motion to compel a further response to written discovery that was served after the March 21, 2011 deadline. (See id. Attach. #1 Mem. P. & A. 2-3.)
Counsel states that he "inadvertently overlooked the sentence at page 2 of the Order providing, 'All interrogatories and document production requests must be served by March 21, 2011.'" (Id. at 2.) Second, Plaintiff requests leave to move to compel deposition testimony after the discovery cutoff; he ignores the related thirty-day deadline to act on objections to discovery. (See id. at 2-3.) As discussed below, ...