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Ottovich v. City of Fremont

United States District Court, Ninth Circuit

June 26, 2013

MARK OTTOVICH, et al., Plaintiffs,
CITY OF FREMONT, et al., Defendants.


MAXINE M. CHESNEY, District Judge.

Before the Court are plaintiff Mark Ottovich's (1) Motion to Reopen Discovery and (2) Motion to Reconsider Sanctions and to Vacate Order of November 16, 2012, both filed April 26, 2013. Defendants have filed opposition, to which plaintiff has replied.[1] Having read and considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.[2]

A. Motion to Reopen Discovery

Plaintiff moves to reopen discovery pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, which, in relevant part, provides: "a schedule may be modified only for good cause and with the judge's consent." See Fed.R.Civ.P. 16(b)(4).[3] "Rule 16(b)'s good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604, 609 (9th Cir. 1992); see also Fed.R.Civ.P. 16 Advisory Committee's Notes (1983 amendment) (noting district court may modify pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension.") "If [the party seeking the modification] was not diligent, the inquiry should end there." See Johnson , 975 F.2d at 609. Here, plaintiff has not made the requisite showing of diligence.

In that regard, the court first notes that the case was filed in state court almost four years ago, and has been pending in federal court since September 2009. Following extensive motion practice and plaintiff's filing of multiple amended complaints, the Court issued its initial pretrial preparation order, setting October 12, 2011 and December 16, 2011 as the deadlines for completion of non-expert and expert discovery, respectively. (See Pretrial Preparation Order, filed Oct. 8, 2010; Am. Pretrial Preparation Order, filed Jan. 6, 2011.)[4] From November 2009 to December 2011, plaintiff was represented by counsel, and conducted no discovery during that period. (See Helfrich Decl. ¶ 4.) Plaintiff requests the Court not impute to him any omissions on the part of his attorney. Plaintiff, however "voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent." See Link v. Wabash R. Co. , 370 U.S. 626, 633-34 (1962) (holding "each party is deemed bound by the acts of his lawyer-agent"). Further, as discussed below, plaintiff himself has, without good cause, failed to avail himself of the more than adequate time provided by the Court for discovery.

On December 12, 2011, the Court granted plaintiff's attorney's motion to withdraw. (See Order, filed Dec. 12, 2011.) Thereafter, the Court stayed discovery and twice continued the proceedings to afford plaintiff the opportunity to obtain new counsel. (See Minute Entry, filed Jan. 27, 2012; Minute Entry, filed Mar. 16, 2012.) When, at the Case Management Conference held April 20, 2012, plaintiff reported he was unable to find representation, the Court issued a revised scheduling order, setting October 15, 2012 and November 16, 2012 as the new deadlines for non-expert and expert discovery, respectively. (See Minute Entry, filed, Apr. 20, 2012; Second Am. Pretrial Preparation Order, filed Apr. 20, 2012.)

Despite his having been afforded those additional six months in which to conduct discovery, plaintiff took no steps to do so. By way of explanation, plaintiff states he conducted no discovery "because he mistakenly believed that he knew this case and did not feel he needed discovery based on his trial experience" and because he "failed to appreciate and recognize the importance of discovery." (See Mot. to Reopen Discovery ("Mot. to Reopen") at 5:2-3, 13.)[5]

Plaintiff, however, was alerted to the importance of conducting discovery as he personally appeared at the Case Management Conference at which the Court stayed discovery to allow him to obtain, and thus to conduct discovery with the assistance of, new counsel (see Minute Entry, filed Jan. 27, 2012); he also personally appeared at the Case Management Conference at which the Court reset the discovery deadlines in light of his stated inability to obtain counsel (see Minute Entry, filed Apr. 20, 2012); and, as of the date set for completion of non-expert discovery, he had been served on five separate occasions with notices to appear for his own deposition (see Helfrich Decl. ¶¶ 6-8).

In sum, plaintiff has failed to either show an inability to comply with the Court's scheduling order or diligence in seeking modification thereof, and, thus fails to show good cause for the requested extensions. See Kuschner v. Nationwide Credit, Inc. , 256 F.R.D. 684, 687 (E.D. Cal. 2009) (holding good cause may be found if moving party shows (1) "that [he] is unable to comply with the scheduling order's deadlines due to matters that could not have reasonably been foreseen at the time of the issuance of the scheduling order, " and (2) "that [he] was diligent in seeking an amendment once it became apparent that [he] could not comply with the scheduling order").

Accordingly, plaintiff's motion to reopen discovery is hereby DENIED.[6]

B. Motion to Reconsider Sanctions

Plaintiff moves the Court, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, to reconsider its order imposing sanctions for his failure to appear at the above-referenced five noticed depositions. (See Order, filed Nov. 16, 2012); see also Fed.R.Civ.P. Rule 37(d). As noted, however, Rule 60(b) applies only to a final judgment, order, or proceeding, see Fed.R.Civ.P. 60(b), and an order imposing discovery sanctions does not constitute such an order, see Cunningham v. Hamilton Cnty., Ohio , 527 U.S. 198, 200 (1999) (holding order imposing sanctions under Rule 37 does not constitute final decision). Consequently, the instant motion is governed by Rule 54(b) of the Federal Rules of Civil Procedure, under which district courts have discretion to reconsider orders issued prior to entry of final judgment. See Fed.R.Civ.P. 54(b) (providing "any order... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties... may be revised at any time before the entry of a judgment").

In this district, a party seeking reconsideration must first request leave to file a motion for reconsideration, see Civ. L.R. 7-9(a) (providing "[n]o party may notice a motion for reconsideration without first obtaining leave of Court to file the motion"), which plaintiff has not done. As plaintiff is proceeding pro se, however, the Court will treat the instant motion as a motion for leave to file a motion for reconsideration. In that regard, a party seeking leave to file a motion for reconsideration "must specifically show":

(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.

See Civ. L.R. 7-9(b)(1)-(b)(3).

Plaintiff's motion fails to make the requisite showing. First, rather than addressing any of the above-referenced grounds for reconsideration of the Court's ruling on defendant's motion for sanctions, plaintiff focuses primarily on his reasons for his failure to file opposition thereto, again pointing to his numerous pending lawsuits and other distractions. (See Mot. for Reconsideration of Sanctions ("Mot. for Reconsideration") at 3-5.) To the extent plaintiff addresses the merits of defendant's motion for sanctions, he endeavors to excuse his multiple failures to appear for deposition by stating he "inform[ed] opposing counsel that proposed dates presented problems for [him] for various reasons" (see id. at 3:2-3) and that he is "willing to be deposed after securing an attorney" (see Ottovich Decl. ¶ 15). He also states he is unable to pay the sanctions awarded "because [of] financial hardships." (See Mot. for Reconsideration at 7:2-3.) Plaintiff, however, does not in any manner suggest that any such circumstance is newly discovered by him. Moreover, with the exception of plaintiff's asserted financial condition, all such circumstances were called to the Court's attention by defendants at the time of their motion (see Helfrich Decl. in Supp. of Mot. for Sanctions, filed Oct. 24, 2012, ¶¶ 3-16 & Exs. 1-4), and, consequently, were considered by the Court prior to its ruling thereon.

Accordingly, plaintiff's motion for reconsideration is hereby DENIED.


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