REID YEOMAN and RITA MEDELLIN, on behalf of themselves and all others similarly situated, Plaintiff,
IKEA U.S.A. WEST, INC., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO REOPEN DISCOVERY AND EXTEND EXPERT DEADLINES [Doc. No. 100
BERNARD G. SKOMAL, Magistrate Judge.
On June 26, 2013, the Hon. William Q. Hayes referred Plaintiffs' pending motion to reopen discovery and extend expert deadlines to the undersigned. (Doc. No. 113.) As an initial matter, Plaintiffs did not follow Judge Skomal's Chambers' Rules with respect to bringing this dispute to the Court's attention, and because it is a scheduling and discovery matter, Plaintiffs should have done so and filed the motion before the undersigned.Nevertheless, Plaintiffs filed the instant motion on April 26, 2013 before Judge Hayes. (Doc. No. 100). Defendant opposes the motion. (Doc. No. 102.)
The Court has thoroughly reviewed all of the papers filed by both parties, not only with respect to the pending discovery motion, but also all of the papers filed in support of and opposition to Defendant's motion to decertify, Plaintiffs' motion to strike evidence, Plaintiffs' motion to exclude witnesses, as well as Judge Hayes's orders on same. For the reasons set forth below, Plaintiffs' request is Granted in Part and Denied in Part.
On March 2, 2011, Plaintiff Reid Yeoman initiated this action by filing a Complaint in the Superior Court of California for the Country of San Diego. The Complaint contained one claim for violation of the Song-Beverly Credit Card Act of 1971. (Doc. No. 1.) On November 8, 2011, Plaintiff Yeoman filed an Amended Complaint and added Plaintiff Rita Medellin to the action. Plaintiffs allege that they purchased items from Ikea using their credit cards and that during the credit card transactions, the cashier asked Plaintiffs for their zip code and, believing that they were required to provide the requested information to complete the transactions, Plaintiffs provided it. (Doc. No. 25 at 3.) Plaintiffs' complaint alleges that "Ikea systematically and intentionally violates the [Song-Beverly Credit Card Act of 1971] by uniformly requesting that cardholders provide personal identification information, including their ZIP codes, during credit card transactions, and then recording that information in electronic database systems." ( Id. at 2.)
After receiving a number of extensions, Plaintiffs filed a Motion for Class Certification on January 13, 2012. (Doc. No. 30.) The motion was granted on May 4, 2012. (Doc. No. 43.) The certified class consisted of "all persons from whom Ikea requested and recorded a ZIP Code in conjunction with a credit card transaction in California from February 16, 2010 through the date of trial in this action." Id.
Two months after the order certifying the class was issued, the parties sought to continue fact and expert discovery for 90 days because Defendant served its Second Supplemental Response to Request for Production of Documents and Plaintiffs believed additional Rule 30(b)(6) depositions were necessary. (Doc. No. 48-1 at 2.) Plaintiffs served an Amended Rule 30(b)(6) Deposition Notice on July 5, 2012, but Defendant's 30(b)(6) witness, Ms. Wallace, was not available for deposition prior the fact discovery deadline. ( Id. ) In their motion to extend time, the parties asked for an additional 90 days for discovery but did not specifically explain whether any other Rule 30(b)(6) designees needed an extension of the discovery deadline and Plaintiffs provided no other basis for seeking to extend the discovery deadlines by 90 days. ( Id. ) Accordingly, the Court found good cause to extend discovery solely to take the Rule 30(b)(6) witness deposition, but did not find good cause to otherwise extend fact or expert discovery deadlines. (Doc. No. 50.) Thus, the deadline to exchange expert reports remained set for September 17, 2012 and the deadline to supplement any expert reports or disclosures remained set for October 19, 2012. (Doc. Nos. 42, 50.)
On September 7, 2012, Defendant filed a motion to decertify or modify the class. (Doc. No. 51.) Defendant's motion stated that during discovery it learned: 1) that many cashiers circumvented the ZIP Code recording process; 2) Defendant's records cannot distinguish between certain debit card transactions, which are not covered by the Song-Beverly Credit Card Act, and credit card transactions; and 3) that transactions made at self-checkout kiosks are not covered by or are exempt from the Song-Beverly Credit Card Act. ( Id. at 51-1.) Defendant included a declaration from John Robinson, Treasurer for Ikea North America, in support of its motion to decertify the class. (Decl. Robinson; Doc. No. 51-7.) Mr. Robinson's declaration indicated that "Visa-branded and MasterCard-branded Signature Debit Cards appear in Ikea's transaction logs as "VISA" and "MC" transactions, rather than as "DEBT" for a debit card transaction. ( Id. at ¶ 7.) The identification of the transaction as either "VISA" or "MC, " however, does not mean that the transaction was not made using a "signature debit card" that requires a PIN. ( Id. at ¶ 9.) In addition, Mr. Robinson stated that from February 1, 2010 to the present, customers dictate whether their purchases using signature debit cards should be processed as a traditional debit transaction requiring a PIN or as a signature requiring credit transaction. ( Id. at ¶¶ 10-11.) Defendant has never kept a record of the customers' response to the prompt asking whether the payment should be processed as a debit or credit transaction, and the customers' "responses cannot be ascertained from the transaction logs or any other of [Defendant's] data or records." ( Id. at ¶ 11.)
Notably, Plaintiffs did not seek to reopen discovery after reviewing Defendant's motion and Mr. Robinson's declaration. Rather, Plaintiffs filed a motion to exclude four other witnesses from providing evidence on the motion to decertify or at trial. (Doc. No. 61.) The motion to exclude did not mention Mr. Robinson's declaration or any of the issues his declaration addressed. ( See Doc. No. 61.) Plaintiffs only alleged that these four witnesses were disclosed untimely and therefore should not be allowed to provide testimony or evidence in the case. ( Id. ) Judge Hayes denied the request to exclude the witnesses, finding that Defendant's disclosure was timely. (Doc. No. 93.)
Also of note is that Plaintiffs' opposition to the motion to decertify explicitly addressed Defendant's arguments with respect to the inability to distinguish between certain credit card and signature debit card transactions. (Doc. No. 67 at 12.) Plaintiffs were not at all concerned with whether Defendant could distinguish between the types of transactions and nowhere mentioned the need to conduct further discovery into the matter. In fact, Plaintiffs responded to Defendant's concern that there "is no class-wide means to determine liability, " with the response that "by definition, individuals who did not make a purchase with a credit card are not members of the Class and they can determine that themselves from the criteria set forth in the Class definition." ( Id. ) Plaintiffs' only concern with respect to Mr. Robinson's declaration was made in a footnote. (Doc. No. 67 at n. 3.) The footnote simply requested that Judge Hayes not consider Mr. Robinson's declaration due to their contention that the recent declaration contradicted earlier responses made in interrogatories and deposition testimony. ( Id. ) Plaintiffs did not mention a need to conduct additional discovery. ( See id. ) Moreover, Plaintiffs clearly stated that "even if Robinson's newly provided evidentiary submission is true, Class members can be identified through examining their credit card numbers to determine whether the transaction in question was made with a credit card or a debit card." ( Id., citing Plaintiffs' expert's declaration; McCormack Decl., at ¶¶ 12-19.) Finally, Plaintiffs argued that the only information necessary to determine the amount of the civil penalty was an analysis of the Defendant's conduct, not "the individual circumstances or beliefs of Class members." ( Id. at 15.)
After receiving extensive briefing from both parties on the motion to decertify, as well as Plaintiffs' motion to exclude witnesses, strike witness declarations, Defendant's Second Supplemental Responses to Special Interrogatories, Set One, and portions of Mr. Robinson's declaration, Judge Hayes denied Plaintiffs' motion to strike and exclude. (Doc. No. 93.) Judge Hayes also granted in part and denied in part Defendant's motion to decertify. ( Id. )
Ultimately, the decision on the motion to decertify the class merely modified the class definition to:
[A]ll persons from whom Ikea requested and recorded a ZIP Code in conjunction with a credit card transaction in California from February 16, 2010 through February 28, 2011 (the Class'). Excluded from the Class are (i) transactions wherein personal information was required for a special purpose incidental but related to the individual credit card transaction, including, but not limited to, information relating to shipping, delivery, servicing, or installation of the purchased merchandise, or for special orders; (ii) transactions wherein a credit card issued to a business was used; and (iii) transactions executed at self checkout kiosks.
Id. Therefore, the only change to the class definition was the modification of the class period and the exclusion of transactions executed at self-checkout kiosks. The order also specifically addressed Plaintiffs' and Defendant's arguments with respect to Defendant's inability to determine whether a credit card was technically used during certain signature debit card transactions. ( Id. at 21.) Judge Hayes was not concerned with this difficulty or potential impossibility, and found that "whether a credit card was actually used are not questions affecting individual members of the class because only credit card-paying customers from whom a ZIP code was requested meet the requirements for class membership." ( Id. ) Moreover, Judge Hayes was not troubled by the parties' inability to identify class members by name because "[a] procedure involving customer submissions will need to be established in order to ascertain the identities of class members." ( Id. at 22.)
What is before the Court at this time is Plaintiffs' desire to belatedly amend the scheduling order so that discovery may be reopened for Plaintiffs to "gain access to and review [Defendant's] transaction logs, databases, and records with respect to its credit card transactions and its customers' information collected from February 16, 2010 through February 28, 2012 ("Class Period"). (Mot. to Reopen; Doc. No. 100-1 at 3.) In addition, Plaintiffs want to retain an additional expert consultant and therefore would like to reopen discovery in order to disclose a new expert. ( Id. ) Finally, Plaintiffs want to further amend the schedule and extend expert discovery so that they may take the depositions of eight witnesses Defendant disclosed in August 2012, as well as complete the deposition of Dr. Dennis H. Tootelian, which was cut short due to Dr. Tootelian's illness. ( Id. ) Defendant does not oppose Dr. Tootelian's deposition, but does oppose Plaintiffs' requests to reopen discovery and extend time to take the other expert witness depositions. (Opp'n at n. 4; Doc. No. 102.)
II. APPLICABLE LEGAL STANDARDS
Federal Rule of Civil Procedure 6(b) governs Plaintiffs' request to reopen discovery and designate an additional expert witness. The rule provides: "When an act may or must be done within a specified time, the court may, for good cause, extend time... on motion made after the time has expired if the party failed to act because of excusable neglect. " Fed.R.Civ.P. 6(b)(1)(B) (emphasis added).
In Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993), the United States Supreme Court established a four-part balancing test for determining whether there has been "excusable neglect." Although that case involved Federal Rule of Bankruptcy Procedure 9006(b)(1), the Court reviewed the various contexts in which the phrase appears in the federal rules of procedure and made clear that the test applies in all of those contexts. Id. at 395. The factors include: (1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party's conduct was in good faith. Pioneer, 507 U.S. at 395. Pioneer requires a flexible approach and one where no one factor is more significant than any other and cautioned against "erecting a rigid ...