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Dunfee v. Truman Capital Advisors, LP

United States District Court, Ninth Circuit

October 11, 2013

GORDON E. DUNFEE, et al., Plaintiffs,
TRUMAN CAPITAL ADVISORS, LP, et al., Defendants.


DAVID H. BARTICK, Magistrate Judge.

On September 27, 2013, Plaintiffs filed a document entitled "Plaintiffs' Notice of Motions and Motions to Quash the Subpoena for the Hurwitz Deposition and to Extend the Discovery Cut Off Dates." (ECF No. 40.) On September 30, 2013, the Court issued an order advising Plaintiffs that their motion to continue the discovery cut-off should have been filed as a separate joint motion by the parties. (ECF No. 41.) The Court construed Plaintiffs' request for a continuance of the discovery cut-off as an ex parte application to continue the discovery cut-off. ( Id. ) Defendants were ordered to file any opposition to Plaintiffs' ex parte application no later than October 3, 2013. ( Id. ) On October 3, 2013, Defendants Truman Capital Advisors, LP, TruCap Grantor Trust 2010-2 and Marix Servicing, LLC (collectively "Truman") filed an opposition. (ECF No. 43.) On October 7, 2013, Defendants Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage (collectively "Wells Fargo") filed a joinder to the opposition. (ECF No. 44.)

Having considered the arguments of the parties and the applicable law, and for the reasons set forth herein, the Court DENIES Plaintiffs' request for an extension of the discovery cut-off.


Discovery has been open in this case since October 2012. On November 1, 2012, the Court issued a Scheduling Order setting, among other things, a June 28, 2013 deadline to complete all discovery. (ECF No. 29 at ¶ 5.) On April 30, 2013, in light of Wells Fargo's recent appearance in the action, the Court issued a Modified Scheduling Order in extending the discovery cut-off to October 4, 2013. (ECF No. 34 at ¶ 5.)

On September 27, 2013, Plaintiffs filed their request to continue the discovery cutoff until November 8, 2013. (ECF No. 40.) Plaintiffs contend good cause exists for the requested continuance because: (1) Defendants will suffer no prejudice because the requested continuance is very brief and the impact on the proceedings will be minimal; (2) there will be prejudice to Plaintiffs if they cannot complete their discovery; (3) Plaintiffs have acted in good faith; and (4) "extenuating circumstances" justify a brief continuance. The extenuating circumstances set forth by Plaintiffs are: (1) Plaintiff Gordon Dunfee (who is also representing Plaintiffs in this action) has been acting as a court-appointed receiver to operate the Santee Swap Meet for the past eighteen months which has required constant attention; (2) the receivership ended on September 6, 2013 which required Mr. Dunfee to prepare a Final Account and Report requiring a detailed financial and operational accounting of the last eighteen months; (3) Mr. Dunfee works full time and does not have any support staff; (4) Mr. Dunfee had to assist his elderly parents' relocation to an assisted living facility in September 2013; and (5) Plaintiffs' son was married on September 13, 2013 which required "enormous planning and time."

Truman's opposition to Plaintiffs' request contends that the discovery cut-off should not be extended because (1) Plaintiffs failed to properly meet and confer prior to filing their request; (2) Plaintiffs violated the undersigned Magistrate Judge's Civil Chambers Rules by not filing a joint motion for determination of discovery dispute; (3) Plaintiffs have failed to show good cause for a continuance; and (4) Truman will be prejudiced if the discovery cut-off is extended because the dispositive motion filing deadline is set for October 29, 2013, and Truman would be prejudiced by not having sufficient time to assess new discovery prior to filing an anticipated motion for summary judgment.

"The decision to modify a scheduling order is within the broad discretion of the district court." Mondares v. Kaiser Found. Hosp., No. 10-CV-2676-BTM(WVG), 2011 U.S. Dist. LEXIS 128413, at *3 (citing Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 607 (9th Cir. 1992)). Federal Rule of Civil Procedure 16(b)(4) provides that the Court's scheduling order "may be modified only for good cause and with the judge's consent." FED. R. CIV. P. 16(b)(4).[1] "Rule 16(b)'s good cause' standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Johnson, 975 F.2d at 609 (quoting FED. R. CIV. P. 16 advisory committee's notes (1983 amendment)) (citations omitted). "[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. (citations omitted). "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. Id. (citation omitted). "If that party was not diligent, the inquiry should end." Id. ; see also J.K.G. v. Cnty. of San Diego, No. 11cv0305 JLS(RBB), 2012 U.S. Dist. LEXIS 126195, at *3 (S.D. Cal. Sept. 5, 2012) ("The court should not amend a scheduling order that was issued unless the party requesting the modification can show good cause.") (citing FED. R. CIV. P. 16(b)(4)); Mondares, 2011 U.S. Dist. LEXIS 128413, at *4 ("If the party seeking modification was not diligent in his or her pretrial preparations, the inquiry should end there and the measure of relief sought from the Court should not be granted.") (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)). "The party seeking to continue or extend the deadlines bears the burden of proving good cause." Id. (citing Zivkovic, 302 F.3d at 1087; Johnson, 975 F.2d at 608).

In addressing the diligence requirement, a sister court has noted:

[T]o demonstrate diligence under Rule 16's "good cause" standard, the movant may be required to show the following: (1) that she was diligent in assisting the Court in creating a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that she was diligent in seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order.

Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted); see also Rich v. Shrader, No. 09-CV-0652-AJB (BGS), 2013 U.S. Dist. LEXIS 98184, at *5-6 (S.D. Cal. July 11, 2013) ("In order to demonstrate good cause, a party must demonstrate its diligence in taking discovery since the case management conference, its diligence in propounding or noticing the particular outstanding discovery, and explain why the parties could not exchange the particular discovery before the discovery cut-off date.").

"Allowing parties to disregard the instructions of a scheduling order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and cavalier. Rule 16 was drafted to prevent this situation." Sokol Holdings, Inc. v. BMB Munai, Inc., 05 cv 3749 (KMW)(DCF), 2009 U.S. Dist. LEXIS 100478, at *17 (S.D.N.Y. Oct. 28, 2009) (citation omitted) (internal quotation marks omitted).

For the reasons stated below, the Court finds that good cause does not exist to extend the discovery cut-off because Plaintiffs have failed to show they have been diligent in seeking discovery from Defendants.

First, Plaintiffs have not demonstrated any efforts to obtain discovery from Defendants until the very eve of discovery.[2] Despite having an entire year to complete discovery, Plaintiffs waited until September 17, 2013 (seventeen days before the discovery cut-off) to request available dates to conduct depositions of Truman employees. Further, Plaintiff waited until September 26, 2013 (eight days before the discovery cut-off) to serve any written discovery on Well Fargo or notice the depositions of Truman and Wells Fargo employees. Waiting until the final two weeks of the discovery period to commence discovery efforts cannot be viewed as having pursued discovery with diligence. Indeed, the facts presently before the Court bear striking similarity to the situation presented to the Honorable William V. Gallo in Mondares. Judge Gallo stated:

Except for the flurry of deposition notices served essentially on the eve of the fact discovery cut-off, Plaintiff has not engaged in any discovery to date. The deposition notices she served a mere two weeks before the discovery cut-off were her first attempts at any discovery at all. Essentially, although Plaintiff had the opportunity to conduct discovery [for over five months], she waited until the sixteenth day before the deadline was set to pass before she engaged in any discovery at all. And then, she bombarded Defendants with multiple depositions notices, two of which contained hundreds of PMK topics. This sort of delay is the antithesis of diligence, and, besides her own failure to do discovery, Plaintiff provides no reasonable reason why she could not meet the discovery deadline.

2011 U.S. Dist. LEXIS 128413, at *7.

Second, Plaintiffs have not explained why they did not go forward with depositions on any of the numerous dates and in the locations provided by Truman's counsel. Indeed, despite Plaintiffs' delay until the close of discovery to even request available dates, Truman's counsel quickly determined availability for multiple out-of-state depositions and provided those dates to Plaintiff. Notwithstanding the good faith cooperation of Truman's counsel, Plaintiffs selected unavailable dates for the depositions, and they noticed the depositions for San Diego despite being advised of the deponents' out-of-state residency.

Third, good cause is not established when a party demonstrates they were preoccupied attending to other matters. Here, Mr. Dunfee contends he was too busy to engage in discovery because he was working a full-time job as a court-appointed receiver throughout the discovery period, he spent "enormous time" planning his son's September 13, 2013 wedding, and he was compelled to help his elderly parents relocate to an assisted living facility last month. However, as Judge Gallo stated in Mondares, "a busy schedule do[es] nothing to advance Plaintiff's burden to show she was diligent in this case. Quite the contrary, these actually militate against a finding of diligence, as counsel essentially admitted she was not diligent in this case because she was busy litigating other cases." Id. at *6. Similarly, the fact that Mr. Dunfee was preoccupied with other work and personal matters is insufficient to establish diligence and good cause.

Furthermore, Mr. Dunfee's busy schedule[3] was known well in advance of the discovery cut-off. Indeed, Mr. Dunfee has been operating the Santee Swap Meet as a court-appointed receiver since before this action was removed to federal court in August 2012, and his work situation was known both at the time the Court issued its original Scheduling Order on November 1, 2013 and when the Court modified the Scheduling Order on April 30, 2013. At no time prior to the eve of the discovery cut-off did Plaintiffs advise the Court that they would be unable to comply with the established deadlines due to the receivership obligations. Similarly, at no time prior to the eve of the discovery cut-off did Plaintiffs advise the Court that their son's wedding plans would prevent them from conducting discovery in a timely manner, despite Plaintiffs' admission that the wedding required "enormous time and planning." See id. at *8 ("Despite knowing that the discovery cut-off was fast approaching and she had not conducted any discovery, Plaintiff made no attempt to seek an extension before it passed.").

Fourth, Plaintiffs' contention that they will be prejudiced if an extension is not granted is unavailing. "A party who fails to pursue discovery in the face of a court ordered cut-off cannot plead prejudice from his own inaction." Rosario v. Livaditis, 963 F.2d 1013, 1019 (7th Cir. 1992).

Finally, Plaintiffs failed to adequately meet and confer with counsel for Truman prior to seeking the instant request. The parties disagree whether Plaintiffs adequately met and conferred concerning Plaintiffs' request for a continuance of the discovery cut-off. Based on the record before the Court, it appears Mr. Dunfee met with counsel for Wells Fargo on September 27, 2013 to discuss, among other things, Plaintiffs' request regarding the discovery cut-off. While this meeting satisfied the meet and confer requirement set forth in Local Civil Rule 26.1 and Section IV(A) of the undersigned Magistrate Judge's Civil Chambers Rules[4] with respect to Wells Fargo, Plaintiffs' efforts were insufficient with respect to Truman. Although Plaintiffs contend they made a "reasonable effort" to meet and confer with Truman's counsel ( see ECF No. 40 at 10:7-8), the Court finds that sending an email to Truman's counsel on the morning of the planned meeting with Wells Fargo's counsel is insufficient. Not only did Plaintiffs provide little more than two hours notice to Truman's counsel, but Plaintiffs made no effort to schedule a mutually convenient time to meet and confer with Truman's counsel prior to filing their request for a discovery extension. See Brantley v. Borg-Warner Morse Tec, Inc., No. 12CV540-GPC(JMA), 2013 U.S. Dist. LEXIS 132275, at *13 (S.D. Cal. Sept. 13, 2013) ("Plaintiff's counsel should have instead, timely and with reasonable notice, convened an all party' conference during which Plaintiff's proposal could have been fully and openly discussed by all affected.").


For the reasons set forth above, the Court DENIES Plaintiffs' request to continue the discovery cut-off.


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