United States District Court, S.D. California
ORDER (1) GRANTING DEFENDANTS' EX PARTE APPLICATION TO MODIFY THE SCHEDULING ORDER [ECF NO. 203]; AND (2) GRANTING DEFENDANTS' MOTION TO COMPEL PLAINTIFF'S DEPOSITION [ECF NO. 203 ATTACH. #1]
RUBEN B. BROOKS, Magistrate Judge.
On December 4, 2013, Defendants County of San Diego, James Romo, Peter Myers, and Joseph Cargel filed an Ex Parte Motion to Modify The Scheduling Order by Extending the Deadline for Completing Discovery [ECF No. 203]. In their Ex Parte Motion to Modify, Defendants sought a thirty-day extension of the November 4, 2013 discovery cutoff date so a motion to compel the Plaintiff's deposition could be filed. (Defs.' Ex Parte Mot. Modify 2-3, ECF No. 203.) The motion to compel is attached to the Defendants' Ex Parte Motion. (Id. Attach. #1 Mem. P. & A. 2-8.) Plaintiff Paul Hupp filed an opposition on December 11, 2013. (See Pl. Hupp's Opp'n Br. 1, ECF No. 225.) The Defendants filed their reply brief on February 10, 2014 [ECF No. 230].
The Court has determined that Defendants' Ex Parte Motion to Modify and the accompanying Motion to Compel Plaintiff Paul Hupp's Deposition are suitable for resolution on the papers. S.D. Cal. Civ. R. 7.1(d)(1).
The Defendants acknowledge that the discovery cutoff for this case was November 4, 2013. (Defs.' Ex Parte Mot. Modify 2, ECF No. 203.) "On October 15, 2013, Defendants noticed Plaintiff's deposition to take place on October 25, 2013 at 9:00 a.m." (Id.) At the request of the codefendant City of San Diego, the deposition was renoticed for Friday, November 1, 2013, at 9:00 a.m. (Id.) "On October 26, 2013, the Saturday before Plaintiff's deposition was scheduled to take place, Plaintiff notified Counsel, via email, that he would not be submitting to the deposition." (Id.) "Plaintiff stated that the terms of his probation did not allow him to leave Riverside County." (Id.) Defense counsel offered to take the deposition in Riverside County or contact Plaintiff's probation officer to explain the circumstances for traveling for the deposition. (See id.) Hupp would not agree to either. (Id.)
Defense counsel planned to file a motion to compel Plaintiff's deposition on December 2, 2013, thirty days from the scheduled deposition date for which Plaintiff failed to appear. (Id. at 3.) Because the discovery cutoff had passed, Defendants filed the pending application.
Plaintiff opposes the Ex Parte Application to Modify. Hupp argues that Defendants "fail[ed] to timely seek a motion to compel." (Pl. Hupp's Opp'n Br. 4, ECF No. 225.) Plaintiff asserts that an extension of time should not be granted.
To determine whether "good cause" exists to extend time courts typically review, but are not limited to, such factors as 1) scheduling issues; 2) past, present and current time demands and commitments of the parties; 3) a party's assurances that an extension of time will not unduly delay the case; and last 4) the parties' good faith efforts to "meet and confer" regarding the discovery issues in a timely manner. DEFENDANTS fail to meet any of the four (4) factors. In fact[, ] DEFENDANTS have not even tried to address these or any other factors on why they should be entitled to extend time.
(Id.) He is largely correct. In essence, Defendants outline the Plaintiff's unilateral refusal to appear for his deposition, and Defendants maintain that they believed a motion to compel the taking of Plaintiff's deposition could be filed within thirty days of Hupp's failure to appear for the deposition on November 1, 2013, although the discovery cutoff date was November 4, 2013. (Defs.' Ex Parte Appl. Modify Attach. #2 Decl. Welsh 3, ECF No. 203.)
There are additional relevant facts. "[C]ourts consider a number of factors in determining whether to consider the merits of a motion to compel filed after expiration of the controlling deadline." 3 James Wm. Moore et al., Moore's Federal Practice § 16.13[c], at 16-57 (3d. ed. 2013). The following are relevant:
The length of time since the expiration of the deadline;
The length of time that the moving party has known about the discovery;
Whether the discovery deadline has been extended;
The explanation for the tardiness or delay;
Whether dispositive motions have been ...