United States District Court, E.D. California
[Copyrighted Material Omitted]
For Andrea Boarman, Plaintiff: Manolo H. Olaso, LEAD ATTORNEY, Johnny L. Griffin, III, Law Offices of Johnny L. Griffin III, Sacramento, CA.
For County of Sacramento, City of Rancho Cordova, Barry, Officer, Badge # 828, Defendants: Robert L. Chalfant, Wendy M. Motooka, LEAD ATTORNEYS, Cregger & Chalfant LLP, Sacramento, CA.
For Manuel Konstantinidis, Defendant: Robert L. Chalfant, LEAD ATTORNEY, Cregger & Chalfant LLP, Sacramento, CA.
Kimberly J. Mueller, UNITED STATES DISTRICT JUDGE.
On August 22, 2014, the court heard argument on the motion for summary judgment filed by defendants County of Sacramento, City of Rancho Cordova, Officer Sean Barry, and Officer Manuel Konstantinidis (collectively defendants), as well as plaintiff's motion to modify the scheduling order. Robert Chalfant appeared for defendants; Manolo Olaso appeared for plaintiff Andrea Boarman. After considering the parties' arguments, the court DENIES the motion to modify the scheduling order and GRANTS IN PART and DENIES IN PART the motion for summary judgment.
On October 26, 2011, plaintiff filed a complaint alleging generally that defendants had violated her state and federal rights in connection with an encounter at a CVS Store in Rancho Cordova on January 16, 2011. ECF No. 1. Defendants filed a motion to dismiss, which the court granted on September 27, 2012. ECF Nos. 6, 14.
Plaintiff filed her First Amended Complaint on October 26, 2012. ECF No. 15. Defendants again moved to dismiss, ECF No. 16, and on March 29, 2013, the court granted the motion in part and denied it in part. ECF No. 22.
On April 18, 2013, plaintiff filed a Second Amended Complaint. ECF No. 24. Defendants moved to dismiss plaintiff's claim of a violation of California Civil Code § 51.7. ECF No. 25. The court granted the motion on July 26, 2013. ECF No. 31.
Defendants answered on August 9, 2013. ECF No. 32.
The court held a pretrial scheduling conference on October 17, 2013, and on October 31, 2013, issued a pretrial scheduling order. ECF Nos. 34, 35. That order set March 24, 2014 as the discovery cut-off date, October 30, 2014 as the final pretrial conference date, and January 5, 2015 as the trial date. ECF No. 35 ¶ ¶ IV, VII, IX. The order memorialized the parties' waiver of conflict and agreement to the assigned magistrate judge as the settlement judge for a settlement conference in December 2014. Id. ¶ X.
On February 20, 2014, the court approved the parties' stipulation to extend the discovery cut-off date to July 4, 2014. ECF No. 38.
On June 5, 2014, the court approved the parties' stipulation to substitute Manuel Konstantinidis for Doe defendant 1 in the Second Amended Complaint. ECF No. 43.
On June 9, 2014, plaintiff filed the Third Amended Complaint (TAC), the operative complaint, which raises three civil rights claims and two state law claims: (1) excessive force; (2) false arrest; (3) municipal liability; (4) common law battery; and (5) interference with civil rights, Cal. Civ. Code § 52.1. ECF No. 47. Defendants answered the complaint on June 19, 2014. ECF No. 49.
Plaintiff filed the motion to modify the scheduling order on July 21, 2014. ECF No. 52. Defendants have opposed the motion and plaintiffs have filed a reply. ECF Nos. 58, 60.
Defendants filed a motion for summary judgment on July 25, 2014. Plaintiff has opposed the motion and defendants have filed a reply.
On July 25, 2014, the court approved the parties' stipulation to allow plaintiff to depose the defense expert after the expert discovery cut-off date. ECF No. 56.
II. MOTION TO MODIFY THE SCHEDULING ORDER
Plaintiff seeks to extend the dates for discovery cut-off, final pretrial conference, and trial. She supports the request with the declaration of counsel Manolo Olaso, who avers that after the settlement conference on June 14, 2014, defendants unilaterally scheduled plaintiff's deposition for June 17. Decl. of Manolo Olaso, ECF No. 52-2 ¶ 7. Olaso told defense counsel Robert Chalfant that plaintiff was not available on that date and agreed to reschedule the deposition for after the discovery cut-off. Olaso asked Chalfant for dates to depose the two individual officer defendants, but Chalfant said the discovery cut-off prevented these depositions. Id. ¶ 9. Olaso avers plaintiff postponed discovery " to devote resources to position the case for early resolution," believing the case would proceed to early settlement. Id. ¶ 11. Neither party had taken any depositions before the settlement conference on June 14. Id. ¶ 12. Olaso says he wants additional time to depose the individual officers and to complete discovery with respect to the training and supervision regarding Taser use. Id. ¶ 14. He also points out that
Konstantinidis was not named until the Third Amended Complaint was filed on June 9, 2014. Id. ¶ 13.
Defendants have opposed and provided the declaration of defense counsel Chalfant. Chalfant avers that as part of his initial disclosures made on November 18, 2013, he identified Officers Barry and Konstantinidis as having discoverable information and provided reports written by both officers, including information about Konstantinidis's use of a taser. Decl. of Robert Chalfant, ECF No. 58-1 ¶ 12 & Ex. D, ECF No. 58-1 at 26-28. However, since filing this action, plaintiff has served no written discovery nor taken any depositions. Id. ¶ 18.
In February 2014, Olaso made a settlement demand; in March, Chalfant rejected it, but made a counter-offer. Id. ¶ ¶ 13-14. The parties decided to seek a settlement conference, which was eventually set for June 13, 2014. Plaintiff's initial demand at the conference was over four times higher than the previous demand. Id.
Federal Rule of Civil Procedure 16(b)(4) states that " [a] schedule may be modified only for good cause and with the judge's consent." " 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 v. Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 1992) (quoting Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment)). " 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. [citation omitted] If the party was not diligent, the inquiry should end." Id. Moreover, " '[a] party who fails to pursue discovery in the face of a court ordered cut-off cannot plead prejudice from his own inaction.'" Dunfee v. Truman Capital Advisors, LP, Civil No. 12-cv-1925-BEN (DHB), 2013 WL 5603258, at *4 (S.D. Cal. Oct. 11, 2013) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1019 (7th Cir. 1992).
It is true that plaintiff did not seek to bring Konstantinidis into the action until June of this year, but defendants had disclosed Konstantinidis's name and provided his report with their initial disclosures on November 8, 2013. In reply, plaintiff concedes she became aware of his identity when she received the initial disclosures. ECF No. 58-1 at 26-27; Reply, ECF No. 60 at 2. Plaintiff could have discovered his connection to the incident and scheduled his deposition earlier.
Plaintiff says she was postponing discovery in hopes of an early settlement, but the pretrial scheduling order suggests the parties had not contemplated a settlement conference until shortly before trial. ECF No. 35 ¶ X. Even assuming plaintiff was delaying discovery until settlement overtures had been exhausted, she does not explain why she undertook no discovery after defendants rejected her offer in March 2014. Moreover, not only did plaintiff fail to pursue discovery until June, shortly before the extended cut-off date, she did not seek relief from the cut-off before it expired. See Cornelius v. Deluca, No. 1:10-CV-027 BLW, 2011 WL 1114315, at *3 (D. Idaho Mar. 25, 2011) (" At the very least, Plaintiffs could have asked the Court to extend the discovery deadline before it expired. Instead, Plaintiffs did nothing." ). She has not been diligent. Her request is denied.
III. MOTION FOR SUMMARY JUDGMENT
Plaintiff raises claims for false arrest, common law battery, interference with civil rights, and excessive force in the Third Amended Complaint. The excessive force claim raises both the officers' use of handcuffs and of a taser during the course of the encounter. In this motion, defendants do not seek summary judgment on that portion of the excessive force claim stemming from the taser use nor the common law battery claim. Accordingly, ...