Arredondo v. Delano Farms Co.

          ORDER DENYING MOTION FOR FURTHER MODIFICATION OF SCHEDULING ORDER (DOC. 428)

          Michael J. Seng UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On June 17, 2009, Plaintiffs commenced this class action against Defendants on behalf of themselves and others similarly situated. History relevant to this motion includes the fact that on April 19, 2014, the parties were granted the right to proceed with merits discovery with the specific goal of seeking representative, statistical evidence to assist with the presentation of claims at trial. In late 2015, Plaintiffs attempt at a mail survey failed, and they moved for, and were granted, a modification of the scheduling order to attempt a second survey, this one to be conducted in person, door-to-door. For reasons discussed below, that survey also failed. Accordingly, Plaintiffs filed the instant motion for a second modification to the scheduling order to enable a third survey attempt. Defendants contend that Plaintiffs have been neither reasonable nor diligent in their efforts and therefore are not entitled to modification of the scheduling order.

         More specifically, Plaintiffs filed the instant motion to modify the scheduling order on May 26, 2016. (ECF No. 428.) The motion asks the court to reopen discovery and allow Plaintiffs until September 2, 2016 to complete a new survey and until September 23, 2016, to disclose expert reports.

         An opposition to the motion was filed by Defendant Delano Farms Company, and a separate opposition was filed by Defendants T&R Bangi Agricultural Services, Inc. and Cal-Pacific Farm Management, L.P. on June 10, 2016. (Opp’ns, ECF Nos. 433, 436.) Plaintiffs filed a reply on June 24, 2016. (Reply, ECF No. 443.) The parties appeared before the Court for oral argument on July 1, 2016. The matter was submitted. It stands ready for adjudication.

         II. Legal Standard

         A. Good Cause Standard

         The Court has broad discretion in supervising the pretrial phase of litigation. C.F. v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Generally, the Court is required to enter a pretrial scheduling order within 120 days of the filing of the complaint. Fed.R.Civ.P. 16(b). The scheduling order "controls the subsequent course of the action" unless modified by the Court. Fed.R.Civ.P. 16(e). Orders entered before the final pretrial conference may be modified upon a showing of "good cause." Fed.R.Civ.P. 16(b); see also Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992).

         Rule 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000); Johnson, 975 F.2d at 609. The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment); Johnson, 975 F.2d at 609. The Ninth Circuit has not described the diligence standard in detail. However, the determination of "good cause" “focuses on the reasonable diligence of the moving party." Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007) (citing Johnson, 975 F.2d 604, 609 (9th Cir. 1992)).

         Additionally, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Johnson, 975 F.2d at 609. 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. (citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)). If the moving party was not diligent, the Court's inquiry should end. Id.

         B. Agency

         This inquiry touches on the issue of whether the actions of Plaintiffs’ consultants (including expert witness and survey consultants) and attorneys should be imputed to Plaintiff when determining if good cause exists for modification of the scheduling order.

         The rules governing the attorney-client relation are “founded on the rules governing the relation of principal and agent.” Moving Picture Etc. Union v. Glasgow Theaters, Inc., 6 Cal.App.3d 395, 403-404 (1970) (quoting Fidelity & Casualty Co. v. Abraham, 70 Cal.App. 2d 776, 783 (1945)). “[N]otwithstanding the lack of express or apparent authority in the attorney, his act is binding on the client if the latter ratifies it or accepts the benefits of the attorney's acts.” Id. Accordingly, it is without question that the acts of an attorney are binding on the client and are relevant to a diligence inquiry. See e.g., Haeger v. Goodyear Tire & Rubber Co., 793 F.3d 1122, 1135 (9th Cir. 2015), (A client "is deemed bound by the acts of [its lawyers] and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'") (quoting Link v. Wabash R. Co., 370 U.S. 626, 634 (1962).

         There is little law regarding imputation to the client of actions of consultants hired and supervised by counsel. There is, however, no reason to think such relationships merit deviation from common law notions of agency and respondeat superior. See e.g., Restatement 3d, Agency, § 2.01 (Actual Authority: An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal's manifestations to the agent, that the principal wishes the agent so to act.); § 2.04 Respondeat Superior: An employer is subject to liability for torts committed by employees while acting within the scope of their employment.). Indeed, allowing a client to insulate himself from actions of his attorney agent, or the attorney’s agent, just because the attorney worked through a sub-agent consultant to accomplish tasks for the benefit of the client would defeat the well-established principles of imputed agency liability.

         Accordingly, the Court will consider the actions, and inaction, of Plaintiffs’ counsel and expert witness/consultant and those hired by them in determining whether Plaintiffs have shown diligence.

         III. Relevant Facts

         A. Events Precipitating the Most Recent Failed Survey

         On April 19, 2014, the Court allowed the parties to proceed with merits discovery as they saw fit, and ordered them to report the status of their efforts on or before March 12, 2015. (ECF No. 330.) Plaintiffs were early put on notice that any proposed survey evidence would be closely scrutinized for admissibility and reliability. (See Decl. of Mario Martinez, Ex. A, ECF No. 443-2 at 1-2. (Plaintiffs’ counsel advising Dr. Roberts to anticipate all the ways he will defend the survey from attacks as to the scientific protocol used and its validity.))

         Upon the Parties’ request, the Court extended the deadline for the joint status report from March 12, 2015, to June 12, 2015. (ECF No. 365.) On June 12, 2015, the parties filed a joint status report. (ECF No. 372.) Defendants notified the Court that their efforts to conduct a pilot study of a random cross section of the class members were frustrated by the low response rate -- only 23% of the selected class members were willing to provide testimony. (Id.) Defendants determined that they could not guarantee that the results of such a small sampling would be representative of the whole, and made the decision to abandon that effort. ( Id. at 2-9.) Despite the fact the discovery period had been open for over a year, Plaintiffs had yet to conduct their mail survey, and requested the Court allow them until September 25, 2015 to do so. (Id. at 13.) The Court granted Plaintiffs’ request, and extended the deadline for the completion of Plaintiffs’ mail survey until September 25, 2015. (ECF Nos. 373, 377.)

         Plaintiffs attempted a mail survey in late summer of 2015, nearly a year and a half after the discovery period had opened. The response rate to the survey was unexpectedly low (3%, i.e., three completed responses per one hundred surveys). (ECF No. 393-4.) Defendants declined Plaintiff’s invitation to stipulate to extend the survey deadline, and so Plaintiffs moved to modify the scheduling order to provide additional time so they could conduct the survey in a different manner.

         Specifically, on October 15, 2015, Plaintiffs requested a 120 day extension of the deadline to implement a new survey based on “tightly controlled direct interviews.” Upon a showing of good cause, the Court granted the motion on January 14, 2016, and, on January 28, 2016, issued an amended scheduling order. (ECF Nos. 405, 407.) The amended scheduling order gave Plaintiffs until January 23, 2016, an additional 120 days from the previous, September 25, 2015, deadline, to complete the new survey. (Id.)

         The Court granted the motion to modify the scheduling order based on the representation from Plaintiffs’ expert, Dr. William Roberts, that the original questionnaire process, though scheduled for implementation during the 2015 peak harvest season to ensure maximum response, had a response rate of only three percent; Roberts had projected a response rate close to 30 percent based on his prior experiences. (Roberts Decl., ECF No. 393-2 at ¶ 12-13.) Roberts advised counsel that more representative results could be obtained through a “tightly controlled, direct interview process”. (Roberts Decl., ECF No. 393-2 at ¶ 14.) He expected the direct interview process to take eight to ten weeks, and requested an additional sixty days thereafter to compile and analyze the data and create a final report. (Id. at ¶ 15-16.)

         The Court found that Plaintiffs’ expert had provided sufficient justification for delaying the mail survey until peak harvest season and that Plaintiffs were diligent in initiating their request to modify the scheduling order promptly upon learning of the problems with the mailed survey results. Accordingly, the Court granted the motion to modify the scheduling order.

         While Plaintiffs’ counsel was seeking this modification of the scheduling order, Plaintiffs’ expert was securing survey administrators to implement the door-to-door survey. He discussed the project with California Survey Research Services (“CSRS”). (Decl. of Anna Walther, Ex. J., ECF No. 429-2 at 266-268.) On September 22, 2015, CSRS in turn contacted Bakersfield Market Research (“BMR”) about actually conducting the door-to-door interviews. (Depo. of Margarita Rodriguez at 221:10-16.).

         On October 1, 2015, CSRS provided Roberts a bid proposal for the project. It called for CSRS to coordinate door-to-door, face-to-face, interviews of 300 or 400 absent class members, with the actual interviews to be done by a “partnering firm.” (Walter Decl., Ex. J., ECF No. 429-2 at 266-268.) CSRS stated that it would be responsible for “overseeing the project management, Spanish language interviewing, training and quality control”. (Id.) Additionally, CSRS provided an option for validating 20% of the interviews by follow-up phone calls to verify responses reported by the survey takers. (Id.) If such a validation raised questions, CSRS was to validate additional interviews and replace those that were problematic. (Id.) The CSRS employees principally responsible for managing the Delano Farms Survey were Margarita Rodriguez, vice president of operations for CSRS, and Al Noiwangmuang, vice president for online data collection processing for CSRS. Both Rodriguez and Roberts confirmed that the proposal set forth the terms under which CSRS agreed to participate in the Delano Farms study. (Rodriguez Depo., 231:8-24; Roberts Depo., 156:15-18.)

         In providing the bid on October 1, 2016, CSRS advised Roberts that it would need six to eight weeks to complete 300 interviews, and an additional two weeks if 400 interviews were requested. (Decl. of Greg Durbin, Ex. L, ECF No. 434-12.)

         Roberts did not authorize CSRS to proceed with the survey until November 2, 2015. (Maricruz Estrada Depo. 180:1-181:10; Decl. Greg Durbin, Ex. J.) On November 10, 2015, Rodriguez traveled to Bakersfield, met with BMR personnel, provided them iPads with which to administer the survey and provided training on the survey software. (Rodriguez Depo., 108:16-23, 240:3-7; Depo Ex. 49; Durbin, Ex. N.)) The iPads containing the survey software were wirelessly linked to a server at CSRS. (Rodriguez Depo., 243:13-21; Noiwangmuang Depo.207:15-209:14.) When a survey was completed, the information on the iPad was uploaded to a CSRS server. (Id.) The data received from the iPads included: the responses to the survey questions; the respondent’s signature; the respondent’s phone number, if provided; the GPS coordinates where the survey was initiated; the start time and length of the interview; and the language used for the survey. (Noiwangmuang Depo. 29:8-18, 109:15-25, 111:17-21, 225:7-226:24; Durbin Decl., Exs. D, M.)

         B. Administration of and Failure to Validate Survey

         From November 13, 2016 until November 28, 2016 (notwithstanding Thanksgiving Day), BMR administered the survey. (See Walther Decl., Ex AA.) During this time, employees from BMR were assumed to be traveling to residences of named absent class members and obtaining their answers to the survey questions. Most of the addresses were located in Bakersfield and smaller surrounding communities, including Delano, MacFarland, Wasco, Shafter, Lamont, and Arvin. (See Walther Decl., Ex YY.) According to BMR, its employees attempted to contact 467 class members, and were able actually to complete 305 surveys, during this roughly two week period. (Decl. Fink, ¶ 13; Walther Decl., Exs. N, W.)

         CSRS was receiving the results of these surveys as they were being administered. It checked with BMR from time to time to compare computer and BMR’s manual records as to the number of completed interviews. (Rodriguez Depo., 282:16-283:8) CSRS and Roberts communicated on November 17 and 18, 2015, while BMR was conducting the survey, regarding the script to be used for telephonic validation. ...