United States District Court, E.D. California
ORDER DENYING MOTION FOR FURTHER MODIFICATION OF
SCHEDULING ORDER (DOC. 428)
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
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
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.
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.
Good Cause Standard
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).
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)).
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.
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.
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).
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
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
Events Precipitating the Most Recent Failed Survey
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.))
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.)
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.
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.)
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.)
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.
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
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.)
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.
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.)
Administration of and Failure to Validate Survey
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,
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. ...