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Lanier v. United States

United States District Court, S.D. California

March 10, 2017

TOMMY LANIER, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.


          Barbara L. Major United States Magistrate Judge

         Currently before the Court is Plaintiff's February 7, 2017 Motion to Enlarge Time and Compel Discovery [ECF No. 62-1 ("Mot.")], Defendants' February 10, 2017 opposition to the motion [ECF No. 64 ("Oppo.")], and Plaintiff's February 13, 2017 reply [ECF No. 65 ("Reply")]. For the reasons set forth below, Plaintiff's motion is DENIED.


         Plaintiff is suing Defendants for defamation, unlawful retaliation under the California Fair Employment Housing Act (“FEHA”) and under Title VIII 42 U.S.C. sections 2000(e)-3(a), and violations of the Federal Tort Claims Act. ECF No. 9, Plaintiff's First Amended Complaint (“FAC”). Plaintiff, who was an employee of the City of Chula Vista under the federal grant High Intensity Drug Trafficking Area (“HIDTA”) program and Director of the National Marijuana Initiative (“NMI”) alleges that he was forced to resign from his position after complaining to Defendant McAdam, also an employee of the City of Chula Vista and Director of HIDTA, about Mr. Ralph Partridge, the Deputy Director of HIDTA, for “creating an offensive and hostile work environment toward one or more female employees who were working under [P]laintiff.” FAC at 4-6. Plaintiff further alleges that Defendants McAdam and City of Chula Vista falsely accused him of lying about travel expenses in order to justify his forced resignation. Id. at 7-14.

         On March 21, 2016, the Court held a telephonic Case Management Conference (“CMC”). ECF No. 40-41. Following the CMC, the Court issued a Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings. ECF No. 41. In that Order, the Court set a deadline of November 18, 2016 for the close of all fact discovery[1] and included language requiring that any motions to compel discovery be filed within thirty (30) days of the service of an objection, answer, or response which becomes the subject of dispute. Id. at 2-3. Five months after the Court issued its scheduling order, Plaintiff took his first deposition. Oppo. at 6; see also ECF No. 64-1, Declaration of Laurie N. Stayton, ESQ., In Support of Defendant Kean McAdam's Opposition to Plaintiff Lanier's Motion to Enlarge Time and Compel Discovery Response (“Stayton Decl.”) at 3.

         Plaintiff noticed the deposition of Defendant McAdam on September 14, 2016 and on October 5, 2016, Defendant McAdam served written objections to the scope of the deposition questioning and production of documents.[2] Id. at 6-7; see also Stayton Decl. at 3. Defendant McAdam also objected to Plaintiff's Request for Production of Documents No. 7.[3] Id. at 7; see also Stayton Decl. at 3. Plaintiff did not respond to the written objections. Stayton Decl. at 4. On October 11, 2016, Defendant McAdam appeared for his deposition and reiterated his objections to any questions or the production of documents relating to the October 16, 2013 closed session meeting. Id. at 5. The parties met and conferred regarding the issue on the record during the deposition, at which point Defendant McAdam testified that there are one to three emails in existence that are responsive to Request No. 7. Id. at Exh. D (Deposition Transcript of Kean McAdam); see also Oppo. at 8-9. Plaintiff continued with additional questions, some of which were answered and some of which were not due to claims of privilege. Id. The deposition ended when Plaintiff's counsel, Mr. M. Richardson Lynn, Jr., decided to terminate, but not conclude the deposition in light of the privilege issues surrounding the October 16, 2013 closed session meeting. Id.; see also Oppo. at 9. At the time, Mr. Lynn noted that he would have “to file a discovery motion, and the Court will rule” if the parties were unable to resolve the matter. Id.

         The parties met and conferred again by telephone on October 19, 2016, but were unable to resolve the dispute. Oppo. at 11. Nearly three and a half months later (104 days), on January 31, 2017, Mr. Lynn, Jr., counsel for Defendant City of Chula Vista, Mr. Phillip L. Kossy, and counsel for Defendant Kean McAdam, Ms. Laurie N. Stayton, jointly contacted the Court regarding a discovery dispute. In regard to the dispute, the Court issued a briefing schedule. ECF No. 59. In accordance with that schedule, the parties timely filed their paperwork. See Mot.; see also Oppo. and Reply.


         Plaintiff seeks an order from the Court granting relief from the parties' thirty (30) day deadline to bring a motion to compel, and compelling Defendant McAdam to disclose the information presented and statements made by Defendant McAdam at the October 16, 2013 HIDTA Executive Board closed session meeting. Mot. at 7.


         Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only “for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4); see also ECF No. 41 at 7 (stating that the dates set forth in the CMC Order regulating discovery and other pretrial proceedings “will not be modified except for good cause shown”). The Rule 16 good cause standard focuses on the “reasonable diligence” of the moving party. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000) (stating Rule 16(b) scheduling order may be modified for “good cause” based primarily on diligence of moving party). Essentially, “the focus of the inquiry is upon the moving party's reasons for seeking modification.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). However, a court also may consider the “existence or degree of prejudice to the party opposing the modification . . . .” Id.

         In addition to being required to establish good cause, a party moving to extend time after a scheduling order deadline has passed must demonstrate excusable neglect. Mireles v. Paragon Sys., Inc., 2014 WL 575713, at *2 (S.D. Cal. Feb. 11, 2014) (citing Weil v. Carecore Nat'l, LLC, 2011 WL 1938196, at *2 (D. Colo. May 19, 2011)); see also Fed.R.Civ.P. 6(b)(1)(B) (stating “the court may, for good cause, extend the time on motion made after the time has expired if the party failed to act because of excusable neglect.”). The following factors are considered in determining whether there has been excusable neglect: the danger of prejudice to the non-moving party; the length of the delay and its potential impact on judicial proceedings; the reason for the delay, including whether it was within the reasonable control of the movant; and whether the moving party's conduct was in good faith. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993).


         In order to compel Defendant McAdam's responses, Plaintiff seeks relief under Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 6(b)(1)(B) to enlarge the time for him to compel further document production and deposition testimony. Id. at 3. Plaintiff recognizes that there is an argument that under the Court's March 21, 2016, Scheduling Order [see ECF No. ...

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