United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO ENLARGE TIME
AND COMPEL DISCOVERY RESPONSE [ECF NO. 62]
Barbara L. Major United States Magistrate Judge
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.
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.
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 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.
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. Id. at 6-7; see also
Stayton Decl. at 3. Defendant McAdam also objected to
Plaintiff's Request for Production of Documents No.
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.
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.
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.
STANDARD - MOTION TO ENLARGE TIME
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.
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).
TO ENLARGE TIME
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. ...