United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO EXTEND DISCOVERY CUT-OFF
[RE: ECF 75]
LABSON FREEMAN United States District Judge.
Federal Deposit Insurance Corporation (“FDIC”),
as Receiver for BankUnited, FSB, brings this suit, alleging
that Defendants breached a written Mortgage Broker Agreement
that set forth terms by which BankUnited would purchase or
fund loans and Defendant Bayone Real Estate Investment
Corporation (“Bayone”) would originate, sell, or
assign loans. Compl. ¶ 9, ECF 1. According to FDIC, the
loan documents for three loans submitted by Bayone to
BankUnited-including a loan to borrower Lydia Fangon (the
“Fangon Loan”)-contained inaccuracies,
misrepresentations, and fraudulent statements. Id.
¶ 39. Defendants have denied liability. Answer, ECF 18.
Defendants Bayone and Jinsong Guo have also filed
counterclaims against FDIC and a third-party complaint,
alleging that BankUnited approved loan applications submitted
by third-parties without their consent and without conducting
the required review and verification. Am. Countercl. ¶
7-9, ECF 25; Am. Third-party Compl. ¶¶ 14-17, ECF
the Court is FDIC's motion to enlarge time for discovery
so that it can depose third parties Yung-Ming Chou and Sarah
C. Huang. ECF 75. This motion is unopposed by any party. For
reasons set forth below, the Court GRANTS the motion.
closed on March 6, 2017, except for the deposition of Bayone,
which took place on March 9, 2017. ECF 60; Gibbs Decl. ¶
8-13. At Bayone's deposition, FDIC first learned that
Bayone had been sued in 2009 by borrower Lydia Fangon,
regarding the Fangon Loan at issue in this matter.
Id. ¶ 14. Bayone's 30(b)(6) witness,
Defendant Jinsong Guo, was unable to testify regarding the
allegations or positions Bayone took in this previously
undisclosed Fangon action and stated that all related
documents would be in the possession of Bayone's former
attorney Yung-Ming Chou. Id. ¶¶ 15-17.
Sarah C. Huang, FDIC was unable to take her deposition prior
to the discovery cutoff because difficulties in scheduling
the deposition and personally serving Ms. Huang. Id.
¶¶ 25-32. Defendants allege that Sarah C. Huang,
the appointed manager of Bayone's Cupertino office,
submitted the loans at issue without Defendants'
knowledge or consent. Mot. 5. Defendants further allege Ms.
Huang forged Ms. Guo's signature. Id. This Court
recently granted FDIC's request to serve Ms. Huang with a
deposition subpoena via certified mail and with a copy of the
subpoena served by certified mail on Ms. Huang's
attorney, Kent Tierney. ECF 66.
deadlines “may be modified only for good cause and with
the judge's consent. Fed.R.Civ.P. 16(b)(4). In
determining whether there is good cause to re-open discovery,
courts consider the following factors:
1) whether trial is imminent, 2) whether the request is
opposed, 3) whether the non-moving party would be prejudiced,
4) whether the moving party was diligent in obtaining
discovery within the guidelines established by the court, 5)
the foreseeability of the need for additional discovery in
light of the time allowed for discovery by the district
court, and 6) the likelihood that discovery will lead to
U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d
1512, 1526 (9th Cir. 1995) vacated on other grounds,
520 U.S. 939 (1997) (citing Smith v. United States,
834 F.2d 166, 169 (10th Cir. 1987)).
16(b)'s ‘good cause' standard primarily
concerns the diligence of the party seeking the
amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992); see
also Fed. R. Civ. P. 16 Advisory Committee's Notes
(1983 amendment) (noting district court may modify pretrial
schedule “if it cannot reasonably be met despite the
diligence of the party seeking the extension.”).
“If [the party seeking the modification] was not
diligent, the inquiry should end there.” See
Johnson, 975 F.2d at 609. “The district court is
given broad discretion in supervising the pretrial phase of
litigation, and its decisions regarding the preclusive effect
of a pretrial order . . . will not be disturbed unless they
evidence a clear abuse of discretion.” Id. at
607 (internal quotation marks and citation omitted).
Court finds that there is good cause to extend discovery
specifically for the depositions of Yung-Ming Chou and Sarah
C. Huang. Given that trial is not imminent and about five
months away, extending the discovery cut-off for 30 days only
for these two depositions would not affect the trial
schedule. The extension of the cut-off is also specific for
the purpose of these two depositions and would not open up
discovery of other issues. In addition, FDIC's motion is
unopposed by Defendants and there is no showing of prejudice
to Defendants by a significant delay of the proceedings or
loss of evidence.
depositions sought by FDIC are also relevant and are delayed
despite FDIC's diligence. With respect to Yung-Ming Chou,
Defendant Bayone did not reveal the Fangon action until
Bayone's 30(b)(6) deposition was taken on March 9, 2017.
The Fangon action is relevant because it relates to one of
the loans at issue in this case and the parties'
statements or admissions in that action regarding
Bayone's role in the origination the Fangon Loan would be
important. Although several of FDIC's requests for
production would have required production of documents
relating to the Fangon action, Bayone ...