United States District Court, S.D. California
RICK FRIERI, on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiff,
SYSCO CORPORATION; SYSCO SAN DIEGO, INC.; AND DOES 1-100, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S EX PARTE APPLICATION TO EXTEND DEADLINES TO
COMPLETE DEPOSITIONS AND MOTION FOR CLASS CERTIFICATION
FILING (ECF NO. 46)
NITA L. STORMES UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's ex parte application to
extend the deadline to complete depositions and the deadline
for filing Plaintiff's motion for class certification.
ECF No. 46. Plaintiff argues that a sixty day extension of
deadlines is warranted and supported by good cause based
largely on two factors (1) delayed email production and (2)
instructions not to answer regarding certain topics at a
deposition of the 30(b)(6) representative for Sysco San
Diego. Id. at 7-9. Defendant opposes the
application. ECF No. 47. Defendants argue a sixty day
extension as disproportionate and unwarranted based upon (1)
the recent production of the remaining emails and (2)
Plaintiff's lack of diligence in the pursuit of
discovery. Id. As discussed, the Court will
GRANT IN PART and DENY IN
PART Plaintiff's application.
Relevant Procedural Background
the number of prior requests for extension and discovery
disputes raised by the parties, a brief review of the
procedural background of this case is appropriate. This case
was originally filed in Superior Court and removed on June 9,
2016. ECF No. 1. Following a motion to dismiss that was
granted in part and denied in part, the operative amended
complaint was filed on December 21, 2016. ECF No. 15.
Following an answer and Early Neutral Evaluation, on February
2, 2017 the Court issued a Scheduling Order setting the
original close of class discovery for July 12, 2017,
providing five months for class discovery; and a deadline for
Plaintiff's to file their motion for class certification
for August 7, 2017, six months out. ECF No. 20.
the close of initial fact discovery period, on June 28, 2017,
Plaintiff requested a continuance of the discovery and motion
filing deadlines. ECF No. 25. The Court granted an extension
of 90 days, to October 13 and November 10, 2017, based in
part on the parties representations that discovery was
ongoing, a pending discovery dispute and the likelihood of a
second dispute, for which the Court also granted an extension
of time to file. ECF Nos. 30, 31. This extension brought the
total time allotted for class discovery to eight months, and
provided nine months for Plaintiff to file a motion for class
parties continued to have various discovery disputes which
the Court adjudicated. ECF Nos. 32, 34. In September,
Plaintiff again moved for an extension of 90 days to the
discovery and motion filing deadlines. ECF No. 35. The Court
denied without prejudice Plaintiff's request, due in part
to the ongoing nature of document production, and issued an
order to show cause as to why documents were not timely
produced. ECF No. 38. In subsequent reports, the Defendants
represented they anticipated production to be complete by
October 23, 2017. ECF No. 45.
October 6, one week prior to the close of fact discovery, the
parties jointly sought leave to continue the “the
current deadline for the parties to complete class discovery
as it related to only to depositions….” ECF No.
41 at 2:6. The parties identified three depositions and four
dates (plaintiff's deposition to occur over two days) and
did not request any modification of the class certification
deadline. Id. The Court granted leave to complete
only those three depositions beyond the discovery cut-off
date, all of which were to be complete by November 7, 2017.
ECF No. 42.
Ex Parte Application to Extend Deadline to Complete
Depositions and Motion for Class
Plaintiff now moves for an extension of time, 60 days, to
complete depositions and move to certify a class. ECF No. 46.
Plaintiff represents that, as of the time of filing, no
further emails/document production had been produced and the
parties disagreed upon the re-production for deposition of
the 30(b)(6) representative. Id. at 2, 7-8.
Plaintiff asserts that as of October 31, defense counsel
represented that review of the emails remained ongoing, and
that it was unclear if additional emails would be produced in
response to Requests for Production, Set 4 propounded by
Plaintiff. Id. at 5. Plaintiff also takes issue with
instructions given at deposition to the representative of
Sysco San Diego “relating to the size and scope of the
class, which is inclusive of non-exempt industrial
workers….” Id. Plaintiff avers the
parties have been “actively meeting and conferring over
reproducing Defendant Sysco San Diego, Inc.'s 30(b)(6)
representative” but there is a “fundamental
disagreement” on the extent of the questioning to be
allowed and that the parties are in the midst of drafting
Discovery Dispute No. 3. Id. at 6. Plaintiff also
seeks permission to conduct additional depositions.
See ECF No. 46 at 9 (“Plaintiff may also wish
to pursue depositions from witnesses identified for the first
time through Plaintiff's questioning”).
opposition paints a somewhat different picture. Defendants do
admit that production of emails was not completed until
November 3 (the same date that Plaintiff filed his ex parte
application), and total 346 pages. ECF No. 47 at 1, 6.
However, Defendants argue that Plaintiff failed to, and
continues to fail to, exercise diligence in discovery.
Id. Defendants explain that Plaintiff cancelled the
deposition of Sysco Corporation's 30(b)(6)
witness-previously agreed upon and for which the parties
sought and were granted leave of court to conduct beyond the
discovery cut off-due to unspecified “scheduling
conflicts.” Id. at 2, 4; ECF No. 42.
Defendants also explain that the questions which Mr.
Petrossian, Sysco San Diego's 30(b)(6) witness, were
instructed not to answer were beyond the scope of the topics
identified in Plaintiff's deposition notice and regarding
“non-driver” employees, which Defendants argue
are not part of the class. ECF No. 47 at 2. Nonetheless,
Defendants agreed to re-produce Mr. Petrossian on November 2,
a date when the parties were already scheduled to be together
for Plaintiff's deposition. Id. at 3. Plaintiff
declined. Id. Defendants indicate there has been no
response to requests for the next available date to conduct
the continued deposition in person or via phone or video
conference. Id. at 4.
seeking to extend time, either under Rule 6(b) or by seeking
to modify the scheduling order under Rule 16(b), must
demonstrate good cause. Fed. R. Civ. P 6(b) (“When an
act may or must be done within a specified time, the court
may, for good cause, extend the time”); 16(b)(4)
(“A schedule may be modified only for good cause and
with the judge's consent.”).
cause” is a non-rigorous standard that has been
construed broadly across procedural and statutory contexts.
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
1259 (9th Cir. 2010). The good cause standard articulated in
Rule 16 focuses on the diligence of the party seeking to
amend the scheduling order, and the reasons for seeking
modification. Johnson v. Mammoth Recreations, Inc.
975 F.2d 604, 609 (9th Cir. 1992) (“[T]he focus of the
inquiry is upon the moving party's reasons for seeking
modification. ... If that party was not diligent, the inquiry
should end.”) (citing Gestetner Corp. v. Case
Equip. Co., 108 F.R.D. 138, 141 (D.Me.1985)). The
district court may amend the scheduling order if it
“cannot be met despite the diligence of the party
seeking the extension.” Id. (citing
Fed.R.Civ.P. 16 Advisory Committee Notes).