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Frieri v. Sysco Corp.

United States District Court, S.D. California

November 9, 2017

RICK FRIERI, on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiff,



         Before 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.

         I. Relevant Procedural Background

         Due to 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.

         Near 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 certification.

         The 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.

         On 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.

         II. Ex Parte Application to Extend Deadline to Complete Depositions and Motion for Class Certification

         The 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”).

         Defendants' 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.

         III. Discussion

         A party 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.”).

         “Good 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).

         A. ...

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