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Hatton v. BSI Financial Services

United States District Court, E.D. California

November 15, 2017

P. ORB HATTON and DIANE HATTON, Plaintiffs,
v.
BSI FINANCIAL SERVICES, Defendant.

          ORDER DENYING PLAINTIFFS' MOTION TO CONTINUE TRIAL, AND GRANTING DEFENDANT'S MOTION FOR TERMINATING SANCTIONS (ECF NOS. 107, 110)

         This case has been pending for more than two years. Plaintiffs' case against one defendant has already been resolved, and one defendant, BSI Financial Services (“BSI”), remains. After multiple extensions of the schedule, the current trial date is March 27, 2018. The case has hit a standstill, however, as Plaintiffs are unwilling to sit for their depositions. Plaintiffs have requested further extensions of the schedule, (ECF No. 110), whereas BSI has requested terminating sanctions, pursuant to Fed.R.Civ.P. 41(b), based on Plaintiffs' failure to appear for their depositions. (ECF No. 107).

         Because Plaintiffs have failed to comply with court orders and have failed to show good cause to further modify the scheduling order, the Court DENIES Plaintiffs' motion to continue the date of trial, and GRANTS Defendant's motion for terminating sanctions.

         I. BACKGROUND

         Plaintiffs P. Orb and Diane Hatton commenced this action on February 4, 2015 against Bank of America, N.A. and BSI. (ECF No. 1.) On August 18, 2015, the Court issued a scheduling order, initially setting a non-expert discovery cut-off date of March 11, 2016 and a trial date of January 20, 2017. (ECF No. 55.)

         Since that time, the Court has modified the scheduling order numerous times. On November 15, 2016, based on the stipulation of the parties, the Court modified the scheduling order by setting a non-expert discovery cut-off date of January 6, 2017 and a trial date of September 26, 2017. (ECF No. 81.)

         Plaintiffs and Bank of America, N.A. reached a settlement on February 26, 2016. (ECF No. 72)

         On March 20, 2017, the remaining parties filed a joint motion to further modify the scheduling order to extend all dates by six months. (ECF No. 96.) The parties explained that P. Orb Hatton had been unable to sit for his deposition because, “As a result of the chemotherapy, [Orb Hatton] has a condition named ‘chemo brain' which is described by the Mayo Institute as ‘chemotherapy-related cognitive impairment or cognitive dysfunction.' ‘Chemo brain' sometimes called ‘chemo fog' describes thinking and memory problems that can occur after cancer treatment.” (ECF No. 96.) Moreover, Diane Hatton filed Chapter 13 Bankruptcy on October 17, 2016, and had not obtained leave of the bankruptcy trustee to move forward with litigation. Id. Also, Plaintiffs' attorney had withdrawn as counsel. Id. at 8.

         On March 23, 2017, the Court modified the scheduling order, setting a non-expert discovery cut-off of June 6, 2017 and a trial date of March 27, 2018. (ECF No. 98.)

         On June 5, 2017, Plaintiffs filed a motion requesting a “4 month postponement of case.” (ECF No. 99.) Plaintiffs explained that “My oncologist, Dr. Lan, has informed me and BSI's Attorneys, that due to my chemotherapy treatments, my mental capacities are compromised. I am recovering, however not completely.” Id. Plaintiffs also stated that they were awaiting a response to an offer of settlement. Id. Plaintiffs did not attach any medical information or note from a medical professional in their request for a postponement.

         BSI responded to Plaintiffs' motion, (ECF No. 101), explaining that both Plaintiffs had failed to attend their noticed depositions set for June 5, 2017. Plaintiff Orb Hatton had informed defense counsel that “he is currently recovering from his treatments and still has trouble remembering clearly.” (ECF No. 101, at 2.) No reason was given for the failure of Plaintiff Diane Hatton to attend her deposition.

         On June 15, 2017, the Court again modified the scheduling order, changing the non-expert discovery cut-off date to September 1, 2017. (ECF No. 102.) In the order extending the schedule, the Court stated “The Court is mindful, however, that this case has been pending for nearly two and a half years at this point and has already received lengthy extensions that are not commensurate with the complexity of the case. Thus, while Plaintiffs' motion is GRANTED in part, the Court will not grant the parties the entirety of the requested extension, nor will it move the pretrial conference or trial dates. The parties are also advised that, barring extraordinary circumstances, no further extensions of time will be granted.” (ECF No. 102.)

         On September 6, 2017, a Telephonic Informal Discovery Dispute Conference was held concerning Plaintiffs' failure to appear for deposition. (ECF No. 104.) Defendant stated that it served seventh amended notices of deposition on Plaintiffs, setting depositions for August 8, 2017. Plaintiffs requested an extension, and Defendant agreed to continue the depositions to August 22, 2017. Plaintiffs then requested a further continuance. BSI declined to offer any further continuances.

         Mr. Hatton stated that he was no longer undergoing chemotherapy, but was concerned that he was experiencing memory issues as a residual effect of the treatment. Mr. Hatton further stated that he intends to sit for deposition, but was awaiting clearance from his physician, who he would see on September 12, 2017.

         The Court told the parties that it would not move the trial date. But, the Court extended the non-expert discovery deadline to October 11, 2017, and directed Plaintiffs to appear for deposition before expiration of the non-expert discovery period. Id. The parties set a meet and confer for September 14, 2017. The Court directed the Plaintiffs to confer regarding a date for their deposition. The Court stated that Plaintiffs could state on the record any issues with their memory that should be noted, but that the depositions must go forward. The Court explained that there would be consequences for ...


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