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Dimitre v. California State University Employees' Union

United States District Court, E.D. California

September 24, 2019

THOMAS DIMITRE, Plaintiff,
v.
CALIFORNIA STATE UNIVERSITY EMPLOYEES’ UNION, et al., Defendants.

          ORDER

         Plaintiff, a licensed attorney proceeding pro se moves to reopen discovery so that he may file a motion to compel under Rule 251. The court submitted the matter without oral argument. ECF No. 50. For the reasons provided below, the court DENIES plaintiffs’ motion to reopen discovery.

         I. BACKGROUND

         In its scheduling order, issued in February 2018, the court set the cut-off for fact discovery as October 15, 2018. On October 28, 2018, nearly two weeks after that deadline, plaintiff first moved to compel the production of all documents response to his first request for production. ECF No. 29. After the magistrate judge vacated the hearing on the motion due to plaintiff’s failure to meet and confer as required by Local Rule 251, ECF No. 33, plaintiff filed an amended motion, ECF No. 34. On February 20, 2019, the magistrate judge denied the amended motion on the basis that it still did not comply with Local Rule 251. ECF No. 39.

         Nearly two months later, on April 17, 2019, plaintiff moved to extend the discovery deadline. ECF No. 40. The magistrate judge denied the motion, explaining that, because discovery had already closed, plaintiff was asking the court to re-open discovery and reset the deadline for filing and hearing dispositive motions, and she did not have the authority to do so under the scheduling order in effect in this case. ECF No. 45 at 2 (citing Order, ECF No. 25 at 6). On May 20, 2019, plaintiff again moved to reopen discovery, this time before the undersigned. For the foregoing reasons, the court DENIES plaintiff’s motion.

         II. LEGAL STANDARD

         The court will modify dates set forth in a scheduling order only upon a showing of good cause by the moving party. Fed.R.Civ.P. 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). The “good cause” standard also applies to requests to reopen discovery. See, e.g., Sheridan v. Reinke, 611 F. App’x 381, 384 (9th Cir. 2015) (applying Johnson “good cause” requirement to motions to reopen discovery); Yeager v. Yeager, No. 2:06-CV-001196 JAM-EFB, 2009 WL 1159175, at *2 (E.D. Cal. Apr. 29, 2009) (a party must show “good cause” to reopen discovery).

         The primary factor courts consider in making a good cause determination is whether the moving party was diligent in its attempts to complete discovery in a timely manner. Johnson, 975 F.2d at 609. If that party was not diligent, the inquiry should end and the request should be denied. Id. The decision to reopen discovery involves an exercise of discretion. Hughes Aircraft Co. v. United States, ex rel. William Schumer, 520 U.S. 939, 952 (1997); see also Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987) (“Whether to extend or reopen discovery is committed to the sound discretion of the trial court and its decision will not be overturned on appeal absent abuse of that discretion.”).

         Courts have used a three-step inquiry in assessing diligence for the purposes of determining good cause under Rule 16:

[T]o demonstrate diligence under Rule 16's “good cause” standard, the movant may be required to show the following: (1) that she was diligent in assisting the Court in creating a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that she was diligent in seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order.

Grant v. United States, No. 2:11-CV-00360 LKK, 2011 WL 5554878, at *4 (E.D. Cal. Nov. 15, 2011), report and recommendation adopted, No. CIV-S-11-0360-LKK, 2012 WL 218959 (E.D. Cal. Jan. 23, 2012) (citing Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)).

         Specific factors courts consider when determining a motion to reopen discovery include:

(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 the discovery will lead to relevant evidence.

United States, ex rel. William Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (citing Smith, 834 F.2d at 169).

         “Motions are more often granted when the opposing party’s actions caused delay or when the need to amend arises from some unexpected or outside source.” Fed. Deposit Ins. Corp. As Receiver for Butte Cmty. Bank v. Ching, No. 2:13-CV-01710-KJM-EFB, 2016 WL 1756913, at *2 (E.D. Cal. May 3, 2016) ...


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