United States District Court, E.D. California
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.
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.
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
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
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.”).
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)).
factors courts consider when determining a motion to reopen
(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
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) ...