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La Jolla Spa MD, Inc. v. Avidas Pharmaceuticals, LLC

United States District Court, S.D. California

November 27, 2019

LA JOLLA SPA MD, INC., Plaintiff,
v.
AVIDAS PHARMACEUTICALS, LLC, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S EX PARTE MOTION TO REOPEN DISCOVERY FOR LIMITED PURPOSES AND TO AMEND THE PRETRIAL SCHEDULING ORDER [DOC. NO. 118]

          HON. MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE

         On October 24, 2019, Avidas Pharmaceuticals, LLC (“Defendant”) filed an ex parte motion to reopen discovery for limited purposes and to amend the Court's Pretrial Scheduling Order dated October 7, 2019. Doc. No. 118.[1] Pursuant to its Civil Chamber's Rules, the Court granted La Jolla Spa MD, Inc.'s (“Plaintiff”) request for additional time to respond to the motion. Doc. No. 119. Plaintiff responded on October 31, 2019. Doc. No. 120. For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendant's ex parte motion.

         I. Motion to Reopen Discovery for Limited Purposes

         A. Legal Standard

         Courts examine multiple factors when deciding whether to amend a Rule 16 scheduling order reopen discovery:

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.

City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (quoting U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995), vacated and remanded on other grounds sub nom. Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939 (1997)).

         “It's ‘significantly' harder to reopen discovery once it's closed than to extend a discovery deadline.” Anderson v. Loma Linda Cmty. Hosp., 996 F.2d 1223 (9th Cir. 1993) (citing West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1524 (9th Cir.1990)). In determining whether to reopen discovery, “[d]istrict courts have ‘wide latitude in controlling discovery, and [their] rulings will not be overturned in the absence of a clear abuse of discretion.'” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027 (9th Cir. 2006) (citations omitted). “A district court abuses its discretion only if the movant diligently pursued previous discovery opportunities, and if the movant can show how allowing additional discovery would have precluded summary judgment.” Id. at 1026 (emphasis added) (citations omitted). The Ninth Circuit “decline[s] to limit the district court's ability to control its docket by enforcing a discovery termination date, even in the face of requested supplemental discovery that might have revealed highly probative evidence, when the plaintiff's prior discovery efforts were not diligent.” Id. at 1027.

         B. Discussion

         Defendant moves to reopen discovery for limited purposes: “(1) to take half-day depositions of Diane York-Goldman, Mitchel Goldman, and Plaintiff's expert-Robert Taylor; and (2) to propound an additional three interrogatories and four requests for admissions.” Doc. No. 118-1 at 21. Arguing that Defendant fails to meet the standard to reopen discovery, Plaintiff emphasizes that Defendant must carry the consequences of its failure to depose the witnesses given that it has been two-and-a-half years since the case was filed to conduct discovery, and it knew of the importance of the witnesses it seeks to depose. Doc. No. 120 at 12.

         The first factor-imminence of trial-weighs in favor of Defendant in light of the Court granting Defendant's motion to amend the Pretrial Scheduling Order. See infra Part II.B. Given that this Order pushes the trial date to May 2020, trial is no longer as imminent as it would have been under the Court's previous Order.

         The second factor-opposition to the request-clearly weighs in favor of Plaintiff because it opposes the ex parte motion. See Doc. No. 120.

         The third factor-prejudice to the nonmoving party-weighs in favor of Plaintiff because of the additional fees and costs associated with the depositions and written discovery coupled with the undue delay associated with the request. Defendant points to a district court order that found “in the absence of undue delay, the need for additional discovery and postponement of trial do not constitute prejudice to the defendant.” Bear, LLC v. Marine Grp. Boat Works, LLC, No. 14CV2960 BTM(BLM), 2016 WL 3667152, at *3 (S.D. Cal. July 11, 2016). However, here, there is undue delay.

         Defendant, through its prior attorneys, had two opportunities to conduct discovery. The Magistrate Judge's April 19, 2018 Scheduling Order called for all fact discovery to be completed on or before June 18, 2018, and for all expert witness discovery to be completed on or before August 27, 2018. Doc. No. 24 at 2. On January 9, 2019, the Magistrate Judge issued an Amended Scheduling Order providing for limited discovery for all fact discovery to be completed on or before April 8, 2019, and for all expert witness discovery to be completed on or before June 17, 2019. Doc. No 54 at 2. These discovery deadlines involved overlap of at least three of Defendant's previous counsel- not solely previous defense counsel Julie Chovanes (“Chovanes”) whose actions Plaintiff extensively claims was “egregious” and prejudicial to Defendant. See, e.g., Doc. No. 118-1 at 5, 16, 18, 22, 23

         In the parties' joint discovery plan signed January 15, 2018, Defendant anticipated “approximately 3-4 depositions including the potential for depositions of out-of-state witnesses. These depositions will include at least Dianne York-Goldman, Mitchell Goldman, and the representatives of Perfume AZ Warehouse and the entity that sold Vitaphenol products to Perfume AZ Warehouse.” Doc. No. 120-3 at 5. This document was signed by previous defense counsel Gary Brucker (“Brucker”). Id. at 7. Under a later joint discovery plan signed January 4, 2019, by previous defense counsel Jennifer McGrath (“McGrath”), Defendant states the following: “Defendant believes discovery is complete”; “Defendant believes no changes [to the limitations of discovery] are necessary and discovery is over”; and “[a]s noted herein Defendant ...


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