United States District Court, S.D. California
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]
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
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.
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.
Motion to Reopen Discovery for Limited
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
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
‘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.
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.
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.
second factor-opposition to the request-clearly weighs in
favor of Plaintiff because it opposes the ex parte motion.
See Doc. No. 120.
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.
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
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 ...