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Wright v. Old Gringo, Inc.

United States District Court, S.D. California

December 10, 2019

MARSHA WRIGHT, Plaintiff,
v.
OLD GRINGO, INC., et al., Defendants.

          ORDER DENYING OLD GRINGO S.A. DE C.V.'S EX PARTE MOTION FOR LEAVE IF COURT TO TAKE THE DEPOSITION OF C.J. WRIGHT [ECF NO. 203]

          Michael S. Berg United States Magistrate Judge

         On December 3, 2019, Defendant Old Gringo S.A. de C.V. (“OGS”) filed its “Ex Parte Motion for Leave of Court to Take the Deposition of C.J. Wright.” (ECF No. 203.) Plaintiff filed her Opposition on December 4, 2019. (ECF No. 204.) For the reasons discussed in this order, the Court DENIES OGS's motion.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff, a former designer for Defendants Old Gringo, Inc. (“OGI”) and Old Gringo, S.A. de C.V. (“OGS”) (a Western wear manufacturer and distributor and its Mexican sister company, together the “Old Gringo Companies”) alleges that the principles and officers of the Old Gringo Companies, Defendants Ernest Tarut (“Tarut”) and Yan Ferry (“Ferry”), told her in January 2013 that they were giving her a 5% ownership interest in the Old Gringo Companies, but in fact, no such interest was conveyed. (See ECF No. 1.) This basic allegation underlies all of the remaining causes of action in this case.

         This case was filed on September 28, 2017. (ECF No. 1.) The first scheduling order was issued on March 2, 2018 by Magistrate Judge Stormes, who was then the magistrate judge handling this case. (ECF No. 18.) Judge Stormes then set the fact and expert discovery deadline for October 15, 2018. (Id. at 2.) Judge Stormes issued a First Amended Scheduling Order on September 27, 2018, wherein she continued the deadline for the completion of the depositions identified by the parties to December 14, 2019. (ECF No. 33 at 3.)

         OGS did not file its answer and make a general appearance in this case until June 17, 2019. (See ECF No. 116, docket.) The Court then held telephonic case management conferences on September 11 and 17, 2019. (ECF Nos. 174, 177.) Prior to those conferences, the parties submitted a Joint Discovery Plan setting forth their respective positions regarding whether additional discovery was needed in this case in light of OGS's appearance after the close of discovery. (ECF No. 172.) OGS did not request any discovery in the Joint Discovery Plan or during the two case management conferences. In the Joint Discovery Plan, Defendants requested “that the Court set the earliest possible trial date in this case. Defendants have been ready to go to trial since the close of fact discovery in this case, October 15, 2018, almost a year ago.” (Id. at 37.) On September 19, 2019, after consideration of the parties' requests, the Court issued a Second Amended Scheduling Order, which permitted Plaintiff to conduct discovery into OGS only, and did not permit OGS to take any discovery. (ECF No. 179 at 4-5 & n.1.)

         Now, two and a half months after the Court issued the Second Amended Scheduling Order, and with just over one month before the close of all discovery, OGS has filed the instant motion to depose Plaintiff's son, C.J. Wright. (See ECF No. 204.) Plaintiff opposes the motion, on both procedural and substantive grounds, and requests an award of attorney's fees. (Id.)

         II. DISCUSSION

         A. Procedural Issues

         Both parties have addressed procedural issues to the Court. Of the just over five pages that make up OGS' Memorandum of Points and Authorities, three and a half are dedicated to addressing the parties' failed efforts to file a joint motion for determination of discovery dispute regarding this issue. (See ECF No. 203-1.) Defense Counsel's four-page declaration exclusively addresses this issue and attaches voluminous correspondence between counsel for the parties. (Id. at 203-3.) The gist of OGS's presentation is that it attempted in good faith to meet and confer with Plaintiff and address this issue to the Court via joint discovery motion as required, but Plaintiff's counsel refused to cooperate or provide Plaintiff's portions of the motion despite OGS giving Plaintiff more than five court days to do so. (See id.)

         Plaintiff argues that this motion should be denied because Defendants' counsel “failed to meet and confer in any way with Plaintiff's counsel before filing their ex parte motion.” Plaintiff's counsel summarizes the issues regarding the joint motion this way, “Defendants and their counsel refused to prepare a joint motion in the required format, and once Plaintiff's counsel made clear that they needed to do so per the Court's Civil Chambers Rules, Defendants' counsel filed an ex parte motion instead, citing alleged lack of cooperation by Plaintiff.” (ECF No. 204 at 2.)

         The events at-issue appear to the Court as follows: Defendants' counsel sent an email to Plaintiff's counsel on November 12, 2019, raising the instant issue and asking Plaintiff's position. (ECF No. 203-3 at 2, 7.) The next day, Plaintiff's counsel asked when Defendant wanted to meet and confer over the phone. (Id. at 2, 9.) Defendants' counsel claims to have provided Mr. Norris with multiple, multi-hour windows of availability, though she does not state when or how she conveyed that information. (Id. at 2.) At nearly 11:00 p.m. on Tuesday, November 19, 2019, Plaintiff's counsel indicated via email that he would be available in the “late PM” on Wednesday and Thursday. (Id. at 2, 11.) At 11:30 the next morning, Defendants' counsel emailed Plaintiff's counsel that she would call him that afternoon (Wednesday, November 20) at 4:00 p.m. (Id. at 3, 13.) Defendants' counsel's called Plaintiff's counsel as she had planned at 4:00 p.m., but her call went to voicemail and she left a message. (Id. at 3.) Defendants' counsel also sent a follow up email. (Id.) Defendants' counsel then drafted OGS's portion of a joint motion to address its request to take C.J. Wright's deposition and sent it to Plaintiff's counsel via email at approximately 5:48 p.m. on the evening of November 20, 2019, “and indicated to Plaintiff that Defendant intended to file this joint motion on November 27, 2019, thus affording Plaintiff five business days to participate in the joint motion process and to add Plaintiff's contributions to this joint motion.” (Id. at 3, 15-25, 37.) Plaintiff's counsel called Defendant's counsel to meet and confer on November 21, 2019. (Id. at 3.)

         Six days later, at 10:40 p.m. on the night before Defendant intended to submit the joint motion, Plaintiff's counsel responded via email. (Id. at 3, 27-28.) He stated that OGS had not used the “format prescribed by the Magistrate Judge's Civil Chambers Rules, ” specifically because “[t]here is no place for each party's viewpoint to be inserted or any other formatting required for a Joint Motion for Determination of Discovery Dispute (“JMDDD”) to be submitted to the Magistrate Judge.” (Id.) Plaintiff's counsel suggested that Defendants' counsel refer to Plaintiff's prior joint discovery motions for reference and insisted that Defendants' counsel reformat the document and resubmit it to Plaintiff, at which point he would “respond within the time period permitted by Chambers Rules with Plaintiff's contribution and participation to the joint motion.” (Id. at 27.) Defendants' counsel responded the following day via email, stating that she believed OGS's draft motion complied with the Court's requirements, but nevertheless, she added the heading Plaintiff's counsel had requested and asked him to submit his portions by 6:00 p.m. the same night. (Id. at 4, 30.) That afternoon, Plaintiff's counsel sent an email to Defendants' counsel indicating that he believed the new draft was a revision, and he would provide Plaintiff's contributions within five business days of November 27, 2019. (Id. at 4, 32.) Counsel exchanged some additional emails prior to OGS filing the instant ex parte motion, during which OGS gave Plaintiff what it understood to be an extension to December 2, 2019 at 10:00 a.m. to provide Plaintiff's contributions to the motion, and Plaintiff's counsel indicated that OGS did not have Plaintiff or her attorney's permission to file a joint motion. (Id. at 5, 34-36.) When Plaintiff's counsel emailed Defendants' counsel on December 2, 2019, stating that he would provide Plaintiff's contributions at an unspecified future date, Defendants' counsel restyled OGS's motion as an ex parte motion, which OGS filed on December 3, 2019. (ECF No. 203.)

         At the outset, the Court questions whether the instant motion should be considered a discovery motion or a motion to amend the scheduling order. On the one hand, it pertains to OGS's request to take a deposition, but on the other hand, the Court's permission is sought because the deposition is otherwise not allowed by the scheduling order in this case. In light of the fact that both parties appear to have felt that this motion should be treated as a discovery motion, the Court will consider whether OGS adequately complied with Chambers Rules regarding discovery disputes when bringing this motion. (See ECF No. 203-3 at 15-20 (OGS's draft join motion titled “Joint Motion for Determination of Discovery Dispute No. 7 Re: [OGS's] Request for ...


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