Opinion
2:19-cv-01329-WBS-DB
10-22-2021
PHILIP DEBEAUBIEN, Plaintiff, v. STATE OF CALIFORNIA, CALIFORNIA HIGHWAY PATROL, TODD BROWN, SABRENA SWAIN, JOY GRAF, REGGIE WHITEHEAD, RYAN STONEBRAKER, BRENT NEWMAN, and JEREMY DOBLER, Defendants.
ORDER DENYING DEFENDANTS' MOTION TO MODIFY THE SCHEDULING ORDER AND EX PARTE APPLICATIONS TO EXTEND OR STAY EXPERT DISCLOSURE DEADLINES
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE.
Plaintiff Philip Debeaubien (“plaintiff”) brought this action under 42 U.S.C. § 1983 against the State of California; the California Highway Patrol; CHP officers Todd Brown, Reggie Whitehead, Ryan Stonebraker, Brent Newman, and Jeremy Dobler (collectively the “CHP defendants”); Joy Graf; and Sabrena Swain; seeking damages on various federal and state law claims. (See First Amended Complaint (Docket No. 30).) Defendants now request extensions of several deadlines set forth in the Pretrial Order of January 29, 2021.
Specifically, (1) the CHP defendants request via ex parte application that the court extend the deadlines for expert and rebuttal expert disclosures by three months each, (see Docket No. 86); (2) Graf and Swain move to extend all remaining pretrial deadlines and the trial date by 2-3 months each, (see Docket No. 89); and (3) Graf and Swain request via ex parte application that the court stay the expert and rebuttal expert disclosure deadlines pending a ruling on the first two requests, (see Docket No. 94).
Because the court will address all three requests in this order, Graf and Swain's ex parte application for a stay of the expert disclosure deadlines pending consideration of the first two requests is DENIED AS MOOT.
I. Legal Standard
Under Federal Rule of Civil Procedure 16(b), “[a] schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also Fed.R.Civ.P. 16, Advisory Committee's Notes (1983 Amendment) (directing courts to consider whether a deadline “cannot reasonably be met despite the diligence of the party seeking the extension”).
Although the CHP defendants style their request as an ex parte application, the court will evaluate it under the Rule 16 standard, like Graf and Swain's motion, given that it also seeks modification of the scheduling order.
“If that party was not diligent, the inquiry should end.” Johnson, 975 F.2d at 609. Judges in this district have further articulated the test to evaluate diligence, under which a movant may establish good cause by showing:
(1) that it was diligent in assisting the Court in creating a workable Rule 16 order; (2) that, despite its diligent efforts to comply, its noncompliance with a Rule 16 deadline occurred because of the development of matters that could not have been reasonably foreseen or anticipated; and (3) that it was diligent in seeking amendment of the Rule 16 order, once it became apparent that it could not comply with the order.U.S. E.E.O.C. v. Placer ARC, 2:13-cv-0577 KJM EFB, 2014 WL 5419879, at *2 (E.D. Cal. Oct. 23, 2014) (citing Van Scoy v. New Albertson's Inc., 2:08-cv-2237 MCE KJM, 2011 WL 1079914, at *3 (E.D. Cal. Mar. 21, 2011); Hood v. Hartford Life & Acc. Ins. Co., 567 F.Supp.2d 1221, 1224 (E.D. Cal. 2008); Weco Supply Co. v. Sherwin-Williams Co., 1:10-cv-0171 AWI BAM, 2012 WL 1424437, at *3 (E.D. Cal. Apr. 24, 2012)) (alterations adopted). Although “the focus of the inquiry is upon the moving party's reasons for seeking modification, ” a court may also consider prejudice to the opposing party in making its determination. Johnson, 975 F.2d at 609.
Once a party seeking amendment has shown “good cause, ” it must also show that the amendment is proper under Rule 15. See Id. at 608 (citations omitted). Under that rule, “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, leave should not be granted under Rule 15 if amendment (1) would cause prejudice to the opposing party, (2) is sought in bad faith, (3) creates undue delay, or (4) is futile. Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1153 (9th Cir. 2011) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “Because Rule 16(b)'s ‘good cause' inquiry essentially incorporates the first three factors, if a court finds that good cause exists, it should then deny a motion for leave to amend only if such amendment would be futile.” J & J Sports Prods., Inc. v. Maravilla, 2:12-cv-02899 WBS EFB, 2013 WL 4780764, at *1 (E.D. Cal. Sept. 5, 2013).
II. Analysis
All defendants seek extensions of the expert disclosure deadlines. (See generally CHP Ex Parte App. to Extend Exp. Discl. Dates (“CHP App.”) (Docket No. 86); Mot. to Amend Sched. Order (“Mot.”) (Docket No. 89).) They argue that additional time is necessary so that they may submit complete expert disclosures, including one by a physician following an independent medical examination of plaintiff pursuant to Rule 35, and one by an expert economist to evaluate plaintiff's damages. (See CHP App. at 2-3 (Docket No. 86); Mot. at 5-6 (Docket No. 89); Opp. to CHP App. at 3-4 (Docket No. 88); Opp. to Mot. at 11-13 (Docket No. 98).) Defendants Graf and Swain also seek extension of the remaining deadlines so that they may reopen plaintiff's deposition to address issues relating to his allegations against them and subpoena records from him relating to damages. (See Mot. at 5 (Docket No. 89).) Although the CHP defendants have not requested an extension of the remaining deadlines, they also note their desire to depose plaintiff regarding damages. (See CHP App. at 2 (Docket No. 86).
In seeking extension of the expert disclosure deadlines, Graf and Swain cite plaintiff's counsel's failure to respond to their requests that plaintiff voluntarily dismiss Graf from the case, based on their belief that July 30 and August 11, 2021 depositions showed no evidence of liability as to Graf. (See Defs.' Reply at 4 (Docket No. 100); Song Suppl. Decl. at ¶¶ 5-6 (Docket No. 100-1).) Although they make no such argument as to Swain, they refer to their delay in retaining an expert for both defendants as “[c]ounsel's defense strategy, based on the lack of evidence against their respective clients.” (Defs.' Reply at 10 (Docket No. 100).)
In other words, defendants acknowledge that their delay was a strategic choice based on their hope that plaintiff would voluntarily dismiss Graf -- obviating the need to retain an expert on her behalf -- which they contend does not evince a lack of diligence. (See Id. at 4.) They do so notwithstanding their concession that they did not retain their expert until after plaintiff's counsel did not respond to their requests. (See id.)
Graf and Swain note that their expert had a pre-scheduled two-week vacation in early September, which they contend further prevented them from obtaining an expert opinion in time for the September 10 deadline. (See Defs.' Reply at 4 (Docket No. 100).) They add that, following that vacation, she completed her reports on September 29 and 30, 2021, but acknowledge that counsel did not produce the rebuttal report before the October 1 deadline. (See id.)
They also contend that they were delayed in providing a transcript of Swain's July 30, 2021 deposition to their expert, in turn preventing the expert from timely providing a report, because they did not receive the transcript from plaintiff's counsel until August 27, 2021. (See Swain Ex Parte App. to Stay Exp. Discl. Deadlines at 5 (“Swain App.”) (Docket No. 94); Leonard Decl. at ¶ 8 (Docket No. 94-1).) They contend that the delayed report was also partly a result of plaintiff's counsel not requesting Graf's deposition until June 27, 2021. (See Defs.' Reply at 5 (Docket No. 100).) However, as they acknowledged during oral argument, in response to that request, counsel for Graf offered August 11 and 18 as the earliest dates for the deposition -- more than one month later, and less than one month before the September 10 expert disclosure deadline.
Graf and Swain submitted expert disclosures on September 10, disclosing one expert witness, Dr. Sarah Polfliet, though they and their counsel acknowledge that neither disclosure included an expert report. (See Swain App. at 3 (Docket No. 94); Leonard Decl. at ¶¶ 24-25 (Docket No. 94-1).) In a September 14 email to plaintiff's counsel, counsel for Graf expressed her belief that no expert report was required, (see Katz Decl., Ex. K (Docket No. 98-1)), notwithstanding Federal Rule of Civil Procedure 26(a)(2)(B), though she subsequently requested additional time to provide one, (see id., Ex. G). It is unclear to the court why Graf and Swain could not have simply ordered a transcript from the deposition reporter, and they do not assert that they were unable to do so.
All defendants point to extensive discovery requests propounded by plaintiff as further justification for seeking extension of pretrial deadlines. In essence, they argue that for much of the past several months, they have been so consumed with responding to those requests and participating in depositions plaintiff had requested that they were left with insufficient time to engage in their own end of the discovery process, including timely submitting their expert disclosures. (See CHP App. at 2-4 (Docket No. 86); Mot. at 4-6 (Docket No. 89).)
All defendants further contend that the COVID-19 pandemic, along with consequent emergency stay-at-home orders, have also frustrated their ability to engage in discovery and meet the scheduling order's deadlines, though they provide little detail on this point. (See CHP App. at 2 (stating that stay-at-home orders “have . . . slowed down counsel from completing the non-expert discovery needed, including taking the second session of Plaintiff's deposition”) (Docket No. 86); Mot. at 6 (stating that the pandemic has “cannibaliz[ed] valuable time needed to conduct discovery and to prepare the case for trial, ” and that “[t]he parties had . . . anticipated that the pandemic would wane such that Plaintiff's deposition . . . could be conducted in person” (Docket No. 89).)
Finally, the CHP defendants contend that they need extra time to submit their expert disclosures because they have had new counsel as of mid-July, who states that he “ha[s] major cases demanding [his] attention, including cases dealing with water delivery and the Santa Ana Pipeline, ” and that consequently “[i]t has taken time to get up to speed on this case.” (See CHP App. at 2, Helfat Decl. at ¶¶ 3-4 (Docket No. 86).)
The CHP defendants are represented by the California Attorney General's office, where both their current and previous counsel serve as Deputy Attorneys General. (See Docket No. 83.)
These explanations wholly fail to demonstrate the diligence required to justify the amendments to the scheduling order sought by defendants. That Graf and Swain hoped plaintiff would voluntarily dismiss Graf from the case, and on this basis delayed their decision to retain an expert until it was too late for her to timely provide the required report -- in part because, it appears, they did not learn she would be going on vacation until they retained her in August -- simply represents a gambit to avoid having to retain an expert for Graf. That this fails to show diligence is evidenced by the fact that, even if their effort had proved successful, Swain's need for an expert would not have changed, as they only sought dismissal of Graf. Thus, their strategy cannot explain the delay as to Swain. See Johnson, 975 F.2d at 609 (modification of scheduling order's deadlines appropriate “if [the deadlines] cannot reasonably be met despite the diligence of the party seeking the extension”) (citation omitted).
Further, when asked in June to schedule a deposition of Graf, her counsel offered August 11 as the earliest possible date. At oral argument, Graf's counsel stated that this was because neither she nor Graf had any room in their schedules in July. Even if true, and if -- as Graf contends -- the expert needed Graf's deposition transcript before she could prepare her report, counsel should have known to retain an expert early enough to enable her to timely complete the report following the deposition. That the expert Graf and Swain chose to retain happened to have a pre-scheduled vacation during that period did not excuse their obligations to meet that deadline. Nor did it excuse them from, at the very least, notifying the court as soon as it became clear that they would be unable to do so -- not weeks later, on the date expert disclosures were due, as Graf and Swain have done here. (See Mot. (Docket No. 89); Placer ARC, 2014 WL 5419879, at *3 (parties seeking modification of scheduling order must “timely object[ ] to an order with which [they] took issue”).)
Unlike Swain, Graf has not asserted that she was unable to timely obtain a transcript of her August 11 deposition.
Defendants' remaining arguments are even less persuasive. While it may be that plaintiff has sought extensive discovery in this case, this does not excuse defendants from fulfilling their own obligations under the scheduling order, of which they have been aware since January. They provide little explanation for their failure to seek their desired discovery by now. Moreover, their claims that they had no time to do so for the better part of a year are belied by the significant effort they appear to have put into opposing plaintiff's discovery requests, as noted in Magistrate Judge Barnes's recent -- and sixth -- order granting plaintiff's motion to compel discovery. (See Docket No. 109.)
In that order, Judge Barnes specifically observed that “this is not the first[ ]time defendants' conduct has been found wanting, ” noting that she previously issued monetary sanctions “in light of defendants' repeated obstruction of discovery, ” and stated that she “remain[ed] concerned about defendants' apparent habit of unnecessary delay and waste of resources.” (Id. at 2; see also Docket Nos. 23 (granting prior motion by plaintiff to compel discovery), 46 (same), 70 (same), 72 (same), 82 (same, awarding monetary sanctions “in light of defendants['] repeated obstruction of discovery” and other issues, and cautioning “that, at some point, the undersigned may find monetary sanctions insufficient to correct defendants' behavior and look to more extreme sanctions”).)
The pattern of conduct Judge Barnes describes is inconsistent with the good cause defendants are required to show in seeking modification of the scheduling order. It also suggests that defendants assumed they could focus their efforts on challenging plaintiff's discovery requests and nevertheless receive additional time to meet their own deadlines. However, as the Ninth Circuit stated in Johnson:
A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril. [A] district court's decision to honor the terms of its binding scheduling order does not simply exalt procedural technicalities over the merits of [the moving party's] case. Disregard of the order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.975 F.2d at 610 (quotation marks and citations omitted). As such, the court is unwilling to reward parties' dilatory tactics by amending it whenever those tactics prove unsuccessful.
Nor do defendants' vague and generalized references to the COVID-19 pandemic excuse their lack of diligence. The court does not by any means deny the seriousness of the pandemic. However, as another California district court aptly stated under similar circumstances:
[H]ere, Plaintiff simply says the word “COVID-19” as if it, in and of itself, is justification to excuse delays and dereliction without providing any support. For example, was Plaintiff's expert herself affected by the virus, or someone she cares for? Did COVID-19 prevent the expert from accessing important information she needed? Apparently, none of these things or more occurred because if they had, Plaintiff most assuredly would have included these challenges in her papers.Martinez v. Costco Wholesale Corp., 336 F.R.D. 183, 188 (S.D. Cal. 2020). Here, defendants have similarly failed to explain how the pandemic has prevented them from meeting the scheduling order's deadlines, which is noteworthy considering that it clearly has not prevented them from obstructing plaintiff's discovery efforts. Accordingly, this attempt to justify their delay likewise fails to show good cause to amend the order.
Finally, the CHP defendants' current counsel has been assigned to this case since mid-July, which should have been adequate time to complete any efforts begun by their prior counsel to timely retain necessary experts and produce their reports. Moreover, it is the Attorney General himself who represents the CHP defendants in this case. And it is his responsibility to assign attorneys in his office who are able to adequately represent state defendants and meet the deadlines previously set by the court. It is no excuse that here the Attorney General decided to replace the lead attorney with one who lacked sufficient time to comply with the existing scheduling order. CHP defendants' counsel's asserted lack of time to work on this case thus fails to constitute good cause to amend the order.
Further, as current counsel for the CHP defendants acknowledged at oral argument, he had been included in communications relating to this case since before he formally joined the case in July, and thus would have been apprised of any need for experts even sooner. (See also Katz Decl. at ¶ 23 (attesting that counsel for plaintiff was advised on or soon after June 6 that current counsel for CHP defendants would be assuming the role of lead counsel in their defense).)
Two additional factors further demonstrate the absence of good cause under these circumstances. First, as noted above, whether a party “was diligent in seeking amendment of the [scheduling] order, once it became apparent that it could not comply with the order, ” can help demonstrate good cause to amend. See Placer ARC, 2014 WL 5419879, at *2. Here, the parties have been aware of the September 10 and October 1 expert disclosure deadlines since January. (See Docket No. 38.) No. defendant contends that plaintiff's claims against them were of such a nature that they could not have foreseen the need to retain one or more experts. Accordingly, the CHP defendants' delay until September 8, 2021 (two days before the initial expert disclosure deadline) and Graf and Swain's delay until September 10 (the day of the deadline) to request extensions demonstrates a lack of diligence in seeking amendment. Cf. Martinez, 336 F.R.D. at 187 (granting motion to strike late-submitted expert disclosures where submitting party “had nearly eleven months to prepare and submit timely expert reports . . . . [y]et[, ] even with ample time, . . . waited until four days before the expert disclosure was due to ask for an extension”).
Second, it appears that defendants have taken very few steps to pursue their own discovery thus far. As plaintiff points out, and as defendants have not disputed, defendants have yet to either schedule another session in which to depose plaintiff or take action to obtain an independent medical examination of him -- some of the discovery for which now they claim to need additional time -- (see Opp. to Mot. at 10-13 (Docket No. 98)), despite having had months to do so before now. For all of the foregoing reasons, the court concludes that defendants have not shown the requisite diligence in seeking amendment of the scheduling order.
Although ordinarily if the court concludes that “th[e] party [seeking amendment] was not diligent, the inquiry should end, ” “the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion.” See Johnson, 975 F.2d at 609. Here, granting the relief sought by defendants would result in unfair prejudice to plaintiff. Plaintiff, who opposes defendants' requests, has timely submitted his expert disclosures, notifying defendants of seven experts upon whom he may rely and providing an expert report from each. (See Opp. to Mot. at 21 (Docket No. 98); Katz Decl., Ex. C (Docket No. 98-1).) If the court were to grant defendants additional time to prepare and submit theirs, defendants would receive an unfair tactical advantage by having additional time and materials to have their expert witness reports prepared. For this reason as well, the court concludes that defendants lack good cause to receive an extension.
Because the court does not find good cause to grant defendants' requested amendments to the scheduling order, the court does not reach the issue of whether Rule 15's requirements are satisfied.
IT IS THEREFORE ORDERED that that the CHP defendants' ex parte application to extend the expert disclosure deadlines, as well as Graf and Swain's motion to amend the scheduling order, be, and the same hereby are, DENIED.
If the court's denial of defendants' requests puts them at a disadvantage, it is a consequence, which should have been anticipated, of their attorneys' lack of diligence and failure to comply with the court's orders. See Johnson, 975 F.2d at 610.