Adams v. Symetra Life Insurance Company ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Luke Adams, an individual, ) No. CV-18-0378-TUC-JGZ (LAB) ) 10 Plaintiff, ) ORDER ) 11 vs. ) ) 12 Symetra Life Insurance Company, an Iowa) corporation, ) 13 ) Defendant. ) 14 ) ) 15 16 Pending before the court is the plaintiff’s motion, filed on December 31, 2020, for 17 sanctions and to modify the scheduling order. (Doc. 289) The defendant filed a response on 18 January 22, 2021. (Doc. 296) The plaintiff filed a reply on February 19, 2021. (Doc. 306) 19 This matter was referred to Magistrate Judge Bowman pursuant to the Rules of Practice 20 of this court. See LRCiv 72.1(c). 21 The motion will be denied. 22 23 Background 24 The plaintiff, Robert Luke Adams, claims the defendant, Symetra Life insurance 25 Company (Symetra), breached an insurance contract and breached the duty of good faith and 26 fair dealing by failing to pay benefits due in accordance with his Long Term Disability Income 27 Insurance Policy (Policy). (Doc. 1) Adams worked as “a self-employed insurance agent.” 28 1 (Doc. 1, p. 2) He maintains that he became disabled “no later than July 11, 2017” due to 2 rheumatoid arthritis and low back pain. (Doc. 1, p. 3) Symetra paid benefits starting October 3 9, 2017, but stopped paying benefits after one year. (Doc. 1, p. 3) Adams believes Symetra is 4 relying on a term in the Policy that limits benefits if disability arises out of a “special condition” 5 – a “[m]usculoskeletal and connective tissue disorder[] of the neck and back.” (Doc. 1, p. 3) 6 When Adams first applied for benefits, Symetra hired MLS Group (MLS) to review the 7 medical record and assess his claim. (Doc. 179, p. 7); (Doc. 289, p. 2) MLS “is a leading . . 8 . provider of . . . Independent Medical Examinations . . . .” (Doc. 179, p. 7) MLS physicians 9 Frank Polanco and Vikram Garg reviewed the medical record and offered their opinions of 10 Adams’s ability to work. (Doc. 179, p. 10); (Doc. 289, p. 2) On February 25, 2019, Adams 11 served MLS with a subpoena for records relating to its analysis of Adams’s medical 12 impairments. (Doc. 179, pp. 12-13); (Doc. 289, p. 2) MLS complied to some extent, but it 13 denied discovery of some categories of documents. Id. Specifically, MLS failed to disclose 14 “[a]ll notes relating to Robert Luke Adams, including but not limited to, all notes from 15 interviews, rough drafts, and telephone conversations relating to Robert Luke Adams.” (Doc. 16 179, p. 13) “After nearly half a year of attempting to resolve the discovery dispute,” Adams 17 filed a motion to compel on December 13, 2019, the last day of discovery. (Doc. 179); (Doc. 18 284, p. 5) 19 This court granted the motion to disclose documents in spite of the fact that the motion 20 was filed on the last day of discovery. (Doc. 221) The court noted that “while there might have 21 been unnecessary delay, there is no showing that this delay resulted in any prejudice.” (Doc. 22 221) MLS subsequently filed an objection to the discovery order, which was denied by the 23 District Court as it related to these documents. (Doc. 284) The District Court noted that this 24 court did not dismiss the motion as untimely and observed that, while the court’s analysis was 25 not an abuse of discretion, reasonable minds could have reached a different conclusion. (Doc. 26 284, p. 6) 27 MLS eventually disclosed 113 pages of documents on December 3, 2020. (Doc. 289, 28 p. 3) Among those documents were earlier drafts of the Polanco and Garg medical reports. 1 These earlier drafts differ in significant ways from the doctors’ previously disclosed final 2 reports. Adams believes these drafts are evidence that the defendant, Symetra, is improperly 3 influencing these supposedly “independent” medical reports. He subsequently filed the pending 4 motion in which he moves that this court extend the discovery deadline to permit him to conduct 5 five depositions designed to reveal who made the edits and why. (Doc. 289, p. 1) He further 6 moves that this court order Symetra to pay the costs and attorney’s fees associated with those 7 depositions and the fees associated with bringing the pending motion. (Doc. 289, p. 17) 8 9 Discussion 10 “In general, the pretrial scheduling order can only be modified upon a showing of good 11 cause.” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) 12 (punctuation modified); see also Fed.R.Civ.P. 16(b)(4). The determination of good cause 13 ordinarily turns on the movant’s diligence. “If the party seeking the modification was not 14 diligent, the inquiry should end and the motion to modify should not be granted.” Id. 15 On this record, the court cannot say that Adams has been diligent overall. Since 16 receiving the additional discovery from MLS, he has acted diligently. But the court cannot 17 overlook the fact that he is asking to conduct follow-up discovery on documents that he 18 obtained as a result of a motion to compel filed on the last day of discovery. When a party files 19 a motion to compel on the last day of discovery, it is within the court’s discretion to deny the 20 motion as untimely. See, e.g., Gerawan Farming, Inc. v. Rehrig Pac. Co., 2013 WL 492103, 21 at *5 (E.D. Cal. 2013) (denying motions to compel filed on the last day of discovery and 22 collecting cases). Where, as here, the court grants such a motion, the movant should not be too 23 surprised if the court’s indulgence extends to that particular motion and no farther. 24 This action was filed on August 3, 2018, almost three years ago. (Doc. 1) The 25 scheduling order issued on November 5, 2018. (Doc. 23) The discovery deadline, which was 26 originally set for November 1, 2019, was extended once by stipulation. (Doc. 88) The amended 27 discovery deadline expired on December 13, 2019, eighteen months ago. (Doc. 88) The 28 defendant’s motions for summary judgment were denied in November of 2020. (Doc. 281); 1 || (Doc. 283) There remains outstanding a motion to reconsider, but that motion is now almost 2 || seven months old and should be resolved soon. (Doc. 285) The time for discovery has past. 3 || See also Fed.R.Civ.P. 1; see, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027 4 || (9" Cir. 2006) (“We decline to limit the district court’s ability to control its docket by enforcing 5 || a discovery termination date, even in the face of requested supplemental discovery that might 6 || have revealed highly probative evidence, when the plaintiff's prior discovery efforts were not 7 || diligent.’’). 8 9 IT IS ORDERED that the plaintiff's motion, filed on December 31, 2020, for sanctions 10 |] and to modify the scheduling order is DENIED. (Doc. 289) 11 12 DATED this 14" day of June, 2021. 13 14 15 16 Rees OQ. Bowman Leslie A. Bowman 17 United States Magistrate Judge 18 □ 19 20 21 22 23 24 25 26 27 28 _4-