Mountjoy v. Bank of America, N.A. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CALVIN MOUNTJOY, No. 2:15-cv-02204-TLN-DB 12 Plaintiff, 13 v. ORDER 14 SETERUS, INC. and DOES 1–20, 15 Defendants. 16 17 This matter is before the Court on Defendant Seterus, Inc.’s (“Defendant”) Ex Parte 18 Application to Modify the Scheduling Order. (ECF No. 81.) No opposition has been filed. For 19 the reasons set forth below, the Court GRANTS Defendant’s Ex Parte Application. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff Calvin Mountjoy (“Plaintiff”) filed the instant wrongful foreclosure action in the 3 Sacramento County Superior Court on April 2, 2015. (ECF No. 1-1.) Defendant removed the 4 action to this Court on October 22, 2015. (ECF No. 1.) On October 23, 2015, the Court issued 5 new case documents, requiring the parties to file a joint status report with proposed pre-trial 6 deadlines pursuant to Federal Rule of Civil Procedure (“Rule”) 26(f) “within sixty (60) days of 7 service of the complaint on all defendants, or from the date of removal.” (ECF No. 2.) This did 8 not happen. Multiple filings and stipulations later, Plaintiff filed the operative Third Amended 9 Complaint (“TAC”) on May 8, 2018, which Defendant answered. (ECF Nos. 49, 68.) On May 10 14, 2020, the Court again ordered the parties to file a joint status report. (ECF No. 69.) 11 On June 12, 2020, Defendant filed a unilateral status report, noting Plaintiff refused to 12 respond to Defendant’s requests and attempts to draft and submit a joint status report. (ECF No. 13 70.) The Court issued the Pretrial Scheduling Order on July 6, 2020. (ECF No. 71.) Pursuant to 14 the Pretrial Scheduling Order, the non-expert discovery deadline was set for June 11, 2021; the 15 expert disclosure deadline was set for August 12, 2021; and the dispositive motion deadline 16 (which includes all dispositive motion hearings) was set for December 16, 2021. (See generally 17 id.) The Order additionally reminded the parties that the Pretrial Scheduling Order would only be 18 modified upon leave of the Court upon a showing of good cause. (Id. at 8.) 19 Thereafter, in response to Plaintiff’s complete failure to provide discovery responses or 20 provision of untimely responses “subject to” various objections, Defendant filed two separate 21 motions to compel. (ECF Nos. 72, 77.) The magistrate judge granted both motions and awarded 22 Defendant monetary sanctions. (ECF Nos. 78, 80.) Meanwhile, on April 23, 2021, Defendant 23 filed a unilateral statement regarding an ongoing discovery dispute with Plaintiff to provide 24 adequate production responses and request for sanctions (ECF No. 79), which is currently 25 pending before the magistrate judge. 26 On May 27, 2021, Defendant filed the instant ex parte application to modify the Pretrial 27 Scheduling Order. (ECF No. 81.) The application is unopposed. 28 /// 1 II. STANDARD OF LAW 2 A. Ex Parte Relief 3 In general, the Court will not grant ex parte relief unless “the moving party’s cause will be 4 irreparably prejudiced if the underlying motion is heard according to regular noticed motion 5 procedures” and “the moving party is without fault in creating the crisis that requires ex parte 6 relief, or . . . the crisis occurred as a result of excusable neglect.” Mission Power Eng’g Co. v. 7 Continental Cas. Co. (Mission Power), 883 F. Supp. 488, 492 (C.D. Cal. 1995); see also Erichsen 8 v. Cty. of Orange, 677 F. App’x 379, 380 (9th Cir. 2017) (affirming determination that moving 9 parties failed to meet the “threshold requirement” for ex parte relief because “they did not 10 establish they were ‘without fault in creating the crisis that requires ex parte relief’”). 11 Local Rule 144(c) further provides: 12 The Court may, in its discretion, grant an initial extension ex parte upon the affidavit of counsel that a stipulation extending time cannot 13 reasonably be obtained, explaining the reasons why such a stipulation cannot be obtained and the reasons why the extension is 14 necessary. Except for one such initial extension, ex parte applications for extension of time are not ordinarily granted. 15 16 E.D. Cal. L.R. 144(c). 17 B. Modification of Scheduling Order 18 Under Rule 16, the Court is required to issue a scheduling order as soon as practicable, 19 and the order “must limit the time to join other parties, amend the pleadings, complete discovery, 20 and file motions.” Fed. R. Civ. P. 16(b)(3)(A). Once a scheduling order has been filed pursuant 21 to Rule 16, the “schedule may be modified only for good cause and with the judge’s consent.” 22 Fed. R. Civ. P. 16(b)(4). 23 The “good cause” standard “primarily considers the diligence of the party seeking the 24 amendment,” and the Court “may modify the pretrial schedule if it cannot reasonably be met 25 despite the diligence of the party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 26 975 F.2d 604, 609 (9th Cir. 1992) (internal citations and quotations omitted); see also Zivkovic v. 27 S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Johnson, 975 F.2d at 609). 28 However, “carelessness is not compatible with a finding of diligence and offers no reason for a 1 grant of relief.” Johnson, 975 F.2d at 609 (compiling cases). Thus, if the party seeking the 2 modification “was not diligent, the inquiry should end.” Id. “The prejudice to opposing parties, 3 if any, may provide additional grounds for denying the motion, but the focus is on the moving 4 party’s reason for seeking the modification.” Atayde v. Napa State Hosp., No. 116-CV-00398- 5 DAD-SAB, 2020 WL 1046830, at *3 (E.D. Cal. Mar. 4, 2020), reconsideration denied, No. 1:16- 6 CV-00398-DAD-SAB, 2020 WL 1937395 (E.D. Cal. Apr. 22, 2020). 7 III. ANALYSIS 8 In the instant application, Defendant seeks to extend the following deadlines by six 9 months: (1) the deadline to complete discovery, which is currently set for June 11, 2021; (2) the 10 deadline to designate experts, which is currently set for August 12, 2021; and (3) the deadline to 11 file dispositive motions, which is currently set for December 16, 2021. (ECF No. 81.) 12 Defendant argues good cause exists to grant the modification in light of Plaintiff’s 13 repeated failure to produce discovery responses in a timely manner, or sometimes at all.1 As a 14 result of Plaintiff’s untimely production of responses, Defendant did not learn of a key witness — 15 Kim Harrison, an individual who Plaintiff’s recently-received discovery responses suggest is the 16 actual primary percipient witness for the majority of allegations tendered by Plaintiff in this case 17 — until recently, thus necessitating the request for additional time to seek further discovery from 18 Plaintiff. (ECF No. 81 at 4, 6–7.) Defendant additionally asserts the need for a modification is 19 exacerbated by Ms. Harrison’s current refusal to comply with her deposition subpoena. (Id. at 20 10.) Finally, Defendant maintains the instant application was diligently pursued once it became 21 apparent that the delays caused by Plaintiff would prevent Defendant from obtaining necessary 22 /// 23 24 1 Indeed, the application details the varied unsuccessful meet and confer attempts Defendant made to obtain requested discovery from Plaintiff that ultimately resulted in receipt of 25 Plaintiff’s Rule 26 initial disclosures nearly a year after they were due, and interrogatory and production responses (the adequacy of which appears to remain at dispute) approximately six 26 months after they were due — the latter of which were apparently only produced after the 27 magistrate judge’s granting of two separate motions to compel and upon threat of further monetary sanctions being awarded to Defendant. (ECF No. 81 at 2–3, 6; see also ECF Nos. 78, 28 80.) 1 discovery prior to the discovery deadlines. (Id. at 11.) The Court finds the relief Defendant seeks 2 is warranted. 3 As an initial matter, Defendant has met the threshold requirement to seek ex parte relief. 4 Namely, the application and supporting declaration of counsel demonstrate Defendant will be 5 irreparably prejudiced if the litigation continues towards trial without Defendant having the 6 opportunity to obtain relevant discovery from a key witness. Mission Power, 883 F. Supp. at 492; 7 Erichsen, 677 F. App’x at 380; E.D. Cal. L.R. 144(c). Further, the need to seek modification ex 8 parte was not a situation created by Defendant but was caused by Plaintiff’s pervasive 9 recalcitrance in providing adequate discovery responses. Id. 10 Based on the same circumstances, the Court finds Defendant has met its burden to 11 demonstrate diligence in seeking discovery. When Plaintiff failed to respond to Defendant’s Rule 12 26 meet and confer efforts, Defendant unilaterally filed a Rule 26 report so that the Court could 13 issue a Pretrial Scheduling Order. (See ECF No. 70.) Defendant’s application demonstrates it 14 diligently requested discovery by submitting timely requests, engaged in protracted meet and 15 confer attempts with Plaintiff to obtain the discovery it needed, and ultimately moved to compel 16 production when Plaintiff’s responses were deficient. (See ECF No. 81 at 8–11; see also ECF 17 Nos. 72, 77, 79.) Finally, when Plaintiff continued to provide delayed or insufficient discovery 18 responses after Defendant’s motions to compel were granted and the recently-identified percipient 19 witness refused to comply with her deposition subpoena, the need to extend the discovery 20 deadlines became apparent and Defendant swiftly sought the instant relief prior to the close of the 21 discovery deadline. (ECF No. 81 at 10–11.) Based on this record, the Court finds good cause 22 exists to modify the schedule. Zivkovic, 302 F.3d at 1087; Johnson, 975 F.2d at 609. 23 IV. CONCLUSION 24 For the foregoing reasons, the Court hereby GRANTS Defendant’s Ex Parte Application 25 to Modify the Scheduling Order. (ECF No. 81.) The Pretrial Scheduling Order (ECF No. 71) is 26 modified as follows: 27 1. The deadline to complete discovery, which is currently set for June 11, 2021, is 28 continued to December 10, 2021; 1 2. The deadline to designate experts, which is currently set for August 12, 2021, is 2 | continued to February 11, 2022; and 3 3. The deadline to file dispositive motions, which is currently set for December 16, 2021, 4 | is continued to June 16, 2022. 5 IT IS SO ORDERED. 6 | DATED: June 8, 2021 “ ! Vu 9 Troy L. Nuhlep ] United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28