Durben v. State Farm General Insurance Company ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD DURBEN and REBECCA No. 2:16-cv-00754-MCE-EFB DURBEN, 12 Plaintiffs, 13 MEMORANDUM AND ORDER v. 14 STATE FARM GENERAL 15 INSURANCE COMPANY and BRENDA ERICKSEN, 16 Defendants. 17 18 Through the motion presently before the Court, Plaintiffs Donald and Rebecca 19 Durben (“Plaintiffs”) seek to reopen discovery for six months and ask that the Court’s 20 pretrial scheduling order be modified to that effect. ECF No. 32. For the reasons stated 21 below, Plaintiffs’ Motion is DENIED.1 22 23 BACKGROUND 24 25 In February 2016, Plaintiffs commenced this action in Shasta County Superior 26 Court against Defendant State Farm General Insurance Company (“Defendant”) and its 27 1 Because oral argument would not have been of material assistance, the Court ordered these 28 matters submitted on the briefs. E.D. Cal. Local Rule 230(g). 1 employee Brenda Ericksen, alleging various causes of action related to Defendant’s 2 alleged mishandling of Plaintiffs’ insurance claim following a home fire. Plaintiffs were 3 formerly represented by Albert Boasberg. On April 13, 2016, Defendant removed the 4 action to this Court. ECF No. 1. An Initial Pretrial Scheduling Order (“PTSO”) was 5 issued that same day. ECF No. 2. 6 Defendant and Ms. Ericksen filed a motion to dismiss certain causes of action 7 under Federal Rule of Civil Procedure 12(b)(6), and Mr. Boasberg filed an opposition on 8 Plaintiffs’ behalf. ECF Nos. 4, 5. On August 1, 2016, this Court granted Defendants’ 9 motion, dismissing Ms. Ericksen with prejudice and dismissing two causes of action for 10 misrepresentation with leave to amend. ECF No. 8. Mr. Boasberg subsequently filed 11 Plaintiffs’ First Amended Complaint, which omitted the misrepresentation claims. ECF 12 No. 9. 13 In January 2017, the parties served initial disclosures, and Defendant served 14 interrogatories and requests for production. Collier Decl., ECF No. 34-1, at 2. 15 Mr. Boasberg thereafter filed Plaintiffs’ Second Amended Complaint. ECF No. 15. 16 Subsequently, on July 20, 2017, Mr. Boasberg served Plaintiffs’ verified responses to 17 interrogatories, and, on August 9, 2017, he personally delivered 9,878 pages of 18 Plaintiffs’ documents to Defendant’s counsel. Collier Decl., ECF No. 34-1, at 2. Over 19 the course of two days later that month, Mr. Boasberg defended Plaintiffs’ depositions 20 and produced more documents. Id. 21 On October 10, 2017, Defendant filed its motion for summary judgment. ECF 22 No. 17. At the end of that month, Mr. Boasberg filed Plaintiffs’ opposition, which 23 included declarations from Plaintiffs’ public insurance adjuster and their architect. ECF 24 No. 19. In September of the following year, the Court granted in part and denied in part 25 Defendant’s motion for summary judgment. ECF No. 22. 26 Shortly before that, however, Mr. Boasberg was convicted, by plea, in California 27 Superior Court, of theft from an elder by a caretaker and insurance fraud. Ex. A, Def.’s 28 /// 1 Request for Judicial Notice, ECF No. 34-2.2 In September of that same year, Plaintiffs 2 learned that Mr. Boasberg would no longer represent them. Pls.’ Mot. Modification, ECF 3 No. 32-1, at 3. On October 11, 2018, Defendant’s counsel notified the Court of 4 Mr. Boasberg’s incarceration. ECF No. 23. The following August, Plaintiffs’ current 5 attorney, Robert Knox, was substituted in as counsel of record. ECF No. 29. On 6 August 21, 2019, Defendant’s counsel provided Mr. Knox with over 55,000 pages of 7 documents, including copies of all discovery and correspondence exchanged between 8 Mr. Boasberg and Defendant’s counsel. First Joint Status Report, ECF No. 30, at 2. On 9 September 26, 2019, Plaintiffs filed the present Motion, asking the Court to reopen the 10 discovery period for an additional six months due to Mr. Boasberg’s gross negligence in 11 handling Plaintiffs’ case. 12 13 STANDARD 14 15 Generally, the Court is required to enter a pretrial scheduling order within 16 120 days of the filing of the complaint. Fed. R. Civ. P. 16(b). The scheduling order 17 “controls the subsequent course of the action” unless modified by the Court. 18 Fed. R. Civ. P. 16(e). Orders entered before the final pretrial conference may be 19 modified upon a showing of “good cause,” Fed. R. Civ. P. 16(b), but orders “following a 20 final pretrial conference shall be modified only to prevent manifest injustice.” 21 Fed. R. Civ. P. 16(e); see also Johnson v. Mammoth Recreations, 975 F.2d 604, 608 22 (9th Cir. 1992). 23 Rule 16(b)’s “good cause” standard primarily considers the diligence of the party 24 seeking the amendment. Johnson, 975 F.2d at 609. The district court may modify the 25 pretrial schedule “if it cannot reasonably be met despite the diligence of the party 26 seeking the extension.” Id.; Fed. R. Civ. P. 16 advisory committee’s notes (1983 27 2 Defendant’s Request for Judicial Notice under Federal Rule of Evidence 201 is unopposed and 28 is GRANTED. 1 amendment). Moreover, carelessness is not compatible with a finding of diligence and 2 offers no reason for a grant of relief. Johnson, 975 F.2d at 609. Although the existence 3 or degree of prejudice to the party opposing the modification might supply additional 4 reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for 5 seeking modification. Id. (citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 6 141 (D. Me. 1985)). If the moving party was not diligent, the Court’s inquiry should end. 7 Id. 8 9 ANALYSIS 10 11 Plaintiffs argue Mr. Boasberg’s gross negligence satisfies Rule 16’s good cause 12 requirement because he failed to adequately prosecute Plaintiffs’ case, such as taking 13 depositions, disclosing expert witnesses, and gathering evidence. ECF No. 32. As a 14 result, Plaintiffs ask the Court to start discovery over again. See Pls.’ Reply, ECF No. 15 35, at 9. When a party alleges attorney negligence as the basis for good cause, more 16 than ordinary negligence is required: if the party can show gross negligence or 17 abandonment, then modification of the PTSO is warranted. Matrix Motor Co., Inc. v. 18 Toyota Jidosha Kabushiki Kaisha, 218 F.R.D. 667, 674 (C.D. Cal. 2003). 19 Plaintiffs’ Motion is based on the assertion that Mr. Boasberg provided inadequate 20 representation. However, Plaintiffs’ dissatisfaction with Mr. Boasberg’s handling of the 21 case is insufficient under Rule 16. See Johnson, 975 F.2d at 609; see also Reinsdorf v. 22 Skechers U.S.A., Inc., 296 F.R.D. 604, 614 (C.D. Cal. 2013) (“Nor is the hiring of new 23 counsel sufficient in itself to warrant reopening discovery to correct prior counsel’s 24 purported errors.”). 25 Nor do Plaintiffs sufficiently contend that they were abandoned. Although 26 Mr. Boasberg did little to further Plaintiffs’ case, he still made appearances, filed 27 pleadings, and opposed motions. Cf. Comm. Dental Servs. v. Tani, 282 F.3d 1164, 28 1171 (9th Cir. 2002) (finding attorney “virtually abandoned” his client’s case by failing to 1 | oppose motions and attend hearings). Therefore, Plaintiffs’ argument is unavailing. See 2 | id. (“[C]onduct on the part of a client’s alleged representative that results in the client’s 3 | receiving practically no representation at all clearly constitutes gross negligence[.]”). 4 Furthermore, Plaintiffs were not diligent in seeking modification of the PTSO 5 | because discovery ended over two and a half years ago and the case has progressed 6 | beyond the summary judgment stage. Because Plaintiffs fail to show good cause under 7 | Rule 16(b), their Motion is DENIED. 8 9 CONCLUSION 10 11 For all the foregoing reasons, Plaintiffs’ Motion for Modification of the Initial 12 | Pretrial Scheduling Order, ECF No. 32, is DENIED. The Court’s previously sanctioned 13 | deadlines shall remain in effect, and without any change. 14 Further, the parties were required to submit a Joint Status Report no later than 15 | December 27, 2019, but failed to do so. ECF No. 31. The parties are hereby ordered to 16 | file a Joint Status Report not later than sixty (60) days of the electronic filing of this 17 | Order. 18 IT 1S SO ORDERED. 19 | Dated: February 18, 2020 20 UNITED STATES DISTRI 22 23 24 25 26 27 28