AFC Realty Capital, Inc. v. Dale ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AFC REALTY CAPITAL, INC., Case No. 2:18-cv-02389-MCE-JDP 12 Plaintiff, 13 v. ORDER 14 SUNDEEP S. DALE; ROHIT RANCHHOD; DALE INVESTMENTS, 15 LLC; SUNDEEP DALE, LLC; CALIFORNIA FRUIT BUILDING, LLC; 16 and AMERICAN HOSPITALITY SERVICES, INC., 17 Defendants. 18 19 Plaintiff AFC Realty Capital, Inc. (“Plaintiff”) filed the operative Complaint against 20 Defendants Sundeep S. Dale; Rohit Ranchhod; Dale Investments, LLC; California Fruit 21 Building, LLC; and American Hospitality Services, Inc. (collectively “Defendants”). 22 Presently before the Court is Plaintiff’s Motion for Relief (ECF No. 38) from the Court’s 23 October 13, 2020 Third Order. Plaintiff seeks relief, pursuant to Federal of Civil 24 Procedure 60(b),1 from a typographical error that it claims extended the time for 25 completing fact discovery a year longer than the parties intended. 26 /// 27 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless 28 otherwise noted. 1 Rule 60(b) permits a party to seek relief from an order entered due to “mistake, 2 inadvertence, surprise or excusable neglect.” Because the provision is remedial in 3 nature, it must be “liberally applied”. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 4 1262 (9th Cir. 2010). 5 According to Daniel Foster, counsel for Plaintiff in these proceedings, when he 6 contacted defense counsel Jason Hoffman in September of 2020 to get dates for 7 deposing individual Defendants that October, Hoffman said he was “slammed” because 8 of already scheduled multi-party depositions. As a result, according to Foster, he 9 suggested that the date for fact discovery be extended and Hoffman agreed. Decl. of 10 Daniel J. Foster, ECF No. 38-2, ¶ 4. As a result, by email dated September 30, 2020, 11 Foster told Hoffman that he would “put something together for [his] review” but did not 12 specify any particular date. Id. at Ex. C. 13 The resulting stipulation, as prepared by Foster, extended the date for percipient 14 witness discovery from October 16, 2020, to December 16, 2021, a period of fourteen 15 months. Both counsel signed off on that stipulation on or about October 5, 2020 and, as 16 indicated above, it was approved by the Court on October 13, 2020. After receiving the 17 Court’s resulting Order, Foster claims he realized the stipulation contained a scrivener’s 18 error in that the December 16, 2021, date for completing discovery should in fact have 19 been December 16, 2020. He explains what happened as follows: 20 In drafting the third stipulation, I mistakenly and inadvertently wrote the year 2021, instead of 2020, in connection with the 21 proposed new discovery completion deadline. I initially pondered extending the discovery cutoff to January 16, 2021, 22 but then elected to switch it to December, 2020. However, I mistakenly failed to switch the year from 2021 to 2020 and 23 wrote December 16, 2021 instead of the intended date of December 16, 2020. 24 25 Id. at ¶ 6. 26 Foster claims he never would have agreed to a fourteen-month extension and had 27 only offered the additional two months as a professional courtesy to Hoffman’s schedule 28 in October 2020. When Foster had his paralegal contact attorney Hoffman, however, 1 Hoffman claimed he never would have agreed to the two-month extension. Id. at Ex. E. 2 Subsequent emails show that when Foster proposed modifying the allegedly erroneous 3 extension to January or February 2021, Hoffman indicated that was not acceptable and 4 instead suggested a cut-off date in June or July 2021. On October 27, 2020, an 5 impasse was reached when Foster stated he would have to file a motion to modify the 6 existing order. Id. Plaintiff’s Motion was subsequently filed on December 4, 2020. 7 At least on the basis of his declaration, attorney Foster’s error in transposing 8 “2021” as opposed to “2020” appears uncontroverted. The fact remains, however, that 9 there is no evidence that he discussed a specific new date for completing fact discovery 10 beyond sending over the proposed stipulation for opposing counsel for his review. 11 Given that omission, it is equally hard to question attorney Hoffman’s claim that he never 12 would have agreed to a two-month extension had it been offered. Hoffman claims that 13 one of his clients, Defendant Rohit Ranchhod, had not yet recovered from a heart attack 14 at the end of 2020 and that both that incapacity and continuing COVID-19 protocols 15 made scheduling depositions problematic during that short time proposed by Foster, 16 even assuming the January or February 2021 compromise date that Foster offered. See 17 Defs.’ Opp’n, ECF No. 40, 1:3-12. 18 In determining whether neglect on the part of an attorney is excusable for 19 purposes of Rule 60(b), courts must engage in an equitable inquiry that balances the 20 danger of prejudice to the opposing party, the length of the delay involved and its impact 21 upon the proceedings, the reason for the delay, and whether the party seeking relief 22 acted in good faith. Ahanchian, 624 F.3d at 1262. On its facts, Ahanchian is 23 distinguishable because it involved a late-filed opposition to a motion for summary 24 judgment, with the Ninth Circuit finding that the defendant could not have been 25 prejudiced by permitting the opposition to have been filed three days late (the district 26 court had denied permission for a late filing and granted summary judgment in the 27 absence of an opposition). While this case, unlike Ahanchian, involves counsel’s 28 alleged reliance on the mistaken date and his claim he will indeed be prejudiced if fact 1 | discovery is shortened, Ahanchian is still important in finding that a calendaring error can 2 || indeed constitute excusable neglect under Rule 60(b). See id. 3 Having examined the papers submitted and supporting evidence, this Court 4 || concludes that attorney Foster acted in good faith in submitting a stipulation that 5 || mistakenly referred to December 16, 2021, as opposed to December 16, 2020. Since 6 | Foster now attempts to advance the mistaken date in rectifying his error, there is no real 7 | delay here for purposes of the Ahanchian balancing test enumerated above. In making 8 || afinal determination as to excusable neglect, that leaves the question of whether 9 | attorney Hoffman will be prejudiced if the time now permitted for fact discovery under the 10 | Court’s currently operative October 13, 2020 is abbreviated. 11 As indicated above, attorney Hoffman previously indicated that moving the 12 | deadline to June or July of 2021 was acceptable, and consequently he cannot 13 || reasonably claim to be prejudiced by an abbreviated deadline after that time. The Court 14 || therefore finds that excusable neglect has been established for purposes of granting 15 | relief at the present time. Plaintiff's Motion (ECF No. 38) is consequently GRANTED to 16 | the extent that the new deadline for completing percipient witness discovery shall be 17 || shortened from December 16, 2021 to October 15, 2021.2 The remaining provisions 18 | contained in the Court’s Third Stipulation and Order to Modify Pretrial Scheduling Order 19 | (ECF No. 37), however, shall remain in effect. 20 IT IS SO ORDERED. 21 | Dated: August 16, 2021 22 J Lat LEK ee NK 8 SENIOR UNITED STATES DISTRICT JUDGE 24 25 26 27 28 | this matter on the briefs in accordance with ED. Local le 2309.