Zions Bancorporation, N.A. v. JPMorgan Chase Bank, N.A. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ZIONS BANCORPORATION, N.A., Case No.: 3:20-cv-2048-H-AHG 12 Plaintiff, ORDER: 13 v. (1) GRANTING JOINT MOTION FOR 14 JPMORGAN CHASE BANK, N.A., CONTINUANCE OF DATES IN 15 Defendant. SCHEDULING ORDER; and 16 (2) DENYING AS MOOT REQUEST 17 TO EXTEND DEADLINE TO RAISE DISCOVERY DISPUTE WITH THE 18 COURT 19 [ECF No. 68] 20 21 22 23 Before the Court is the parties’ Joint Motion for Further Extension of Deadlines Set 24 Forth in Scheduling Order and Extension of the 45-Day Deadline to Report Discovery 25 Disputes. ECF No. 68. The parties seek to extend the dates in the case schedule, as set forth 26 in the amended Scheduling Order (ECF No. 67), by approximately four months each. 27 Additionally, the parties request an extension of the 45-day deadline to bring discovery 28 disputes to the attention of the Court with respect to Defendant’s written responses to 1 Plaintiff’s discovery requests, which responses were served on August 5, 2022. ECF No. 2 68 at 12. 3 I. Motion to Amend Scheduling Order 4 Under Fed. R. Civ. P 16(b)(4), “[a] schedule may be modified only for good cause 5 and with the judge’s consent.” “Good cause” is a non-rigorous standard that has been 6 construed broadly across procedural and statutory contexts. Ahanchian v. Xenon Pictures, 7 Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The good cause standard focuses on the diligence 8 of the party seeking to amend the scheduling order and the reasons for seeking 9 modification. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 10 “[T]he court may modify the schedule on a showing of good cause if it cannot reasonably 11 be met despite the diligence of the party seeking the extension.” Fed. R. Civ. P. 16, advisory 12 committee’s notes to 1983 amendment. Therefore, “a party demonstrates good cause by 13 acting diligently to meet the original deadlines set forth by the court.” Merck v. Swift 14 Transportation Co., No. CV-16-01103-PHX-ROS, 2018 WL 4492362, at *2 (D. Ariz. 15 Sept. 19, 2018). 16 Notably, one of the deadlines that the parties wish to extend is the September 6, 2022 17 deadline to designate experts, which passed prior to the filing of the instant motion. See 18 ECF No. 68 at 7, 11-12. Requests for extensions of time made after the applicable deadline 19 has passed are analyzed under a different standard. In addition to considering whether the 20 movant has established good cause for such an extension, the Court may extend a deadline 21 that has already passed “if the party failed to act because of excusable neglect.” Fed. R. 22 Civ. P. 6(b)(1)(B). Excusable neglect “encompasses both simple, faultless omissions to act 23 and, more commonly, omissions caused by carelessness.” Pioneer Inv. Servs. Co. v. 24 Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993). “To determine whether a party’s 25 failure to meet a deadline constitutes ‘excusable neglect,’ courts must apply a four-factor 26 equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length 27 of the delay and its potential impact on the proceedings; (3) the reason for the delay; and 28 1 (4) whether the movant acted in good faith.” Ahanchian, 624 F.3d at 1261 (citations 2 omitted). 3 On July 5, 2022, the Court granted a previous joint motion by the parties to extend 4 the deadlines in the case schedule by approximately three months each. ECF No. 67. Here, 5 the parties give many of the same reasons provided in support of that previous request. 6 Namely, the parties state that Plaintiff requires more time to review and produce responsive 7 documents and to prepare a privilege log in response to Defendant’s First Requests for 8 Production of Documents and Things, served on November 3, 2021, due in part to 9 Plaintiff’s counsel’s recent bout with COVID-19. See ECF No. 65 at 9, ECF No. 68 at 8- 10 9. Additionally, as before, Defendant states that it needs more time to respond to some of 11 Plaintiff’s discovery requests because many of the responsive documents pertain to the 12 separate Brazilian arbitration and litigation and are in Portuguese, and may not have an 13 English translation, requiring additional review. Defendant also reiterates the reason it 14 previously gave that it needs more time to determine whether certain internal 15 communications related to the Brazilian litigation that are sought by Plaintiff in this case 16 are privileged in whole or in part, and defense counsel anticipates that the privilege review 17 and redaction process may take several months. See ECF No. 65 at 9-10; ECF No. 68 at 9- 18 10. Finally, the parties indicate that they still have not taken any of the at least 15 party and 19 third-party depositions that they need to take to prepare their respective motions for 20 summary judgment, which was a reason given for the requested three-month extension in 21 the previous joint motion as well. ECF No. 65 at 10; ECF No. 68 at 10. 22 Although the Court is not pleased to see so many indicia that the parties have made 23 little to no progress on written discovery or depositions since their last extension request 24 was granted, the parties do include updated information in the motion before the Court 25 related to the international discovery process in Brazil. For example, the parties explain 26 that Defendant’s Letters of Request seeking documents from Gas Verde and Banco 27 Bradesco were recently granted by the Brazilian Superior Court of Justice on 28 August 19, 2022, and that enforcement of the letters of request will occur before the federal 1 courts of Sao Paulo and Rio de Janeiro, who are responsible for instructing those entities 2 to produce records. ECF No. 68 at 11. Additionally, the parties explain that the parties 3 unexpectedly encountered a snag with a scheduled deposition of a Gas Verde witness when 4 they learned that a virtual deposition would potentially violate Brazilian law, which 5 requires that depositions by oral testimony for use in foreign litigation be conducted by a 6 Brazilian judge. Id. The parties have thus agreed to pursue an alternative process for 7 obtaining oral testimony of Gas Verde, but that process will be time-intensive and will 8 require approval by this Court of additional letters of request. Id. at 11. 9 Having thoroughly considered the parties’ motion, and despite its misgivings, the 10 Court finds that the parties have established good cause to extend the case schedule in light 11 of the complexity of the international discovery process. However, the Court does not look 12 favorably on the parties’ failure to make any substantial progress towards completing other 13 discovery in the case since the last extension was granted. Therefore, the parties are 14 cautioned that the Court is unlikely to grant any further extensions of the case 15 schedule. The Court will only consider further extension requests if the parties make a 16 much stronger showing of diligence to meet the existing deadlines and far more substantial 17 progress in completing the discovery they need, and even under such circumstances, the 18 Court is disinclined to allow the parties more time than the 499 days of discovery they have 19 been allotted between the October 13, 2021 Case Management Conference and the new 20 fact and expert discovery cutoff of February 24, 2023. 21 With respect to the request to extend the expert designation deadline, which passed 22 9 days before the parties filed the joint motion to extend it, the Court notes that this is the 23 second time the parties have requested an extension of this deadline after it already passed. 24 The Court does not look favorably on that repeated error either. Nonetheless, the Court 25 finds that this repeated error is the result of carelessness rather than bad faith. Therefore, 26 the Court once more finds that the four-factor test weighs in favor of finding that the 27 parties’ failure to request an extension before the deadline passed was the result of 28 excusable neglect. As before, both parties have agreed and move to extend the deadline, 1 making the first factor of “prejudice to the opposing party” null. As for the length of the 2 delay, the Court agrees that in light of the extension of all subsequent deadlines in the case 3 schedule, there will be no negative impact on the proceedings by granting an extension of 4 the expert designation deadline. Addressing the third and fourth factors, which concern the 5 reason for the delay and whether the movant acted in good faith, the parties explain that 6 they “have been working diligently over the last few months to produce documents and 7 have made good progress in doing so” but despite their good-faith efforts, “significant 8 discovery has yet to be completed, including the international discovery” sought by 9 Defendant. ECF No. 68 at 11-12. 10 Notably, the parties appear to misconstrue the meaning of the third factor, i.e., the 11 “reason for the delay,” as referring to the reason underlying the need for the requested 12 continuance rather than the reason why counsel failed to timely make the request. See, e.g., 13 Pioneer, 507 U.S. at 385-89 (explaining that a finding of “excusable neglect” encompasses 14 acts of carelessness by counsel, and thus, when considering whether the third factor weighs 15 in favor of a finding of excusable neglect, it is not necessary that the “reason for the delay” 16 be a reason outside of the movant’s control). However, as stated, the Court finds that the 17 reason for the delay here is counsel’s carelessness, and as the Supreme Court explained in 18 Pioneer, out-of-time filings delayed by “excusable neglect” most commonly include 19 “omissions caused by carelessness” and, accordingly, the Court will not deny the parties’ 20 request to extend the expert designation deadline merely because counsel acted carelessly 21 in lodging the request after the deadline passed. See 507 U.S. at 388. Because the other 22 factors weigh in favor of granting the extension of the expert designation deadline, the 23 Court finds good cause to grant the request to extend the case schedule in full. 24 Thus, upon due consideration of the parties’ Joint Motion, the Court finds good 25 cause to GRANT the request to continue the dates and deadlines in the case schedule. The 26 Scheduling Order is hereby AMENDED as follows: 27 1. The parties must designate their respective experts in writing by 28 September 6, 2022. The parties must identify any person who may be used at trial to 1 present evidence pursuant to Rules 702, 703 or 705 of the Federal Rules of Evidence. This 2 requirement is not limited to retained experts. The date for exchange of rebuttal experts 3 must be by October 11, 2022. Written designations must include the name, address and 4 telephone number of the expert and a reasonable summary of the testimony the expert is 5 expected to provide. The list must also include the normal rates the expert charges for 6 deposition and trial testimony. 7 2. By January 6, 2023, each party must comply with the disclosure provisions 8 in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This disclosure 9 requirement applies to all persons retained or specially employed to provide expert 10 testimony, or whose duties as an employee of the party regularly involve the giving of 11 expert testimony. Except as provided in the paragraph below, any party that fails to make 12 these disclosures will not be permitted to use evidence or testimony not disclosed at any 13 hearing or at the time of trial, absent substantial justification. Additionally, the Court may 14 impose sanctions as permitted by Federal Rule of Civil Procedure 37(c). 15 3. Any party must supplement its disclosure regarding contradictory or rebuttal 16 evidence under Federal Rule of Civil Procedure 26(a)(2)(D) by February 10, 2023. 17 4. All parties must complete all fact and expert discovery by 18 February 24, 2023. “Completed” means that all discovery under Rules 30-36 of the 19 Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated 20 a sufficient period of time in advance of the cut-off date, so that it may be completed by 21 the cut-off date, taking into account the times for service, notice and response as set forth 22 in the Federal Rules of Civil Procedure. Counsel shall promptly and in good faith meet 23 and confer with regard to all discovery disputes in compliance with Local Rule 24 26.1(a). A failure to comply in this regard will result in a waiver of a party’s discovery 25 issue. Absent an order of the court, no stipulation continuing or altering this 26 requirement will be recognized by the court. The Court expects counsel to make every 27 effort to resolve all disputes without court intervention through the meet and confer 28 process. If the parties reach an impasse on any discovery issue, the movant must e-mail 1 chambers at efile_goddard@casd.uscourts.gov no later than 45 days after the date of 2 service of the written discovery response that is in dispute, seeking a telephonic conference 3 with the Court to discuss the discovery dispute. The email must include: (1) at least three 4 proposed times mutually agreed upon by the parties for the telephonic conference; (2) a 5 neutral statement of the dispute; and (3) one sentence describing (not arguing) each parties’ 6 position. The movant must copy opposing counsel on the email. No discovery motion may 7 be filed until the Court has conducted its pre-motion telephonic conference, unless the 8 movant has obtained leave of Court. All parties are ordered to read and to fully comply 9 with the Chambers Rules of Magistrate Judge Allison H. Goddard. 10 5. Failure to comply with this section or any other discovery order of the Court 11 may result in the sanctions provided for in Federal Rule of Civil Procedure 37, including 12 prohibition on the introduction of experts or other designated matters in evidence. 13 6. All other pretrial motions must be filed by March 9, 2023. Counsel for the 14 moving party must obtain a motion hearing date from the law clerk of the judge who will 15 hear the motion. The time between the date you request a motion date and the hearing date 16 may vary from one district judge to another. Please plan accordingly. Failure to make a 17 timely request for a motion date may result in the motion not being heard. Motions in 18 limine are to be filed as directed by the Court. 19 7. A Mandatory Settlement Conference shall be conducted on 20 April 26, 20231 at 9:30 a.m. in the chambers of Magistrate Judge Allison H. Goddard. 21 Plaintiff must serve on Defendant a written settlement proposal, which must include a 22 specific demand amount, no later than April 5, 2023. The defendant must respond to the 23 plaintiff in writing with a specific offer amount prior to the Meet and Confer discussion. 24 The parties should not file or otherwise copy the Court on these exchanges. Rather, the 25 26 27 1 The parties requested that the MSC be rescheduled to April 7, 2023, a date that is not available on the Court’s calendar. The Court has thus continued the MSC to a date that 28 1 parties must include their written settlement proposals in their respective Settlement 2 Conference Statements to the Court. Counsel for the parties must meet and confer in person 3 or by phone no later than April 12, 2023. 4 Each party must prepare a Settlement Conference Statement, which will be served 5 on opposing counsel and lodged with the Court no later than April 19, 2023. The Statement 6 must be lodged in .pdf format via email to efile_goddard@casd.uscourts.gov (not filed). 7 The substance of the Settlement Conference Statement must comply fully with Judge 8 Goddard’s Mandatory Settlement Conference Rules (located at 9 https://www.casd.uscourts.gov/Judges/goddard/docs/Goddard%20Mandatory%20Settlem 10 ent%20Conference%20Rules.pdf). Each party may also prepare an optional Confidential 11 Settlement Letter for the Court’s review only, to be lodged with the Court no later than 12 April 19, 2023. The Letter must be lodged in .pdf format via email to 13 efile_goddard@casd.uscourts.gov (not filed). Should a party choose to prepare a Letter, 14 the substance of the Settlement Conference Letter must comply fully with Judge Goddard’s 15 Mandatory Settlement Conference Rules. All parties are ordered to read and to fully 16 comply with the Chambers Rules and Mandatory Settlement Conference Rules of 17 Magistrate Judge Allison H. Goddard. 18 8. Counsel must file their memoranda of contentions of fact and law and take 19 any other action required by Civil Local Rule 16.1(f)(2) by May 17, 2023. 20 9. Counsel must comply with the pretrial disclosure requirements of Federal 21 Rule of Civil Procedure 26(a)(3) by May 17, 2023. Failure to comply with these disclosure 22 requirements may result in evidence preclusion or other sanctions under Federal Rule of 23 Civil Procedure 37. 24 10. Counsel must meet and take the action required by Civil Local Rule 16.1(f)(4) 25 by May 24, 2023. At this meeting, counsel must discuss and attempt to enter into 26 stipulations and agreements simplifying the triable issues. Counsel must exchange copies 27 and/or display all exhibits other than those to be used for impeachment. The exhibits must 28 be prepared in accordance with Civil Local Rule 16.1(f)(4)(c). Counsel must note any 1 objections they have to any other parties’ pretrial disclosures under Federal Rule of Civil 2 Procedure 26(a)(3). Counsel must cooperate in the preparation of the proposed pretrial 3 conference order. 4 11. Counsel for plaintiff will be responsible for preparing the pretrial order and 5 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By 6 May 31, 2023, plaintiff’s counsel must provide opposing counsel with the proposed pretrial 7 order for review and approval. Opposing counsel must communicate promptly with 8 plaintiff’s counsel concerning any objections to form or content of the pretrial order. Both 9 parties must promptly attempt to resolve their differences, if any, concerning the order. 10 12. The proposed final pretrial conference order, including objections to any other 11 parties’ Federal Rule of Civil Procedure 26(a)(3) pretrial disclosures must be prepared, 12 served, and lodged with the assigned district judge by June 7, 2023 in the form prescribed 13 in and in compliance with Civil Local Rule 16.1(f)(6). 14 13. The final pretrial conference is scheduled on the calendar of the Honorable 15 Marilyn L. Huff on June 12, 2023 at 10:30 a.m. 16 14. Pursuant to Civil Local Rule 7.1(h), briefs or memoranda in support of or in 17 opposition to any pending motion must not exceed twenty-five (25) pages in length without 18 leave of a district court judge. Reply memorandum must not exceed ten (10) pages without 19 leave of a district court judge. Briefs and memoranda exceeding ten (10) pages in length 20 must have a table of contents and a table of authorities cited. 21 II. Motion to Extend Deadline to Bring Discovery Dispute to the Court 22 In addition to requesting a continuance of the deadlines in the case schedule, the 23 parties further request an extension of the deadline for raising discovery disputes with the 24 Court. ECF No. 68 at 12-13. Pursuant to the Court’s Scheduling Order and the 25 undersigned’s Chambers Rules, if the parties reach an impasse on any discovery issue, the 26 movant must email chambers at efile_goddard@casd.uscourts.gov no later than 45 days 27 after the date of service of the written discovery response that is in dispute. 28 Here, Defendant served its written responses to Plaintiff’s discovery requests on 1 |} August 5, 2022, and counsel have been meeting and conferring regarding certain of the 2 responses since August 24, 2022. ECF No. 68 at 12. Plaintiff asks that its deadline to bring 3 dispute to the Court’s attention be extended by 30 days to allow the parties more time 4 resolve their disputes regarding Defendant’s responses informally. /d. 5 The Court considers the deadline to bring to the Court’s attention any disputes 6 related to Defendant’s August 5, 2022 responses to Plaintiff's written discovery requests 7 || to be tolled by virtue of the parties having raised the issue in the Joint Motion before the 8 ||Court, despite their desire to continue to meet and confer before requesting Court 9 ||intervention. Accordingly, the request to extend the deadline is DENIED as moot. 10 ||Nonetheless, to avoid an indefinite extension of the parties’ time to request Court 11 |/intervention in the existing disputes, the Court sets a deadline of November 1, 2022 to 12 || follow the undersigned’s procedures for requesting a discovery conference with the Court 13 |/to intervene in any such discovery disputes related to Defendant’s August 5, 2022 14 || discovery responses. 15 IT IS SO ORDERED. 16 17 || Dated: September 21, 2022 18 _ Apion. Honorable Allison H. Goddard 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28