Case 2:21-cv-00758-ODW-MAA Document 84 Filed 02/14/23 Page 1 of 9 Page ID #:1466

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8 United States District Court 9 Central District of California

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11 BELLA+CANVAS, LLC, Case № 2:21-cv-00758-ODW (MAAx)

12 Plaintiff, ORDER DENYING MOTION FOR

13 v. LEAVE TO FILE MOTION TO

COMPEL DEPOSITION [75]

14 FOUNTAIN SET LIMITED et al.,

15 Defendants.

16 17 I. INTRODUCTION 18 Defendant and Counterclaimant Fountain Set Limited (“FSL”) moves for leave 19 to file a motion to compel a deposition after the expiration of the fact discovery 20 deadline. (Mot. Leave File Mot. Compel (“Mot.” or “Motion”), ECF No. 75-1.) The 21 Motion is fully briefed. (Opp’n, ECF No. 77; Reply, ECF No. 79.) For the reasons 22 discussed below, the Court DENIES the Motion.1 23 II. BACKGROUND 24 On September 14, 2021, the Court issued a Scheduling and Case Management 25 Order. (Scheduling and Case Management Order (“Scheduling Order”), ECF No. 19.) 26 The Scheduling Order set a trial date and firm deadlines for the completion of fact and 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-00758-ODW-MAA Document 84 Filed 02/14/23 Page 2 of 9 Page ID #:1467

1 expert discovery. (Id. at 1, 24.) The Court advised the parties that “[t]he Court is 2 unlikely to grant continuances unless the parties establish good cause through a 3 concrete showing. Failure to complete discovery in a timely manner does not 4 constitute good cause, nor does the fact that a settlement conference is pending.” (Id. 5 at 1.) The Court further advised that it “will not necessarily grant an extension or 6 continuance simply because all parties have stipulated to it.” (Id. at 5.) 7 On March 21, 2022, the parties stipulated to continue the deadlines in the 8 Scheduling Order by 90 days to accommodate the schedules and travel of witnesses, 9 some of whom are located in Hong Kong, and counsel for depositions. (First Stip. 10 Amend Scheduling Order, ECF No. 27.) The Court granted this request and continued 11 the deadlines in the Scheduling Order by about 120 days2 to allow the parties to 12 complete discovery. (Order Granting First Stip. Amend Scheduling Order.) The 13 parties subsequently litigated multiple discovery disputes before Magistrate Judge 14 Audero. (Orders re: Discovery, ECF Nos. 39, 42, 48.) 15 On September 12, 2022, the parties again stipulated to amend the Scheduling 16 Order, seeking to continue all deadlines by another 60 days and to stay all litigation 17 until after the parties participated in mediation. (Second Stip. Amend Scheduling 18 Order, ECF No. 47.) The parties requested a continuance to avoid “incur[ring] 19 additional fees and costs in discovery” during “the lead-up to mediation.” (Id. at 2.) 20 Beyond that, the parties did not articulate a concrete need for a continuance, such as 21 what additional discovery remained. (See generally id.) However, as the Court stated 22 clearly in the Scheduling Order, “the fact that a settlement conference is pending” 23 does not constitute good cause for a continuance. (Scheduling Order 1.) 24 On September 13, 2022, the parties participated in an Informal Discovery 25 Conference before Magistrate Judge Audero. (Mins. Disc. Conference, ECF No. 48.) 26 During the conference, the parties agreed that, if mediation was unsuccessful, they 27 2 The Court’s order states that the Court continued the deadlines by “90 days.” (Order Granting First 28 Stip. Amend Scheduling Order 1, ECF No. 29.) However, in actuality, the ordered deadlines reflect about a 120-day continuance. (Id. at 1–2.)

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1 would subsequently conduct the deposition of Marco DeGeorge, the Co-CEO of 2 Plaintiff and Counter Defendant Bella+Canvas, LLC. (Mot. 3; Opp’n 1.) The parties 3 dispute whether this agreement was conditioned upon the Court granting the parties’ 4 then-pending request for an extension to the fact discovery deadline. (Id.) Later that 5 day, the Court denied the parties’ requested extension. (Order Den. Second Stip. 6 Amend Scheduling Order, ECF No. 49.) Fact discovery closed on September 19, 7 2022. (Order Granting First Stip. Amend Scheduling Order.) 8 On September 29, 2022, the parties entered a third stipulation, this time seeking 9 a limited, 26-day continuance of only the expert discovery deadline, which the Court 10 granted. (Third Stip. Extend Expert Discovery Cutoff, ECF No. 50; Order Granting 11 Third Stip. Extend Expert Discovery Cutoff, ECF No. 51.) 12 On October 24, 2022, the parties participated in mediation, which was 13 unsuccessful. (Mot. 3.) On November 2, 2022, FSL contacted Bella+Canvas 14 regarding scheduling DeGeorge’s deposition. (Opp’n 4; see also Decl. Melissa K. 15 Zonne ISO Opp’n ¶ 10, ECF No. 77-1.) Bella+Canvas responded on the same day. 16 (Opp’n 4–5.) Bella+Canvas indicated its position that the parties’ agreement 17 regarding DeGeorge’s deposition was contingent upon the Court granting the parties’ 18 stipulation to extend fact discovery, which the Court had denied. (Id.) Bella+Canvas 19 further indicated that discovery was closed, and it would not produce DeGeorge for a 20 deposition. (Id.) 21 On November 28, 2022, more than two months after the close of fact discovery, 22 FSL moved for leave from Magistrate Judge Audero to file a motion to compel 23 DeGeorge’s deposition. (First Mot. Leave File Mot. Compel, ECF No. 73.) Given 24 that FSL sought this relief after the close of fact discovery, Judge Audero denied the 25 motion without prejudice to FSL renewing its request to this Court. (Order Den. Mot. 26 Leave File Mot. Compel, ECF No. 74.) FSL now brings the instant Motion, seeking 27 leave to file a motion to compel a deposition of DeGeorge. (Mot.) Because fact 28

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1 discovery is closed, DeGeorge’s deposition would require the Court to reopen 2 discovery, even if only for a limited purpose. 3 III. LEGAL STANDARD 4 The Court “has wide discretion in controlling discovery.” Little v. City of 5 Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Under Federal Rule of Civil Procedure 6 (“Rule”) 16(b)(4), “[a] schedule may be modified only for good cause and with the 7 judge’s consent.” Fed. R. Civ. P. 16(b)(4). “When ruling on a motion to amend a 8 Rule 16 scheduling order to reopen discovery,” courts consider six factors: 9 1) whether trial is imminent, 2) whether the request is opposed, 10 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines 11 established by the court, 5) the foreseeability of the need for additional 12 discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence. 13 14 City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017). “While 15 no one factor is necessarily dispositive, the Ninth Circuit has instructed that the 16 primary focus should be on whether the party seeking to reopen discovery has acted 17 diligently.” De Paz v. Wells Fargo Bank, N.A., No. 18-cv-09779-PSG (PJWx), 18 2020 WL 2404897, at *2 (C.D. Cal. Feb. 18, 2020) (citing Johnson v. Mammoth 19 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). In addition, when a motion to 20 extend time is made after time has expired, the Court must also consider whether the 21 moving party failed to timely bring its motion because of excusable neglect. See Fed. 22 R. Civ. P. 6(b)(1)(B). 23 IV. DISCUSSION 24 FSL argues that its failure to bring the Motion before the close of fact discovery 25 is the result of excusable neglect because Bella+Canvas reneged on the parties’ 26 agreement to conduct the deposition of DeGeorge if mediation was unsuccessful. 27 (Mot. 4.) In the Motion, FSL fails to address the standard for demonstrating good 28 cause to amend a Scheduling Order under Rule 16. (See id.; see also Opp’n 9–11.)

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1 Nevertheless, the Court considers whether FSL meets that standard, as well as the 2 standard for excusable neglect. 3 A. Whether Trial is Imminent 4 The first Pomona factor—whether trial is imminent—weighs in favor of 5 reopening discovery where there is a significant amount of time between the motion to 6 reopen discovery and the trial date. Sateriale v. R.J. Reynolds Tobacco Co., No. 2:09- 7 cv-08394-CAS (SSx), 2015 WL 4162485, at *3 (C.D. Cal. July 8, 2015) (finding trial 8 nearly five months away was not imminent and weighed in favor of reopening 9 discovery). Here, the Court continued trial to July 18, 2023, which is more than seven 10 months from the date FSL filed the Motion. (See Order Continuing Trial, ECF 11 No. 83; see also Mot.) Accordingly, trial is not imminent, and this factor weighs in 12 favor of reopening discovery. 13 B. Whether the Request is Opposed 14 The second factor considers whether the movant’s request is opposed. Pomona, 15 866 F.3d at 1066. Because Bella+Canvas opposes FSL’s motion, (see generally 16 Opp’n), this factor weighs against reopening discovery. 17 C. Prejudice to the Non-Moving Party 18 Regarding prejudice, Bella+Canvas argues that “[r]equiring . . . DeGeorge’s 19 deposition well after the close of fact discovery would interfere with both parties’ 20 pre-trial preparations and require [Bella+Canvas] to defend a deposition rather than 21 prepare its case for the jury.” (Opp’n 8.) In addition, Bella+Canvas argues that an 22 additional fact deposition would be prejudicial because the parties already completed 23 expert disclosures and depositions. (Id.) 24 Reopening discovery may prejudice the non-moving party “when it requires 25 additional costs and major alterations in trial tactics and strategy.” Morris v. Sutton, 26 No. 1:17-cv-01488-AWI (SABx), 2019 WL 2994291, at *5 (E.D. Cal. July 9, 2019) 27 (citing Kozlov v. Associated Wholesale Grocers, Inc., 818 F.3d 380, 395 (8th Cir. 28 2016)). Here, however, Bella+Canvas has not articulated in any detail how this

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1 deposition might alter its trial tactics, strategy, or expert disclosures. See generally 2 Opp’n. Moreover, the Court finds that the risk of prejudice to Bella+Canvas is 3 minimized by the fact that trial is not imminent and that FSL does not propose further 4 continuing the trial date. In light of these considerations, the Court finds that this 5 factor is neutral. 6 D. Diligence/Excusable Neglect 7 The good cause standard for reopening discovery “primarily considers the 8 diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609 (internal 9 quotation marks omitted). In addition to showing diligence, a party seeking to reopen 10 discovery after time has expired must show that their failure to timely seek relief was 11 due to excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B). To determine whether 12 neglect is excusable under Rule 6(b), courts consider: “(1) the danger of prejudice to 13 the non-moving party, (2) the length of delay and its potential impact on judicial 14 proceedings, (3) the reason for the delay, including whether it was within the 15 reasonable control of the movant, and (4) whether the moving party’s conduct was in 16 good faith.” Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc) (citing 17 Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993)). However, 18 “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually 19 constitute ‘excusable’ neglect.” Pioneer, 507 U.S. at 392. 20 FSL argues that it diligently sought the deposition of DeGeorge since noticing it 21 in February 2022. (Reply 2–5.) FSL further argues that any delay in bringing the 22 Motion is due to excusable neglect because FSL detrimentally relied on 23 Bella+Canvas’s promise to produce DeGeorge for a deposition if mediation was 24 unsuccessful. (Id. at 5–6.) 25 Here, the Court’s Scheduling Order clearly provides that “[a]ll depositions shall 26 be scheduled . . . to permit their completion and to permit the deposing party enough 27 time to bring any discovery motions concerning the deposition prior to the cut-off 28 date.” (Scheduling Order 3.) In addition, regardless of any agreement between the

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1 parties to conduct a deposition after the fact discovery deadline, the Court cannot 2 enforce such an agreement absent a stipulation which it has approved. Fed. R. Civ. 3 P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s 4 consent.”); Fed. R. Civ. P. 29(b) (“[A] stipulation extending the time for any form of 5 discovery must have court approval if it would interfere with the time set for 6 completing discovery.”); Wyles v. Sussman, 445 F. Supp. 3d 751, 756 (C.D. Cal. 7 2020) (“Without a Rule 29 stipulated order in place, Plaintiff cannot have expected to 8 enforce [Defendant’s] promise to appear for deposition after the cutoff set by the 9 District Court.”). Thus, the Court finds that the appropriate time for FSL to seek leave 10 to depose DeGeorge after the close of fact discovery was when the Court denied the 11 parties’ request to extend discovery beyond mediation on September 13, 2022. (See 12 Order Den. Second Stip. Amend Scheduling Order.) At that point, approximately one 13 week remained before the close of fact discovery. Yet FSL did not bring this Motion 14 for months. It was not until November 28, 2022, that FSL first sought relief from 15 Magistrate Judge Audero to file the motion to compel DeGeorge’s deposition. (First 16 Mot. Leave File Mot. Compel.) 17 FSL’s explanation for this delay—that the parties agreed to conduct 18 DeGeorge’s deposition after mediation and the close of fact discovery—does not 19 address why FSL failed to seek Court approval to take a deposition after the close of 20 discovery, as is required by the Court’s procedures and the Federal Rules of Civil 21 Procedure. Because FSL does not address its failure to seek Court approval, it has not 22 demonstrated diligence or excusable neglect. 23 Moreover, when FSL raised this issue in late November 2022 before Judge 24 Audero and then December 2022 before this Court, trial was scheduled for 25 January 17, 2023. (See Mot.; Order Granting First Stip. Amend Scheduling Order.) 26 That FSL waited until less than two months before trial to seek relief weighs against 27 finding that FSL was diligent. 28

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1 Accordingly, the Court finds that FSL lacked diligence in bringing the Motion 2 and fails to demonstrate excusable neglect for its lack of diligence. This weighs 3 against reopening discovery. 4 E. Foreseeability of the Need for Additional Discovery 5 The fifth factor considers whether the need for additional discovery was 6 foreseeable. Pomona, 866 F.3d at 1066. Here, FSL served a Notice of Deposition of 7 Marco DeGeorge on February 22, 2022. (Mot. 2.) Accordingly, FSL foresaw the 8 need for this deposition well before the close of fact discovery, and this factor weighs 9 against reopening discovery. 10 F. Likelihood the Discovery Will Lead to Relevant Evidence 11 The sixth factor addresses whether additional discovery is likely to lead to 12 relevant evidence. Pomona, 866 F.3d at 1066. FSL states that DeGeorge, 13 Bella+Canvas’s Co-CEO, “has unique personal knowledge of matters relevant to the 14 lawsuit.” (Mot. 3; Opp’n 1.) Accepting this as true, the Court finds that the discovery 15 FSL seeks is likely to lead to relevant evidence. This factor weighs in favor of 16 reopening discovery. 17 Overall, three of the six Pomona factors—including the most important factor 18 of FSL’s diligence—weigh against reopening discovery. Accordingly, FSL fails to 19 establish good cause to reopen discovery.3 In addition, FSL fails to demonstrate 20 excusable neglect. 21 22 23 24 3 Bella+Canvas emphasizes that the parties’ agreement to conduct DeGeorge’s deposition if 25 mediation failed was contingent upon the Court granting the parties’ request for an extension of the fact discovery deadline. (See Opp’n 1.) It is not clear whether that contingency was indeed part of 26 the parties’ agreement. Regardless, the thrust of the parties’ agreement was that Bella+Canvas would produce DeGeorge for a deposition if mediation failed. (Id.) Although the Court concludes 27 that FSL fails to satisfy its burden to reopen discovery, largely due to the lengthy delay in bringing 28 this Motion, the Court does not condone Bella+Canvas’s refusal to honor its promise to offer DeGeorge for a deposition if mediation failed.

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1 Vv. CONCLUSION 2 For the reasons discussed above, the Court DENIES FSL’s Motion for Leave. 3 | (ECF No. 75.) 5 IT IS SO ORDERED. 7 February 14, 2023 ss 8 □ Géedliot 10 OTIS D. WRIGHT, I 1 UNITED STATES DISTRICT JUDGE

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