1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WORKPLACE TECHNOLOGIES Case No.: 18cv1927 JM (MSB)

RESEARCH, INC.,

12

Plaintiff, 13 v. ORDER ON OBJECTION TO 14

MAGISTRATE JUDGE’S ORDER

PROJECT MANAGEMENT

15

INSTITUTE, INC.,

16 Defendant. 17

PROJECT MANAGEMENT

18 INSTITUTE, INC., 19 Counter-Claimant, 20 v. 21 WORKPLACE TECHNOLOGIES RESEARCH, INC., and DOES 1-15, 22 Counter-Defendants. 23

24 Plaintiff and Counter-Defendant Workplace Technologies Research, Inc. (“WTR”) 25 object under Federal Rule of Civil Procedure 72(a) to Magistrate Judge Michael S. Berg’s 26 order (Doc. No. 78) extending the deadline to serve request for written discovery. 27 (Doc. No. 80.) Plaintiff Project Management Institute, Inc. (“PMI”) opposes. (Doc. No. 28 90.) For the below reasons, the objection is OVERRULED. 1 I. BACKGROUND 2 The deadline in the scheduling order to serve written discovery requests expired on 3 August 3, 2020. (See Doc. No. 57.) Due to an “inadvertent and unintentional calendaring 4 mistake,” PMI did not serve its second set of requests for production of documents, second 5 set of interrogatories, and first set of requests for admission by the deadline. (Doc. No. 90 6 at 6.) When PMI asked WTR to agree to extend the deadline for 30 days, WTR refused. 7 (Doc. No. 80-1 at 2.) On August 17, 2020, PMI filed an ex parte motion to extend the 8 August 3, 2020 deadline (Doc. No. 68), which WTR opposed (Doc. No. 69). On 9 August 25, 2020, Judge Berg granted the motion and extended the deadline to August 31, 10 2020. (Doc. No. 78.) Judge Berg also ordered counsel for PMI to reimburse WTR for up 11 to $1,500 in attorneys’ fees that WTR accrued in opposing PMI’s motion. (Id.) On 12 August 28, 2020, PMI served WTR with requests for production, interrogatories, and 13 admissions. (Doc. No. 80-1 at 5.) On September 8, 2020, WTR timely filed the instant 14 objection. (Doc. No. 80.) On October 5, 2020, PMI filed its opposition. (Doc. No. 90.) 15 II. LEGAL STANDARDS 16 Rule 72(a) provides that a party may object to a non-dispositive pretrial matter 17 decided by a magistrate judge. “The district judge in the case must consider timely 18 objections and modify or set aside any part of the order that is clearly erroneous or is 19 contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). Accordingly, 20 the district judge must afford some deference to the magistrate judge’s ruling. See Hill v. 21 Alpine Sheriff Dep’t, Case No.: 18cv2470-CAB-MDD, 2020 WL 5891570, at *2 (S.D. Cal. 22 Oct. 2, 2020) (citations omitted); United States v. RAJMP, Inc., Case No.: 17-CV-515- 23 AJB-DEB, 2020 WL 5752938, at *2 (S.D. Cal. Aug. 25, 2020). 24 Rule 16(b)(4) provides that a scheduling order may be modified “only for good cause 25 and with the judge’s consent.” Similarly, Rule 6(b) provides that “[w]hen an act may or 26 must be done within a specified time, the court may, for good cause, extend the time . . . . 27 on motion made after the time has expired if the party failed to act because of excusable 28 neglect.” These rules are to be “liberally construed to effectuate the general purpose of 1 seeing that cases are tried on the merits.” Ahanchian v. Xenon Pictures, Inc., 2 624 F.3d 1253, 1259 (9th Cir. 2010) (citations, quotation marks, and alterations omitted). 3 “Although inadvertence, ignorance of the rules, or mistakes construing the rules do not 4 usually constitute ‘excusable’ neglect, it is clear that ‘excusable neglect’ under Rule 6(b) 5 is a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by 6 circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v. Brunswick 7 Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993)). 8 III. DISCUSSION 9 For two main reasons, WTR objects to Judge Berg’s order extending the deadline 10 for PMI to serve requests for written discovery. Neither reason is availing. First, WTR 11 argues that Judge Berg erroneously found that WTR would not suffer prejudice in 12 responding to additional discovery requests because “[i]t is self-evident that [WTR] would 13 be prejudiced by needing to respond to such additional written discovery requests[.]” 14 (Doc. No. 80-1 at 5.) In making this argument, WTR conflates the inherent burden of 15 responding to any ordinary and timely discovery request with the potential prejudice 16 resulting from requiring a party to respond to an untimely discovery request. Nothing in 17 the record or Judge Berg’s order suggests that WTR was prejudiced by allowing PMI to 18 make an untimely discovery request. To the contrary, during the hearing Judge Berg 19 specifically inquired with WTR as to why it allegedly suffered prejudice, and WTR failed 20 to provide a reason other than the typical burden any party would face in responding to 21 additional discovery requests. (See Doc. No. 80-4 at 14:13-15 (“[A]side from the fact that 22 you have to respond to them, and I get that, how would you be prejudiced if I put this out 23 a week or so?”); 26:4-9 (“I don’t see the real prejudice to you at this time . . . . because, I 24 understand you’re still getting ready in other aspects for trial and responding to other 25 requests, but had these requests been timely made, you still would have needed to respond 26 to them nonetheless.”).) Additionally, PMI contacted WTR four days after the deadline 27 expired to request an extension, but WTR refused for no other reason than “the deadline 28 had passed.” (Doc. No. 80-1 at 2.) Judge Berg also gave WTR the opportunity to file 1 additional written discovery requests of its own. (Doc. No. 80-4 at 27:16-18.) Finally, to 2 the extent that WTR was unnecessarily burdened by PMI’s motion to file an untimely 3 discovery request, Judge Berg ordered PMI to pay up to $1,500 of WTR’s attorneys’ fees. 4 (See Doc. No. 78.) Accordingly, Judge Berg’s reliance on the lack of prejudice to WTR 5 was not erroneous. 6 Second, WTR argues that Judge Berg’s order is contrary to law because it does not 7 address or distinguish the cases WTR cites in support of its argument that failure to 8 calendar a scheduling order does not constitute good cause or excusable neglect. 9 (Doc. No. 80-1 at 6.) In ruling on the motion, however, Judge Berg was not required to 10 address and distinguish every case cited in WTR’s papers. Moreover, the cases cited by 11 WTR are readily distinguishable and not controlling. See, e.g., Steinmeier v. Cty. of San 12 Diego, Case No.: 18cv1603 JM (WVG), 2020 WL 248984, at *5 (S.D. Cal. Jan. 16, 2020) 13 (disallowing plaintiff to amend her complaint after the defendant moved for summary 14 judgment and trial was only a few months away). Moreover, at the hearing, Judge Berg 15 specifically referenced the applicable standards for determining whether to amend a 16 scheduling order after a deadline has already expired, including excusable neglect under 17 Rule 6(b). (Doc. No. 80-4 at 7-8; see also id. at 8:12-14 (“[Y]ou understand that the 18 standard is not merely good cause, as you stated, but it’s excusable neglect, correct?”). 19 Judge Berg also cited and discussed the following factors upon which he relied on in 20 reaching his decision: 21 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was 22 diligent in obtaining discovery within the guidelines established by the court, 23 5) the foreseeability of the need for additional discovery in light of the time 24 allowed for discovery by the district court, and 6) the likelihood that the 25 discovery will lead to relevant evidence.

26 (Id. at 7-8 (citing City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 27 2017)).) Although WTR argues that Judge Berg made no findings with respect to the last 28 three factors, especially PMI’s diligence, the record shows otherwise. At the hearing, 1 || Judge Berg and counsel for PMI discussed, at some length, PMI’s diligence. (/d. at 9-12.) 2 || PMI explained that delay occurred because it thought the case would settle at an early stage, 3 || because of the COVID-19 pandemic, and because it did not receive responses from WTR 4 ||to its discovery requests. (d.) Judge Berg also specifically inquired as to the need for 5 || additional discovery, to which PMI provided some reasonably specific answers, including 6 PMI is seeking “targeted interrogatories .... to explain the current use of [WTR’s] 7 || product in the field of project management.” (See id. at 12-13.) Based on the record, the 8 ||court agrees that sufficiently good cause and excusable neglect warranted the relatively 9 || brief extension to the deadline for PMI to request an additional round of written discovery. 10 IV. CONCLUSION 11 For the forgoing reasons, WTR has not shown that Judge Berg’s order (Doc. No. 78) 12 || extending the deadline to serve written discovery requests is clearly erroneous or contrary 13 ||to law. Accordingly, WTR’s objection (Doc. No. 80) under Rule 72(a) is OVERRULED. 14 || With respect to any outstanding discovery issues related to his order,’ Judge Berg will 15 || direct the parties as he deems appropriate and necessary. 16 IT IS SO ORDERED. 17 ||DATED: October 7, 2020 CO) fifrLny Yi oloy 8 JEFAREY T. MILLER twted States District Judge 19 20 21 99 ' As part of the instant objection, WTR did not request that Judge Berg’s order be stayed, and WTR did not request leave to disregard PMI’s most recent request for written 23 || discovery, while WTR’s objection to Judge Berg’s order was being decided. See Alvarez v. Larose, Case No.: 3:20-cv-00782-DMS-AHG, at *1 (S.D. Cal. Sept. 21, 2020) (“Filing an objection pursuant to Rule 72 does not automatically stay the magistrate judge’s order. 25 || If that were the case, ‘parties could use the objection process simply as a device to further 6 delay discovery and to derail the preparation of a case for trial, regardless of the merits of the objection.’”) (internal citations omitted). To the extent WTR did not timely respond 27 ||PMI’s most recent request for written discovery, and did not seek leave to do so or 0g otherwise notify the court it would not respond to the request, Judge Berg may wish to inquire as to the basis for WTR’s conduct and consider appropriate remedies.