1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN EDWARDS, Case No.: 21cv878-H(RBB)

12 Plaintiff,

ORDER DENYING PLAINTIFF’S

13 v. MOTION TO CONTINUE FACT

DISCOVERY AND WRITTEN

14 CORECIVIC OF TENNESSEE, LLC, et

DISCOVERY [ECF NO. 24]

al., 15 Defendants. 16 17 18 On April 14, 2022, Plaintiff John Edwards filed a Motion to Continue Fact 19 Discovery and Written Discovery [ECF No. 24]. Defendants CoreCivic of Tennessee, 20 LLC; Corecivic, LLC; and CoreCivic, Inc. (collectively “CoreCivic”) filed an opposition 21 on April 28, 2022 [ECF No. 27]. Plaintiff filed a reply on May 5, 2022 [ECF No. 28]. 22 For the reasons discussed below, Plaintiff’s motion is DENIED. 23 I. BACKGROUND 24 This action arises out of Plaintiff’s employment with CoreCivic as a program 25 facilitator at one of its private prison facilities in San Diego. (Compl. 3, ECF No. 1.) 26 Plaintiff’s job duties included planning and implementing workshops and classroom 27 activities to prepare inmates for civilian life after incarceration. (Id. at 4.) During his 28 employment, Edwards took medical leave pursuant to the Family Medical Leave Act 1 (“FMLA”) and non-FMLA leave due to severe anxiety and depression. (Id. at 4-6.) 2 Shortly before the expiration of his non-FMLA leave, Plaintiff submitted a request for 3 reasonable accommodation to Defendants, in which he asked, at the recommendation of 4 his doctor, that he not be required to teach classes “in which the resident-inmates 5 discussed their experiences with anger, depression, domestic violence, childhood trauma, 6 and other topics that were likely to precipitate Plaintiff’s own anxiety, depression, and 7 suicidal thoughts.” (Id. at 6.) According to Edwards, CoreCivic failed to engage in the 8 interactive process required by the Federal Employment and Housing Act (“FEHA”) and 9 denied his request for accommodation. (Id. at 6-7.) CoreCivic terminated Plaintiff’s 10 employment on January 6, 2020. (Id. at 7.) Plaintiff alleges that Defendants 11 discriminated and retaliated against him because of his disability, medical condition, and 12 exercise of his rights under the FMLA, FEHA, and California Family Rights Act. (Id.) 13 The Court issued a Scheduling Order Regulating Discovery and Other Pretrial 14 Proceedings (hereafter “scheduling order”) on July 29, 2021 [ECF No. 12]. The 15 scheduling order set a fact discovery deadline of January 28, 2022, and required written 16 discovery, including interrogatories, requests for admission, and document production 17 requests, to be served by November 26, 2021. (Scheduling Order 1-2, July 29, 2021, 18 ECF No. 12.) On September 22, 2021, two months after the issuance of the scheduling 19 order, Defendants filed a Motion to Disqualify Plaintiff’s Counsel and Request for 20 Monetary Sanctions [ECF No. 13]. The motion to disqualify was denied by this Court on 21 November 15, 2021 [ECF No. 17]. 22 Nearly two months later, on January 7, 2022, the parties filed a Joint Motion to 23 Continue Fact and Expert Discovery Cut-off and Mandatory Settlement Conference [ECF 24 No. 20] (hereafter “first joint motion”). The parties requested a continuance of the fact 25 discovery deadline from January 28, 2022, to March 31, 2022. (Joint Mot. 2, ECF No. 26 20.) They also sought continuances of expert discovery deadlines, the pretrial motion 27 filing deadline, and a mandatory settlement conference. (Id.) The parties contended that 28 good cause existed for a continuance because they felt unable to conduct discovery for 1 two months due to the pendency of Defendants’ motion to disqualify. (Id. at 2-3.) They 2 also indicated that they had already propounded initial written discovery. (Id. at 3.) The 3 Court granted the joint motion in part on January 11, 2022. (Order 1, Jan. 11, 2022, ECF 4 No. 21.) The fact discovery deadline was continued to March 31, 2022, as the parties had 5 requested. (Id. at 2.) Because the parties did not seek a continuance of the written 6 discovery cutoff and had represented that initial written discovery had already been 7 propounded, the order reflected “No change” to the November 26, 2021 written discovery 8 cutoff. (Id.) 9 The next filing with the Court was made on February 23, 2022, in the form of a 10 Joint Motion to Continue Fact Discovery, Expert Discovery, Mandatory Settlement 11 Conference, Motion Filing Cut-off, and Related Deadlines [ECF No. 22] (hereafter 12 “second joint motion”). The parties referred to a “mutual inability to conduct discovery” 13 between Plaintiff’s reopening of a bankruptcy proceeding on January 13, 2022, and the 14 bankruptcy trustee’s decision to not pursue this action as property of the bankruptcy 15 estate on February 11, 2022. (Joint Mot. 2, ECF No. 22.) As relevant here, the parties 16 requested a continuance of the fact discovery cutoff from March 31, 2022, to May 12, 17 2022, and indicated that “No change” was needed to the November 26, 2021 deadline to 18 serve written discovery. (Id. at 3-4.) On March 3, 2022, the Court granted the joint 19 motion and issued a revised scheduling order, confirming the new fact discovery deadline 20 of May 12, 2022, and reflecting “No change” to the written discovery deadline of 21 November 26, 2021. (Order 2, Mar. 3, 2022, ECF No. 23.) 22 On March 2, 2022, Plaintiff served Interrogatories, Set One, upon Defendant 23 CoreCivic of Tennessee, LLC. (Defs.’ Opp’n Attach. #1 Gleason Decl. Ex. A, at 5-12 24 [interrogs.], ECF No. 27.) Edwards then propounded a Request for Production of 25 Documents, Set Two, on March 28, 2022. (Id. Ex. C, at 26-33 [reqs. for produc.].)1 26

27 1 Edwards had previously propounded a Request for Production of Documents, Set One, on this 28 1 Defendant served objections to the interrogatories and document requests on April 1, 2 2022, and April 27, 2022, respectively, in which it objected to each of the discovery 3 requests on the grounds that they were served beyond the November 26, 2021 deadline to 4 serve written discovery and thus were untimely and improper. (Id. Ex. B, at 14-24 [objs. 5 to interrogs.] & Ex. D, at 35-45 [objs. to reqs. for produc.].) 6 In the motion presently before the Court, Plaintiff seeks a continuance of the 7 written and fact discovery cutoffs for a period of three months and an order requiring 8 Defendant CoreCivic of Tennessee, LLC to substantively respond to the above written 9 discovery. (Pl.’s Mot. 5, 9, ECF No. 24.) Defendants request that the Court deny the 10 motion in its entirety. (Defs.’ Opp’n 11, ECF No. 27.) 11 II. LEGAL STANDARDS 12 The scheduling order issued by the court is required to limit the time to join other 13 parties, amend the pleadings, complete discovery, and file motions. Fed. R. Civ. P. 14 16(b)(3). The schedule may be modified only for good cause and with the judge's 15 consent. Id. R. 16(b)(4). The “good cause” standard under Rule 16(b) “primarily 16 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 17 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); see also Fed. R. Civ. P. 16 advisory 18 committee notes to 1983 Amendment (“[T]he court may modify the schedule on a 19 showing of good cause if it cannot reasonably be met despite the diligence of the party 20 seeking the extension.”). This is unlike the liberal amendment policy of Federal Rule of 21 Civil Procedure 15(a), which governs amended and supplemental pleadings, and which 22 focuses on the bad faith of the party seeking amendment and the prejudice to the 23 opposing party. Johnson, 975 F.2d at 609. While the court may consider these factors, 24 “the focus of the inquiry is upon the moving party's reasons for seeking modification.” 25 Id. “If that party was not diligent, the inquiry should end” and the motion to modify 26 should not be granted. Id. 27 / / / 28 / / / 1 III. DISCUSSION 2 A. Plaintiff Has Not Acted with Diligence 3 1. Lack of diligence in reading court orders 4 The primary basis of Plaintiff’s motion is his insistence that his counsel made a 5 “simple clerical error” in overlooking that the parties’ second joint motion to continue 6 dates reflected that “no change” was needed to the written discovery deadline. (Pl.’s 7 Mot. 3, ECF No. 24.) Edwards states that he “logically assumed” that the written 8 discovery cutoff would be extended beyond November 26, 2021, along with the fact 9 discovery cutoff. (Pl.’s Reply 4, ECF No. 28.) But contrary to Plaintiff’s belief that the 10 written discovery deadline was subsumed within the fact discovery cutoff, the Court’s 11 original scheduling order made it abundantly clear that the service of written discovery 12 was governed by a separate deadline. (See Scheduling Order 1-2, July 29, 2021, ECF 13 No. 12 (setting forth distinct deadlines in two separate paragraphs for completion of fact 14 discovery and service of written discovery).) And notwithstanding Plaintiff’s statement 15 that he only overlooked the language maintaining the original written discovery deadline 16 once, the Court’s orders on both the parties’ first joint motion and second joint motion 17 reflected “No change” to the deadline to serve written discovery. (See Order 2, Jan. 11, 18 2022, ECF No. 21; Order 2, Mar. 3, 2022, ECF No. 23.) “A scheduling order ‘is not a 19 frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel 20 without peril.’” Johnson, 975 F.2d at 610 (quoting Gestetner Corp. v. Case Equip. Co., 21 108 F.R.D. 138, 141 (D. Maine 1985)). While Plaintiff claims that he was not aware that 22 the written discovery deadline “was even plausibly at issue” until Defendant served 23 objections to his interrogatories on April 1, 2022, (see Pl.’s Reply 4, ECF No. 28), even 24 cursory reviews of the Court’s January 11, 2022, and March 3, 2022 orders would have 25 led Edwards to recognize that the written discovery deadline remained November 26, 26 2021. His failure to make this realization upon review of two separate court orders, as 27 well as the parties’ own second joint motion, reflects not merely a simple clerical error 28 but a lack of diligence. 1 2. Lack of diligence in serving foundational written discovery 2 A party seeking to modify a scheduling order must demonstrate good cause, which 3 "primarily considers the diligence of the party seeking the amendment." Johnson, 975 4 F.2d at 609; see also Fed. R. Civ. P. 16(b)(4). Edwards has failed to show that he acted 5 with diligence in serving foundational written discovery of an appropriate scope in a 6 timely manner. First, there is no reason that Plaintiff could not have served foundational 7 written discovery before the November 26, 2021 deadline. Despite his belief that he was 8 “de facto prohibited from conducting any discovery” during the pendency of Defendant’s 9 motion to disqualify, (see Pl.’s Mot. 2, ECF No. 24), he points to nothing in the record 10 nor any case authority substantiating his position. The Federal Rules of Civil Procedure 11 do not provide for automatic or blanket stays of discovery even when a potentially 12 dispositive motion is pending, let alone a motion to disqualify counsel. See, e.g., 13 Skellerup Indus. Ltd. v. City of Los Angeles, 163 F.R.D. 598, 600-01 (C.D. Cal. 1995) 14 ("Had the Federal Rules contemplated that a motion to dismiss under Fed. R. Civ. P. 15 12(b)(6) would stay discovery, the Rules would contain a provision for that effect."); 16 Turner Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (stating 17 that a pending dispositive motion is "not ordinarily a situation that in and of itself would 18 warrant a stay of discovery"). Additionally, other courts have found no “per se rule that a 19 pending motion for disqualification warrants a general stay of all proceedings.” See 20 Allstate Ins. Co. v. Belsky, Case No. 2:15-cv-02265-MMD-CWH, 2017 WL 9434415, at 21 *1. The prudent course would have been to seek an order staying discovery or 22 clarification from the Court regarding the status of discovery. See, e.g., IPVX Patent 23 Holdings, Inc. v. 8X8, Inc., Case No. C 13-01707 SBA, 2013 WL 6000590, at *2 (Nov. 24 12, 2013) (case with pending motion to disqualify not stayed until the defendant filed 25 motion to clarify the court’s directive regarding discovery). In this case, neither party 26 sought a stay on discovery or of any other dates contained in the scheduling order, and 27 the Court did not enter a stay. Edwards’s position that discovery was stayed is erroneous; 28 thus, there is no reason that Plaintiff could not have served foundational written discovery 1 before November 26, 2021, including while Defendants’ motion to disqualify was 2 pending. Furthermore, to the extent that Defendants’ motion to disqualify or the 3 reopening of Plaintiff’s bankruptcy proceeding delayed the case from progressing, the 4 Court’s orders on the parties’ first and second joint motions addressed those delays. 5 Second, the interrogatories and document requests belatedly served by Plaintiff 6 seek foundational information that should have been requested at the outset of discovery. 7 Set one of Plaintiff’s interrogatories seek basic information including the identification of 8 individuals who participated in the decision to terminate his employment and in efforts to 9 explore reasonable accommodations, engage in an interactive dialogue, and seek job 10 reassignment (Interrog. Nos. 1-2, 4-6); the date of his termination (Interrog. No. 3); the 11 identification of vacant job positions during the relevant time period (Interrog. No. 7); the 12 reasons for his termination (Interrog. No. 8); the identification of the Person Most 13 Qualified regarding Defendants’ compliance with disability discrimination laws and 14 regulations (Interrog. No. 9); and the identification of the Person Most Qualified 15 regarding the reason for his termination (Interrog. No. 10). (See Defs.’ Opp’n Attach. #1 16 Gleason Decl. Ex. A, at 9-10 [interrogs.], ECF No. 27.) Similarly, set two of his 17 document requests seek basic documents that should have been requested during the early 18 on in discovery. Specifically, the eight requests contained in set two of his document 19 production requests seek Defendants’ contracts with the California Department of 20 Corrections and Rehabilitation (“CDCR”) regarding its Boston Avenue, Ocean View, and 21 Otay Mesa Detention Center facilities (Req. Nos. 62-64); documents relating to staffing 22 levels for treatment managers and program facilitators (Req. No. 65); and various 23 communications between Defendants and CDCR regarding Edwards, job vacancies, and 24 staffing levels (Req. Nos. 66-69). (See id. Ex. C, at 30-31 [reqs. for produc.].) Even if, 25 as Edwards claims, he was not aware of Defendants’ contracts with the CDCR until 26 deposition testimony elicited on March 11, 2022, from Defendants’ former human 27 resources employee, Sherri Lashlee, and on March 21, 2022, from Plaintiff’s former 28 supervisor, Denise Reed, (see Pl.’s Mot. 7, ECF No. 24), it is the Court’s view that 1 diligent counsel would have served a broad request for documents relating to agreements 2 between Defendants and any other entities governing the employment relationship with 3 their staff at the early stages of the case. Here, a review of set one of Plaintiff’s 4 document requests served on October 7, 2021, prior to the written discovery deadline, 5 shows that he did not do so. (Pl.’s Supp. Ex. 4-17 [reqs. for produc.], ECF No. 32.) 6 If a party seeking to modify the schedule “was not diligent, the inquiry should end” 7 and the motion to modify should not be granted. Johnson, 975 F.2d at 609. Here, 8 Plaintiff has provided no valid reason that he could not have served the discovery sought 9 in set one of his interrogatories or set two of his document production requests prior to 10 the written discovery deadline of November 26, 2021. Even taking into account 11 Plaintiff’s position that the parties had an unwritten agreement to not conduct discovery 12 during the pendency of Defendant’s motion to disqualify, that motion was not filed until 13 September 22, 2021. Edwards was on notice of the November 26, 2021 written 14 discovery deadline when the Court issued the initial scheduling order on July 29, 2021. 15 Thus, he had nearly two months prior to the filing of the motion to disqualify to initiate 16 written discovery. His failure to timely serve discovery seeking the basic foundational 17 information contained in the interrogatories and document requests presently at issue 18 shows a lack of diligence, and thus his motion to continue the written and fact discovery 19 deadlines must be denied. 20 B. No Showing that Defendant Failed to Comply with Rule 26 Requirements 21 As an additional basis for his requested continuance of the fact and written 22 discovery cutoffs, Plaintiff contends that Defendants failed to comply with the initial 23 disclosure requirements of Rule 26 of the Federal Rules of Civil Procedure by not 24 providing its contracts with the CDCR, which “governed staffing levels, work 25 assignments, job duties, and more.” (Pl.’s Mot. 7, ECF No. 24.) Rule 26 requires parties, 26 without awaiting a discovery request, to provide to the other parties “all documents . . . 27 that the disclosing party has in its possession, custody, or control and may use to support 28 its claims or defenses, unless the use would be solely for impeachment[.]” Fed. R. Civ. 1 P. 26(a)(1)(ii). According to Plaintiff, Defendant did not produce any of the CDCR 2 contracts until April 12, 2022, when, it appears, Defendants produced its contract with 3 the CDCR pertaining to the Boston Avenue facility, where Plaintiff had been employed. 4 (Pl.’s Mot. 8, ECF No. 24; Defs.’ Opp’n 5, ECF No. 27.) Edwards contends that the 5 “belated” production of the contract is prejudicial to him because many of his depositions 6 of Defendants’ employees, current and former, have already been taken. (Pl.’s Mot. 8, 7 ECF No. 24.) He also states that he still has five additional depositions of current and 8 former employees of Defendants to take and would be “hard-pressed” to review and 9 understand the contracts in time to “comprehensively” depose the remaining witnesses. 10 (Id.) 11 The Court is unable to find, based on current record, that the CDCR contracts 12 should have been produced as part of Defendants’ initial Rule 26 disclosures. Defendants 13 were required to provide the contracts with their initial disclosures only if they intended 14 to rely on these documents to support their defenses. See Fed. R. Civ. P. 26(a)(1)(ii). 15 Defendants do not appear to intend to rely on the contracts as they describe them as 16 “irrelevant documents with no connection to the litigation[.]” (Defs.’ Mot. 6, ECF No. 17 27.) That Defendants produced the CDCR contract pertaining to the Boston Avenue 18 facility on April 12, 2022, (see Pl.’s Mot. 8, ECF No. 24), does not necessitate a finding 19 that the contract should have been produced as part of their initial disclosures. Because 20 Defendants served objections to set two of Plaintiff’s document requests, (see Defs.’ 21 Opp’n Attach. #1 Gleason Decl. Ex. D, at 38-44 [objs. to reqs. for produc.], ECF No. 27), 22 which specifically sought Defendants’ contracts with the CDCR, it does not appear that 23 Defendants produced the contract in response to these document requests. Rather, the 24 Court surmises that they produced the contract to reach a compromise with Plaintiff 25 regarding the current discovery dispute, pursuant to Rule 26(e), or for some other reason. 26 See Fed. R. Civ. P. 26(e) (providing that if a party learns that its disclosures are 27 incomplete or inaccurate, it has a duty to supplement them “in a timely manner”). Based 28 on the information currently before the Court, no showing has been made that Defendants 1 || failed to comply with the initial disclosure requirements under Rule 26. Thus, this cannot 2 ||serve as a basis for granting Plaintiff's request for a continuance of the written and fact 3 || discovery deadlines. 4 The Court further finds that the production of the CDCR contract for the Boston 5 || Avenue facility on April 12, 2022, one month before the fact discovery cutoff of May 12, 6 || 2022, should have provided Plaintiff’s counsel with ample time to review the contract 7 || prior to the remaining depositions in the case. As for the depositions taken by Plaintiff 8 || before production of the contract, Edwards has made no showing that a continuance of 9 || the fact discovery cutoff would remedy this situation. He does not, for example, claim 10 || that any specific depositions need to be reconvened for the purpose of questioning prior 11 ||deponents about the CDCR contract(s). 12 Therefore, based on the foregoing, Plaintiff's request for a continuance of the 13 |} written and fact discovery deadlines is DENIED. 14 IV. CONCLUSION 15 For the reasons set forth above, Plaintiff's Motion to Continue Fact Discovery and 16 || Written Discovery [ECF No. 24] is DENIED. Other than the depositions permitted by 17 Court’s May 23, 2022 Order granting the parties’ Joint Motion to Conduct Fact 18 || Witness Depositions After Discovery Cut-off, (see ECF No. 31), no further fact 19 || discovery is permitted. 20 IT IS SO ORDERED. 21 79 || Dated: May 26, 2022 ( J, 23 Hon. Ruben B. Brooks 24 United States Magistrate Judge 25 26 27 28