1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GOPHER MEDIA, LLC; AJAY Case No.: 21-CV-1909-RBM-WVG

THAKORE,

12

ORDER GRANTING IN PART AND

Plaintiffs, 13 DENYING IN PART JOINT v. MOTION TO CONTINUE FACT 14

DISCOVERY CUT-OFF

ANDREW MELONE; AMERICA PIZZA

15

MANUFACTURING,

16 Defendants. 17 18 19 Pending before the Court is the Parties’ October 26, 2022 Joint Motion to Continue 20 Fact Discovery Cut-Off. (Doc. No. 43.) The Parties move the Court to continue the October 21 31, 2022 fact discovery cut-off to complete party and witness depositions. Defendants 22 propose November 30, 2022 as the new cut-off. Plaintiffs propose December 31, 2022. The 23 Court has carefully reviewed the Parties’ submission. Having done so, the Court GRANTS 24 IN PART and DENIES IN PART the Parties’ Joint Motion and explains its decision below. 25 On May 17, 2022, this Court issued the operative Scheduling Order Regulating 26 Discovery and Other Pre-Trial Proceedings. (Doc. No. 32.) In pertinent part, the Court set 27 an October 31, 2022 fact discovery cut-off, which required the Parties to complete all fact 28 1 discovery on or before such date. Critically, the Scheduling Order defined “completed” 2 and cautioned: 3 “… all discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated within a sufficient 4 period of time in advance of the cut-off date, so that it may be completed by 5 the cut-off date, taking into account the times for service, notice, and response as set forth in the Federal Rules of Civil Procedure.” (Id., 1:26-2:3.) 6

7 Thus, the Scheduling Order made clear the Parties were to make swift efforts to obtain fact 8 discovery sufficiently in advance of the cut-off. The Parties are now five months removed 9 from the Order’s issuance. During this span of time, both Parties were to propound and 10 respond to written discovery, produce documents, coordinate and take depositions, and 11 subpoena records, all in recognition of the potential for impediments and disputes along 12 the way. The Joint Motion indicates the Parties have largely failed to do so. 13 Rule 16(b) of the Federal Rules of Civil Procedure informs the Court’s resolution of 14 this matter. The Rule provides that, absent good cause, courts will not disturb scheduling 15 orders. Fed. R. Civ. P. 16(b)(4). Good cause turns on movants’ diligence in attempting to 16 comply with existing deadlines. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 17 (9th Cir. 1992); In re Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 18 737 (9th Cir. 2013) (citing same). A fact-specific showing of good cause must be made to 19 warrant a court’s modification of a scheduling order; falling short of this requirement ends 20 the court’s inquiry. Johnson, supra, 975 F.2d at 910; see also Wong v. Regents of the Univ. 21 of Calif., 410 F.3d 1052, 1060, 1062 (9th Cir. 2005) (trial courts “set schedules and 22 establish deadlines to foster the efficient treatment and resolution of cases. Those efforts 23 will be successful only if the deadlines are taken seriously by the parties”). 24 For their part, Plaintiffs first served written discovery on September 28, 2022 and 25 now lament that Defendants have failed to produce responsive documents to date. If 26 Plaintiffs are to be victims, they are by their own doing. By delaying service of their 27 discovery requests until one month before the cut-off, Plaintiffs deprived themselves of 28 sufficient time to review Defendants’ anticipated responses and document productions, 1 identify deficiencies, meet and confer over points of contention, and raise any unresolved 2 disputes to the Court. The Court declines to make Plaintiffs’ resulting dilemma its own. 3 Except as outlined further below, all fact discovery shall be completed on or before the 4 October 3, 2022 cut-off. 5 Plaintiffs also bemoan that their deposition subpoenas as to the La Jolla Light’s Rule 6 30(b)(6) designee and reporter Ashley Mackin-Solomon were met with objections. In 7 support of their request for additional time to take these depositions, Plaintiffs attached 8 exhibits constituting the La Jolla Light’s general and outside counsel’s objections to the 9 depositions and refusal to produce documents. Neither of the exhibits indicate when 10 Plaintiffs first served these two deposition subpoenas. To that end, Plaintiffs did not attach 11 copies of the subpoenas as served. Curiously, too, Plaintiffs declined to reveal the 12 subpoenas’ service date in the Parties’ Joint Motion. Nonetheless, the La Jolla Light’s 13 October 25, 2022 and October 26, 2022 responses to the deposition subpoenas suggest that 14 the subpoenas were served just recently. The Court will neither play guessing games nor 15 reward Plaintiffs for their omission of this critical fact. Further, notwithstanding Plaintiffs’ 16 apparent untimeliness, the La Jolla Light’s general counsel’s letter lays out an articulate, 17 well-reasoned argument in opposition to Plaintiffs’ deposition subpoenas. The three-part 18 analysis counsel submitted beckons the question of whether the depositions could proceed 19 at any point. To that end, Plaintiffs’ counsel should have raised the matter to the Court 20 months ago and not at the proverbial eleventh hour like she does so now. 21 As an apparent catch-all argument, Plaintiffs request 60 more days to complete fact 22 discovery due to their counsel’s “greatly impacted schedule,” including “depositions in 23 other matters” and having transitioned to a new job on September 26, 2022. Good cause 24 does not arise under such circumstances and the Court has no sympathy to spare. Lacy v. 25 Am. Biltrite, Inc., 2012 WL 909309, at *7 (S.D. Cal. Mar. 16, 2012) (finding plaintiff’s 26 counsel not diligent under Rule 16(b) where they waited “nearly seven months” before 27 noticing any depositions); Khobragade v. Covidien LP, 2018 WL 4811895, at *1 (S.D. Cal. 28 Oct. 4, 2018), aff'd, 821 F. App'x 834 (9th Cir. 2020) (declining to modify scheduling order 1 for plaintiff’s lack of diligence in meeting operative discovery deadlines); Trejo v. City of 2 Shafter, 2011 WL 6130894, at *2 (E.D. Cal. Dec. 8, 2011) (declining to “allow 3 modifications [to a scheduling order] based upon the convenience of counsel”). At all 4 times, Plaintiffs are the masters of their own discovery plans and had five months to make 5 their requests for documents, information, and deposition testimony. Separately, Plaintiffs’ 6 counsel’s career transition was an event that occurred four months into the ongoing fact 7 discovery period, and it did not unfold overnight. In accepting a new position, Plaintiffs’ 8 counsel was the person best positioned to anticipate what consequences would flow from 9 departing from her law firm. These consequences necessarily included the need to account 10 for, organize, and transfer documents from this case to Plaintiffs’ counsel’s new office. 11 Those arrangements could have and should have been made as soon as Plaintiffs’ counsel 12 decided to change jobs. She did not, and the problem is now solely hers to bear. Plainly 13 stated, good cause does not arise from these circumstances. The Court will not modify the 14 Scheduling Order on such basis. 15 As for their part, Defendants do not specify in the Joint Motion when they first issued 16 notices of deposition. Nevertheless, Defendants contend that, “but for objections to the 17 schedule by Plaintiffs’ counsel,” Defendants “would have been able to complete the 18 depositions.” (Doc. No. 43, 1-3.) In part, the Joint Motion casts doubt over Defendants’ 19 representation. Plaintiffs indicate Defendants unilaterally noticed Ajay Thakore’s 20 deposition and thus assumed, rather than confirmed, his availability to sit for deposition. 21 Because Defendants fail to provide specific facts of when they served deposition notices 22 and what efforts counsel made to fashion a timely deposition schedule, the Court’s ability 23 to ascertain Defendants’ diligence is clouded. For this reason, the Court finds Defendants 24 have not satisfied Rule 16(b)’s good cause inquiry. 25 As discussed, the Parties’ Joint Motion leaves much to supposition. Neither side 26 explains (1) when any notices of deposition were first served, (2) what fact-specific 27 circumstances arose that impeded depositions from timely proceeding, and (3) what efforts 28 the Parties made to ameliorate those complications to abide by the operative fact discovery 1 || cut-off. Nevertheless, the Court finds at least some showing of diligence has been made, 2 ||namely by way of Plaintiffs’ efforts dating back to February 2022 to subpoena records from 3 ||the San Diego Police Department and Defendants’ completion of their written discovery 4 || efforts in preparation for noticing witness’ depositions. In saying so, the Court admonishes 5 || Plaintiffs’ counsel for not having brought the dispute implicating the San Diego Police 6 || Department earlier. There is a limit to the Court’s patience, and this Order is it. 7 Accordingly, the Court CONTINUES the fact discovery cut-off to Wednesday, 8 || November 30, 2022 for the sole purposes of allowing (1) Plaintiffs to obtain the documents 9 ||sought from the San Diego Police Department (“police department records”’) and (2) the 10 || Parties to take and defend depositions that rely upon or otherwise implicate the police 11 ||}department records, specifically and exclusively “Andrew Melone, Officer Wilder, and 12 || the FRCP 30(b)(6) of the San Diego Police Department” and “Ajay Thakore and the FRCP 13 || 30(b)(6) of Gopher Media, LLC,” as outlined on the fifth page of the Parties’ Joint Motion. 14 ||(Doc. No. 5, 1-5.) No other depositions shall proceed beyond the October 31, 2022 fact 15 || discovery cut-off. Any disputes arising from these anticipated depositions shall be raised 16 || to the Court sufficiently in advance of the November 30, 2022 limited fact discovery cut- 17 || off. Finally, to emphasize the point, all other fact discovery shall be completed on or before 18 || the October 31, 2022 cut-off as originally set by this Court’s May 17, 2022 Order. 19 IT IS SO ORDERED. 20 || Dated: October 27, 2022 Se LA Ss Hon. William V. Gallo 22 United States Magistrate Judge 23 24 25 26 27 28