United States District Court, D. Nevada
FOLEY, JR. United States Magistrate Judge.
matter is before the Court on Plaintiffs' Renewed Motion
to Reopen Discovery (ECF No. 64), filed on October 4, 2017.
Defendant filed a Response (ECF No. 65) on October 18, 2017
and Plaintiffs filed a Reply (ECF No. 65) on October 25,
2017. Also before the Court is Defendant's Motion for
Sanctions (ECF No. 50), filed on August 4, 2017. Plaintiffs
filed an Opposition (ECF No. 56) on August 9, 2017.
instant motion is Plaintiffs' third attempt to have
discovery reopened in this case. Plaintiffs initially brought
a motion to reopen discovery on June 9, 2017. See
ECF No. 31. The Court denied Plaintiffs' motion on July
7, 2017. Minutes of Proceedings (ECF No. 36).
Thereafter, Plaintiffs filed a Motion to Reconsider (ECF No.
39), an Objection (ECF No. 40) and a Motion for Relief Under
FRCP 60(b) (ECF No. 51). Defendant simultaneously filed a
Motion for Sanctions (ECF No. 50) based on Plaintiffs'
filings. The Court held a hearing on August 10, 2017 on
Plaintiffs' motion for reconsideration and motion for
relief under FRCP 60(b) and denied both without prejudice on
the record. See Minutes of Proceedings (ECF No. 57).
The Court also held Defendant's motion for sanctions in
abeyance until the District Judge ruled on Plaintiffs'
objection. The Court, however, also allowed
Plaintiffs to conduct limited discovery as to whether
Plaintiffs' prior counsel, Eric Dobberstein, did in fact
communicate his withdrawal. Id. Plaintiffs conducted
a deposition of Mr. Dobberstein on September 27, 2017 and
based on his testimony, bring this renewed motion to reopen
discovery for a period of sixty (60) days. See Renewed
Motion to Reopen Discovery (ECF No. 64), Exhibit 4.
renewed motion to reopen discovery argues that their failure
to participate in discovery was the result of excusable
neglect, to wit: Plaintiffs were unaware that their prior
counsel had withdrawn from this case and incorrectly believed
that he was still representing their interests. See
id. Plaintiffs' rely on the fact that all
correspondence sent to them, either by Mr. Dobberstein or the
Court, was addressed to the wrong address-
“Quintersa”Circle instead of
“Quintessa” Circle. Plaintiffs also assert that
they had several conversations and electronic communications
with Mr. Dobberstein and his office after he had withdrawn
from the case and state that they were never advised of his
withdrawal. Therefore they believed he was still litigating
this case on their behalf. Defendant argues that Plaintiffs
have not met their burden to justify reopening discovery.
Defendant argues that the Court should decline to reopen
discovery based on the following: (1) there is no record of
returned mail on the Court's docket; (2) there is no
record of returned mail in Mr. Dobberstein's file; (3)
according to the Clark County Assessor's website there
are no street names with the names “Quintersa, ”
“Quintera, ” or “Quintesa”; and (4)
Mr. Dobberstein sent copies of his attorney's lien to the
“Quintersa” address via certified mail return
receipt, which were signed receipt on June 5, 2017. See
Response (ECF No. 65). In their reply, Plaintiffs argue
that the Court cannot assume proper delivery of mail unless
the mail is properly addressed, which it was not here.
Reply (ECF No. 66), pg. 5.
Plaintiffs' Renewed Motion to Reopen Discovery
scheduling order may be modified “only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). A party seeking to reopen discovery after the
deadline has run must show excusable neglect. Fed.R.Civ.P.
6(b)(1)(B); LR 6-1(b). For purposes of Rule 6(b),
“inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute
‘excusable neglect.' ” Committee v.
Cost, 92 F.3d 814, 824 (9th Cir. 1996) (citing
Pioneer Investment Services Co. v. Brunswick Associates
Limited Partnership, 507 U.S. 380 (1993)). To determine
whether a party's failure to meet a deadline constitutes
“excusable neglect, ” courts apply a four-factor
test examining: (1) the danger of prejudice to the opposing
party; (2) the length of the delay and its potential impact
on the proceedings; (3) the reason for the delay, including
whether it was within the reasonable control of the movant;
and (4) whether the movant acted in good faith. Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,
507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993);
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
1261 (9th Cir.2010); Bateman v. United States Postal
Serv., 231 F.3d 1220, 1223-24 (9th Cir.2000). The
weighing of Pioneer's equitable factors is left to the
discretion of the court. Pincay v. Andrews, 389 F.3d
853, 860 (9th Cir.2004).
balance, application of the Pioneer factors weighs
against a finding of excusable neglect. As to the first two
factors, Plaintiffs moved to reopen discovery almost two
months after the discovery cut-off (which was 9 months after
the first responsive pleading rather than 6 months as
prescribed by LR 26-1(b)(1)) and almost a month after
Defendant filed its motion to dismiss. Allowing discovery to
reopen would prejudice Defendant because it will be required
to expend additional costs in an effort to essentially
re-litigate and defend this case. According to Plaintiff, as
it stands now, both parties have only served their initial
disclosures. If discovery was reopened, both sides
would have to, inter alia, propound written
discovery, take depositions, retain experts, and potentially
litigate any discovery related issues which could extend the
discovery period even longer. The expenses incurred by
Defendant would be substantial. Therefore, the first two
factors weigh against Plaintiffs.
the third factor, Plaintiffs assert that their delay was the
result of Mr. Dobberstein's failure to advise them that
he had withdrawn from the case and because all correspondence
to Plaintiffs was sent to the wrong address. Because the
question of actual notice is hotly contested, the Court
allowed Plaintiffs limited discovery to depose Mr.
Dobberstein to determine if he communicated his withdrawal to
Plaintiffs. However, Mr. Dobberstein's deposition
testimony does not shed much light on the situation, despite
Plaintiffs' arguments otherwise. In response to most of
the questions asked regarding whether certain things were
communicated with Plaintiffs, Mr. Dobberstein responded that
he did not recall. Renewed Motion (ECF No. 64),
Exhibit 4 (Deposition Transcript of Eric Dobberstein). This
was due, understandably, to the fact that Mr. Dobberstein
underwent open heart surgery in December 2016 and has since
had difficulty with his memory. Mr. Dobberstein could not
recall whether he telephonically, electronically or via
regular mail communicated his withdrawal to Plaintiffs but
stated that he “may have” and that he believed
his office would have told Plaintiffs of the withdrawal
sometime between September and December 2016. Deposition
Transcript, pgs 13-15. Because Mr. Dobberstein could not
point to a specific time that he communicated his withdrawal,
Plaintiffs argue that there is no definitive evidence (just
circumstantial) that they were made aware of the withdrawal
or that they should have known about it. As a result,
Plaintiffs assert that their dilatory conduct during
discovery should be condoned.
Court is not persuaded by this argument. Mr. Dobberstein
withdrew in October 2016. The order granting Mr.
Dobberstein's withdrawal was sent to Plaintiffs, albeit
to incorrect street name, but was never returned as
undeliverable. Regardless of the notice from the Court,
Plaintiffs were arguably put on notice that Mr. Dobberstein
was no longer working on their case. There were several
communications between Plaintiffs and Mr. Dobberstein
regarding payment of attorney's fees, Mr.
Dobberstein's potential withdrawal and the potential to
retrieve Plaintiffs' file. There is also no evidence that
Mr. Dobberstein led Plaintiffs to believe that their case was
still being prosecuted. To the contrary, in an email from Mr.
Dobberstein's office manager Dona McCullough to Plaintiff
Konecne, Ms. McCullough stated that “full payment is
necessary to continue.” Renewed Motion (ECF
No. 64), Exhibit 3 pg. 6. Plaintiffs should have inferred
from this email that nothing was going to be done on their
case until payment was made-which it never was. Defendant
also asserts that in February 2017, defense counsel spoke to
Plaintiffs regarding their obligations to litigate this case
and propounded written discovery directly to Plaintiffs.
Response (ECF No. 33), pg. 16. Plaintiffs also had
an attorney with Fennemore Craig, P.C. obtain an extension on
their behalf in February 2017, which demonstrates that
Plaintiffs knew that they needed a new attorney. Id.
Moreover, notices of attorney's liens were sent to the
“Quintersa” address via certified mail return
receipt, for which a receipt was signed on June 5, 2017.
Based on the totality of the circumstances, the Court finds
that Plaintiffs knew or should have known that Mr.
Dobberstein was no longer working on their case. Therefore,
the third factor weighs against Plaintiffs.
the fourth factor, Plaintiffs argue that they acted
diligently and in good faith once they became aware that Mr.
Dobberstein had withdrawn. The Court does not agree. Eight
months had passed from the time Mr. Dobberstein withdrew to
the time Plaintiffs filed their first motion to reopen
discovery. This extended time period, during which Plaintiffs
had very minimal contact with Mr. Dobberstein and (according
to the records produced) never asked about the status of
their case, shows a lack of diligence by Plaintiffs. In
addition, according to Plaintiffs' declarations, they
began looking for alternative counsel in February 2017, yet
did not actually retain new counsel until after Defendant
filed a motion to dismiss-three months later. See Renewed
Motion (ECF No. 64), Exhibit 1 at ¶¶
14-15 and Exhibit 2 at ¶¶ 11-12. Thus, the
Court finds that the fourth factor weighs against Plaintiffs.
the Pioneer factors weigh against a finding of
excusable neglect, the Court will again deny Plaintiffs
renewed request to reopen discovery.