No. Civ. S 03-1532 FCD GGH.
March 22, 2005
MEMORANDUM AND ORDER
This matter is before the court on motion by plaintiff, United State of America ("government") to reopen discovery and extend the scheduled deadlines for filing of dispositive motions and the date for the final pretrial conference.
Because oral argument will not be of material assistance, the court orders the matter submitted on the briefs. E.D. Cal. Local Rule 78-230.
STANDARDOnce the district court has filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16, it "shall not be modified except upon a showing of good cause." FED. R. CIV. P. 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). This "good cause" standard primarily considers the diligence of the party seeking the amendment. "[T]he focus of the inquiry is upon the moving party's reasons for seeking modification. . . . If that party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609 (citations omitted). The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Id. Additional factors used by the court in deciding whether to reopen discovery, may include: (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 diligent in obtaining discovery within the guidelines established by the court, (5) the foreseeability of the need for additional 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. U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995), cert. granted in part, 519 U.S. 926, vacated on other grounds, 520 U.S. 939 (1997), citing, Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). Finally, the decision whether to reopen discovery lies solely in the trial court's discretion. U.S. ex rel. Schumer, 63 F.3d at 1526.
The government has demonstrated good cause for seeking to reopen discovery and extend the scheduling dates. Focusing on the government's diligence, it is apparent that the unusual circumstances of this case, particularly defendants' lack of cooperation, have impeded the government's ability to conduct discovery. Since the inception of the litigation, Mr. Walter Thompson and the other defendants have defied court orders, refused to comply with the Federal Rules of Civil Procedure and the Eastern District Local Rules, and filed unintelligible and non-responsive papers with the court. As a result of his defiance of the court's preliminary injunction, Mr. Walter Thompson was held in civil contempt and incarcerated on two occasions. Further, on January 28, 2005, Mr. Walter Thompson was convicted for filing a false claim against the United States, filing a false income tax return, and failing to withhold taxes from the paychecks of Cencal Sales, Inc. employees. Mr. Thompson's lack of cooperation and unavailability have no doubt obstructed the government's efforts to obtain discovery.
In addition, in its February 8, 2005 Order denying the government's request for a default judgment, this court indicated that additional information was needed to evaluate the propriety of entering a default judgment against each of the defendants. For example, the court sought information regarding Denise Thompson's current relationship to Walter Thompson, after it became apparent that divorce proceedings had been initiated between them. Further, the court requested information regarding the current ownership of Cencal Sales, Inc., and whether or not the defendants presently have any management or control over its operation. The government has indicated it needs to conduct further discovery to obtain the information requested by the court.
Defendants provided no meaningful response to the government's request to reopen discovery. Defendant Walter Thompson filed a paper in which he indicates that "this presentment has been refused for cause without dishonor for the following reason: I have no liabilities to the parties listed." (Notice of Return of Documents by Walter Thompson, filed March 7, 2005.) This paper provides no basis for denying the government's motion. Accordingly, the court finds that there is good cause for allowing additional discovery and for extending the deadline for dispositive motions and the pretrial conference date.
It is unclear whether this paper was filed in behalf of all defendants or solely Mr. Thompson, though defendants Anthony Thompson and Denise Thompson filed no separate briefing in response to the government's motion.
CONCLUSIONFor the foregoing reasons, the government's motion to reopen discovery and extend scheduling deadlines is GRANTED. The court will issue a scheduling order resetting discovery dates and other deadlines concurrent with this order.
It is so ordered.