Full Tilt Boogie, LLC v. Kep Fortune, LLC
Full Tilt Boogie, LLC v. Kep Fortune, LLC
2021 WL 4527765 (C.D. Cal. 2021)
July 23, 2021
Wright II, Otis D., United States District Judge
Summary
ESI provided new material facts that satisfied the threshold requirement for reconsideration, and was necessary for Plaintiff to bring motions related to Defendants' documents and supplemental interrogatory responses, conduct expert discovery, and file a motion for summary judgment. The Court ordered the parties to engage in mediation to settle the entire case, and also vacated the trial date and other pre-trial deadlines.
Additional Decisions
FULL TILT BOOGIE, LLC
v.
KEP FORTUNE, LLC, et al.
v.
KEP FORTUNE, LLC, et al.
Case No. 2:19-cv-09090 ODW (KESx)
United States District Court, C.D. California
Signed July 23, 2021
Counsel
Ryan Andrew Ellis, Ryan Ellis Law, San Diego, CA, Jennifer Renee Lloyd, Howard and Howard Attorneys PLLC, Las Vegas, NV, Steven Edman Kish, III, Howard and Howard Attorneys PLLC, Beverly Hills, CA, for Plaintiff.Ann Anooshian, Al Mohajerian, Mohajerian APC, Los Angeles, CA, for Defendants.
Wright II, Otis D., United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR RECONSIDERATION (DKT. 98)
I. PROCEDURAL BACKGROUND.
*1 On June 10, 2021, the parties filed a stipulation asking the Court to extend certain pre-trial deadlines. (Dkt. 76.) On July 2, 2021, the Court entered an order extending some of the pre-trial deadlines, but not as far as requested. (Dkt. 81 [the “July 2 Scheduling Order”].) The July 2 Scheduling Order established the following revised deadlines:
(Dkt. 81 at 2.)
On July 16, 2021, Plaintiff Full Tilt Boogie, LLC (“Plaintiff”) filed an ex parte application to hear a motion to reconsider the July 2 Scheduling Order on shortened notice. (Dkt. 82.) The Court granted the ex parte application. (Dkt. 88.)
As instructed in the order granting the ex parte application, on July 20, 2021, Plaintiff filed the motion for reconsideration. (Dkt. 91.) The motion was stricken for procedural irregularities (Dkt. 95) and re-filed (Dkt. 98). Defendants Jeroen Bik, Miray Bik, and Kep Fortune, LLC (“Defendants”) filed an opposition. (Dkt. 96.)
For the reasons explained herein, the Court GRANTS the motion for reconsideration in part, further adjusting the pre-trial deadlines as stated below.
II. STANDARD FOR RECONSIDERATION.
A party may seek reconsideration of an order upon presenting the “emergence of new material facts” since the order was entered. Local Rule 7-18.
The July 2 Scheduling Order required Defendants to complete certain discovery by July 12, 2021. It required Plaintiff to bring any further motions to compel or sanctions motions related to that discovery by July 19, 2021, assuming that one week would be sufficient time in which to do so. Plaintiff now provides new information about the manner and timing in which Defendants provided documents and supplemental interrogatory responses. (Dkt. 98-1 [Lloyd Decl. ¶¶ 4-14].) These are new facts that satisfy the threshold requirement for reconsideration.
III. PLAINTIFF'S REQUESTS FOR ADDITIONAL TIME.
Plaintiff asks for additional time to bring motions related to Defendants' documents and supplemental interrogatory responses. (Dkt. 98 at 9.) The Court agrees that more time is reasonably necessary, but not as much as Plaintiff requests, because the July 2 Scheduling Order excused the parties from compliance with Local Rule 37-1 in favor of the Magistrate Judge's expedited procedure for resolving discovery disputes via short letter briefs followed by a telephonic hearing. (Dkt. 81 FN 1.) This procedure is sufficient for any motion to compel further discovery responses, given the Magistrate Judge's familiarity with the disputed discovery.
To the extent Plaintiff may file a motion for evidentiary sanctions or other serious, discovery-related sanctions, such motions should be filed as regularly noticed motions to be heard by the Magistrate Judge. The parties are excused from pre-filing meet and confer requirements for discovery sanctions motions.
*2 To the extent Plaintiff contends that Defendants intend to rely on a new, unpled affirmative defense (Dkt. 98 at 5-6), Plaintiff can object at trial or file a motion in limine to prevent the presentation of evidence at trial to support unpled matters.
Plaintiff asks for additional time to conduct expert discovery and file a motion for summary judgment that relies on expert analysis. (Dkt. 98 at 16.) Plaintiff argues that it needs expert input to understand the documents Defendants produced, and that Defendants' late production delayed Plaintiff's efforts to complete expert analysis. (Id.) Plaintiff also argues that compressing the filing of any motion for summary judgment against a deadline will unreasonably limit the amount of time available for opposition and reply briefing. This provides good cause for moving the related deadlines slightly. Of course, nothing prevents a party from moving for summary judgment or adjudication before the deadline, as Defendants have chosen to do. (Dkt. 84.)
Plaintiff also asks the Court to re-open discovery so that Plaintiff can take depositions. Plaintiff contends that additional discovery is needed to follow-up on facts learned from Defendants' recently served supplemental responses to interrogatories. The Court declines to re-open fact discovery for the broad purpose of conducting depositions. Plaintiff knew that the fact discovery cutoff date had passed when it argued that it would be prejudiced by Defendants' withdrawal of deemed admissions, because it would be unable to take depositions. (Dkt. 52 at 17–18.) Plaintiff has expressed that it is only seeking an extension of the pre-trial deadlines if doing so would not change the Court's decision to deny Defendants' motion to withdraw the deemed admissions. (See Dkt. 50 [motion]; Dkt. 67 [R&R]; Dkt. 80 [decision adopting R&R]; Dkt. 76 FN1 [Plaintiff stipulated to seek an extension of the pre-trial deadlines only “on the condition that this stipulation does not prejudice its pending motion to compel, does not waive or forfeit any arguments therein, and that any extension of the deadlines in this case as a result of this stipulation shall not be considered when considering the prejudice to Full Tilt described in its motion to compel or in its opposition to KEP's motion to withdraw admissions.”]) Plaintiff has not explained how a general extension of the fact discovery cutoff would not ameliorate the prejudice on which the Court's prior decision depended or how that Court could justify relying on a stipulation of the parties to avoid considering such a material change in the case's procedural posture.
To the extent Plaintiff seeks to depose the Biks to gain a better understanding of KEP's financial records (Dkt. 98 at 7), the Court finds no good cause to extend the discovery cutoff date for the purpose of noticing depositions of parties that have been known since the lawsuit was filed. Plaintiff argues that “it was not until KEP's liability was established that Full Tilt had a plausible claim to hold the Biks' personally liable.” (Id. at 8.) This is a confusing statement, since Plaintiff sued the Biks and presumably had some factual basis under Rule 11 to believe at that time that they were personally liable.
Finally, Plaintiff argues that it “should be permitted time to supplement its disclosures in response to KEP's document production.” (Id. at 15.) The Court understands this as a representation that KEP's recent production has caused Plaintiff to realize that it has documents in its possession, custody, and control that are relevant to its claims and defenses but that were not produced during the discovery period. If so, then Plaintiff should produce those documents.
*3 Defendants' opposition primarily argues that the motion for reconsideration should not be granted because Defendants expect to prevail on their pending motion for summary judgment based on the statute of limitations. (Dkt. 96 at 2.) This does not dissuade the Court that some adjustments to the schedule are appropriate. Defendants also argue that Plaintiff previously made arguments based on the discovery cutoff date. (Id. at 10.) The Court agrees, as explained above, which is one reason for denying some of the relief sought by Plaintiff.
IV. NEW PRE-TRIAL DEADLINES.
To effectuate a just and speedy resolution of this case, the Court modifies July 2 Scheduling Order as follows:
The Court VACATES the trial date and other pre-trial deadlines not stated above (see Dkt. 37 at 21). The Court will reschedule these dates after resolving all dispositive motions and any discovery-related motions and receiving a mediation status report from the parties.
Regarding mediation, the Court orders the parties as follows:
(1) On or before July 30, 2021: Plaintiff shall send Defendants a letter stating the terms on which Plaintiff would be willing to settle the entire case (i.e., all claims, counterclaims, and cross-claims and the pending fee motion).
(2) On or before August 6, 2021: Defendants shall send Plaintiff a letter either accepting Plaintiff's offer or providing a counteroffer to settle the entire case.(3) On or before August 11, 2021: Counsel shall meet and confer (in person or by phone, not via email) about settling the entire case. If they are unable to do so, then counsel shall meet and confer to schedule a mediation (if they have not already scheduled one). If the parties have mediated but not settled by September 30, 2021, and dispositive motions remain pending, then the Court may order the parties to engage in a second mediation after ruling on all dispositive motions.