ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION TO EXTEND DISCOVERY CUT-OFF

[Dkt. No. 177]

DEAN D. PREGERSON, District Judge.

On March 25, 2015, the Court granted Plaintiffs' previous ex parte application to extend the discovery cut-off date to April 20, 2015, over Defendants' opposition.1 (Dkt. Nos. 147, 153, 162.) Plaintiffs now once again move ex parte to extend the date to June 20, 2015, arguing that "Plaintiffs have been prevented from obtaining discovery from the Defendants." (Dkt. No. 177 at 6.)

"A schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "Rule 16(b)'s `good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal quotation marks omitted).

There are two active Defendants remaining in this case: Bank of America, N.A. ("BANA") and the City of Los Angeles ("the city"). Plaintiff wished to take depositions of so-called "persons most knowledgeable" ("PMK" witnesses) from both defendants. Defendants, similarly, wished to take depositions of the Plaintiffs. On February 9, 2015, the magistrate judge in this case determined that it would make the most sense for the Plaintiffs to be deposed before Defendants' PMKs. (Decl. Peter Kennedy, Ex. B at 4.) The magistrate judge also suggested that the proposed subjects on which Defendants' PMKs were to be deposed might be overly broad: "I do think they should be narrowed." (Id. at 27.) However, the magistrate judge also suggested that they might not need to be narrowed as much as defense counsel wished, and that "counsel should discuss these categories." (Id.)

On March 26, 2015, the day after the Court's order granting Plaintiffs' previous ex parte extending the cut-off date, Plaintiff's counsel sent an email to the separate counsel for the two Defendants asking them "agree on five (5) dates that your clients are available for depositions." (Decl. Elizabeth Greenwood, Ex. 1.) The email also stated that Plaintiffs' counsel was available either March 27 or April 2nd to meet and confer. (Id.)

On April 6, the city's counsel emailed Plaintiffs' counsel saying she had "narrowed some of the issues on the PMK deposition" and that she had identified two people who "may be able to cover most of what you are looking for." (Id., Ex. 2.) Counsel for the city also suggested April 13, 14, and 15 for depositions of the Plaintiffs and another witness. (Id.) Counsel for the city declares that she followed up by phone and left a voicemail. (Decl. Elizabeth Greenwood, ¶¶ 4-5.) On April 7, counsel for the city again emailed Plaintiff's counsel, again inquiring about Plaintiff's availability and also volunteering to provide the city's PMKs before April 13 "if necessary." (Decl. Elizabeth Greenwood, Ex. 3.) On April 8, counsel for the city unilaterally set dates for the depositions of the Plaintiffs. (Id., Ex. 4.)

There then followed a series of increasingly confrontational emails between Plaintiffs' counsel and counsel for the city. Plaintiffs' counsel claimed to have no recollection of defense counsel's previous communications and stated that she, Plaintiffs' counsel, had sent "multiple emails attempting to meet and confer," although these appear nowhere in the record. (Id., Ex. 6.) Plaintiffs' counsel announced her intent to file a motion to compel if an agreement could not be reached. (Id.) In response, the city's counsel stated that she would "happily make available" two PMK witnesses who would be able to answer "most if not all" of Plaintiffs' questions. (Id.) She also offered to make them available before April 13, or, alternatively, in the afternoon after Brenda Hernandez' deposition. (Id., Ex. 7.)

Parallel to these communications with the city's counsel, Plaintiffs' counsel was also in communication with BANA's counsel. As noted above, Plaintiff's counsel had sent an email asking Defendants for "five (5) dates that your clients are available for depositions." BANA's counsel replied to Plaintiffs' counsel on March 30 to ask for dates for depositions of the Plaintiffs, which, he noted, "must be completed before BANA's deposition." (Decl. Peter Kennedy, Ex. C.) Plaintiffs' counsel responded the same day: "Answer my question, and I will be more than glad to [answer] yours Peter." (Id., Ex. D.)

On April 8, after the city's counsel unilaterally set dates to depose Plaintiffs, BANA's counsel again emailed Plaintiffs' counsel to request confirmation of the dates as well as proposed topics for the deposition of BANA's PMK. (Id., Ex. E.) Plaintiffs' counsel then responded, somewhat confusingly, "Please confirm that your clients will be able to testify prior to discovery cut off in this case after your proposed dates for deposition testimony." (Id., Ex. F.) She also declined to give any specific proposals for narrowing the topics of the PMK deposition. (Id.) BANA's counsel appears to have interpreted this as a refusal to confirm the dates of the depositions of the Plaintiffs or to narrow the proposed topics of the PMK depositions. (Id.)

On April 10, Plaintiffs' counsel filed an ex parte motion to compel Defendants' depositions as well as a motion for a protective order. (Dkt. No. 168.) The city's counsel emailed Plaintiffs' counsel twice that day to reiterate her offer to make two PMK witnesses available. (Decl. Elizabeth Greenwood, Ex. 11.) The motion for a protective order was denied the same day, and the magistrate judge invited Plaintiffs to schedule a discovery conference to discuss the PMK depositions. (Dkt. No. 171.) On April 15, a discovery conference was set for April 22 — two days after the discovery cut-off. (Dkt. No. 175.) At that conference, the magistrate judge deferred the question of what to do about the PMK depositions, pending the Court's decision on this ex parte application. (Dkt. No. 183.)

Plaintiffs bear the burden of showing there is good cause to modify the scheduling order. Johnson, 975 F.2d at 609 (denying motion because moving party failed to demonstrate good cause). In this case, Plaintiffs have not met that burden. As to the city's witnesses, it seems obvious from this record that the city's counsel made every attempt to make the city's PMK witnesses available to Plaintiffs' counsel. Plaintiffs declined, entirely, to take up any of her offers to set a date to depose those witnesses. Plaintiffs were not diligent as to the city's witnesses.

As to BANA's PMK witness or witnesses, although BANA's counsel was not as forthcoming and cooperative as the city's counsel, BANA nonetheless was not unreasonable in asking Plaintiffs for possible deposition dates, since the magistrate judge had apparently established the order in which the depositions should occur. Plaintiffs' counsel provided no such dates, instead demanding that BANA's counsel set dates first. The discussion then stalled, around March 30. At that point, Plaintiffs could have filed a motion to compel discovery if they believed that it was not possible to come to an agreement on dates.2 Or, if they believed that the magistrate had not set a particular order for the depositions, Plaintiffs could simply have noticed the desired depositions and let BANA file for a protective order if it wished to do so. Either way, had Plaintiffs acted promptly, the matter could have been resolved by the magistrate. Plaintiffs were not diligent as to the BANA witnesses.

Plaintiffs have not shown that there is good cause to modify the scheduling order again. The ex parte application is DENIED.

IT IS SO ORDERED.