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DENTON v. G4S SECURE SOLUTIONS (USA) INC., 2:14-CV-01697-KJM-CKD. (2015)

Court: District Court, E.D. California Number: infdco20150908914 Visitors: 5
Filed: Sep. 03, 2015
Latest Update: Sep. 03, 2015
Summary: ORDER KIMBERLY J. MUELLER , District Judge Timothy Denton alleges retaliation and labor claims against his former employer, G4S Secure Solutions (USA) Inc. He now moves to amend the court's pretrial scheduling order to allow discovery to continue after September 7, 2015. G4S opposes the motion. The matter was submitted without a hearing, and the motion is GRANTED. I. BACKGROUND According to his complaint, Denton began working for G4S in February 2011. First Am. Compl. 7. In December
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ORDER

Timothy Denton alleges retaliation and labor claims against his former employer, G4S Secure Solutions (USA) Inc. He now moves to amend the court's pretrial scheduling order to allow discovery to continue after September 7, 2015. G4S opposes the motion. The matter was submitted without a hearing, and the motion is GRANTED.

I. BACKGROUND

According to his complaint, Denton began working for G4S in February 2011. First Am. Compl. ¶ 7. In December 2012, he reported a branch manager had sexually harassed a co-worker, id. ¶ 10, and in January 2013, he rejected his supervisors' request to fabricate evidence against a subordinate, id. ¶ 13. G4S then retaliated against him, eventually culminating in his termination in December 2013. See generally id. ¶¶ 7-23. In addition, although Denton was an hourly employee, G4S attempted to treat him as a salaried employee when that designation was convenient, G4S never issued itemized wage statements, and it withheld his pay after he was fired. Id. ¶ 25.

In his original complaint, filed in state court in August 2013, Denton alleged claims for retaliation, failure to prevent retaliation, failure to pay overtime, and failure to provide accurate wage statements. See Not. Removal Ex. A, at 8-13, ECF No. 1-1. His complaint also included allegations under the California Private Attorneys General Act (PAGA), Labor Code sections 2698 et seq. Id. at 6-7. In December 2014, after the case had been removed to this court, the court held an initial scheduling conference and issued a status (pretrial scheduling) order. ECF Nos. 8, 9. All discovery, expert and non-expert, was to be completed by September 7, 2015, dispositive motions were to be heard by November 6, 2015, and a trial was set for February 22, 2016. See generally id. Any motion to amend the complaint was due by January 12, 2015. Id. at 2.

On January 12, 2015, Denton moved to amend his complaint to include three new claims: failure to pay wages due on termination, failure to pay minimum wages, and a second claim for retaliation. See First Am. Compl. at 14-17; Mot. Am. at 5, ECF No. 10. Because he had been fired in the meantime, he would also assert new factual allegations. Mot. Am. at 5. The court granted the motion to amend on May 8, 2015, ECF No. 19, and Denton filed an amended complaint on May 21, 2015, ECF No. 20.

On July 24, 2015, Denton moved for leave to serve additional interrogatories related to his PAGA claims and to compel G4S to provide further responses to previous interrogatories about the claims in his original complaint, noticing a hearing before the assigned magistrate judge. ECF No. 24. On August 20, 2015, the magistrate judge issued an order granting the motion in part in accordance with a compromise Denton and G4S had reached after the motion was filed. ECF No. 32; see also Joint Statement, ECF No. 29.

On July 28, 2015, after the discovery motion was filed, but before it was resolved, Denton filed the current motion to amend the scheduling order. ECF No. 26. He requests an extension of at least sixty days. Id. at 3. He argues an extension is required because G4S has delayed discovery and withheld documents.

II. LEGAL STANDARD

A pretrial scheduling order may be modified if a party, despite its diligence, cannot reasonably be expected to meet the order's deadlines. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). When a party requests changes to the scheduling order, the court's inquiry focuses on that party's honest attempt to comply; he must demonstrate his "diligence," the common antonym for carelessness, questionable strategy, and delay. See, e.g., Calderon v. Target Corp., No. 12-1781, 2013 WL 4401430, at *7 (S.D. Cal. Aug. 15, 2013); Alibaba.com H.K. Ltd. v. P.S. Prods., 2012 U.S. Dist. LEXIS 36749, at *5-6 (N.D. Cal. Mar. 19, 2012); Eckert Cold Storage, Inc. v. Behl, 943 F.Supp. 1230, 1233 (E.D. Cal. 1996). Motions are more often granted when the opposing party's actions caused delay or when the delay is due to an outside intervening cause. See, e.g., Orozco v. Midland Credit Mgmt. Inc., No. 12-02585, 2013 WL 3941318, at *3 (E.D. Cal. July 30, 2013) ("[P]laintiff has pursued discovery diligently. It is defendant's dawdling, not plaintiff's, that caused [the delay]." (citations omitted)); Hood v. Hartford Life and Acc. Ins. Co., 567 F.Supp.2d 1221, 1225-26 (E.D. Cal. 2008) (granting a motion to modify the scheduling order after a deposition revealed new information and new case law was issued). In all, the decision is one of broad discretion. See Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985).

III. DISCUSSION

Denton argues G4S has delayed discovery and withheld documents in three instances. First, he argues that in February 2014, before the case was removed to federal court, he requested G4S produce all documents related to his complaints of retaliation or its investigation into those complaints, and G4S responded in April 2014 that it would produce those documents. Briscoe Decl. Ex. B, at 7-8, ECF No. 24-1. But more than a year later, on May 28, 2015, G4S produced several responsive documents it had not produced before. Id. ¶ 3, ECF No. 24. G4S's counsel, Alison Hong, agrees that some responsive documents were produced for the first time on May 28, 2015. Hong Decl. ¶ 5, ECF No. 33-1.

Second, Denton argues that in February 2014, he also requested G4S produce all his itemized wage statements, and in April 2014, G4S responded that it had already done so. Briscoe Decl., Ex. B, at 10. But on July 22, 2015, Ms. Hong told Denton G4S would produce several new wage statements a few days later. Id. ¶ 6. G4S has still not produced these wage statements. See id.; Briscoe Reply Decl., ECF No. 34. Ms. Hong agrees that about three or four months of wage statements were not produced, and she does not address Denton's assertion that G4S has not yet produced these wage statements. Hong Decl. ¶ 7.

Third, Denton argues G4S delayed the deposition of Robert Schreiner, a G4S employee. On June 18, 2015, Denton noticed Schreiner's deposition and requested the production of documents related to his deposition. Briscoe Decl. ¶ 5. On July 22, 2015, Ms. Hong informed Mr. Briscoe that while Schreiner would appear for his deposition two days later, G4S would not produce documents related to his deposition. Id. The deposition was postponed. Id. Ms. Hong does not dispute that G4S refused to produce the requested documents, and she explains that those requests were duplicative, that G4S had long ago objected to them, and that Denton had not challenged the objections. Hong Decl. ¶¶ 8-9.

In general, G4S responds that these delays were of Denton's own making and have caused him no prejudice. Opp'n 4-7, ECF No. 33. It argues an extension of the discovery deadline would serve no purpose because the parties' discovery dispute was resolved in August 2015 when the assigned magistrate judge issued her order on Denton's discovery motion. Id. And it claims Denton's request is a veiled attempt at tardy discovery on his previously pled PAGA claims, not the claims he first asserted in the amended complaint. Id. at 8-9. In his reply, Denton emphasizes he has not yet received all his wage statements. ECF No. 34.

Denton has demonstrated good cause for an amendment to the court's scheduling order. He argues, and G4S does not dispute, that it has delayed and withheld production of his wage statements and other documents. His wage statements are linked directly to claims asserted for the first time in his first amended complaint; G4S's failure to produce them alone would be good cause for an extension.

G4S correctly argues, however, that Denton had plenty of time to pursue his original allegations before the September 7, 2015 deadline, if necessary by appropriate motion. Denton's reply responds only to G4S's arguments about his wage statements, which tacitly lends support to G4S's position. For this reason, any discovery after September 7, 2015 may be conducted only to support claims Denton asserted for the first time in the first amended complaint. In other words, Denton may not seek discovery after September 7, 2015 solely in an effort to support claims asserted in his original complaint.

IV. CONCLUSION

The motion to amend scheduling order is GRANTED as follows:

(1) All discovery, lay and expert, shall be completed by November 6, 2015; discovery after September 7, 2015 may be conducted only to support allegations asserted for the first time in the amended complaint; (2) Dispositive motions shall be heard no later than January 15, 2016; (3) The final pretrial conference is RESET for May 26, 2016; (4) The parties shall file a joint pretrial conference statement no later than May 5, 2016; (5) The jury trial is RESET for July 11, 2016; (6) Trial briefs are due by June 27, 2016; and (7) The terms of the court's previously issued status (pretrial scheduling) order, ECF No. 9, otherwise remain in effect.

This order resolves ECF No. 26.

IT IS SO ORDERED.

Source:  Leagle

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