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6 7 United States District Court 8 Central District of California 9 10

11 JOSE MARTINEZ, Case № 2:19-cv-02101-ODW (GJSx)

12 Plaintiff, ORDER DENYING MOTION TO 13 v. REOPEN DISCOVERY [46] 14 CHARLES BECK; MICHEL R. MOORE; JERITT SEVERNS; LOS ANGELES 15 POLICE DEPARTMENT; COUNTY OF LOS ANGELES; CITY OF LOS 16 ANGELES; STATE OF CALIFORNIA; and DOES 1 through 50, inclusive, 17

18 Defendants.

19 20 I. INTRODUCTION 21 Before the Court is Plaintiff’s Motion to Re-Open Discovery for the Limited 22 Purpose of Taking Four Depositions of Party Witnesses. (Mot., ECF No. 46.) Having 23 considered the papers filed in connection with the Motion, the Court deems this matter 24 appropriate for decision without oral argument. See Fed. R. Civ. P. 78; C.D. Cal. 25 L.R. 7-15. Accordingly, the hearing set for March 1, 2021, at 1:30 p.m., is VACATED. 26 II. BACKGROUND 27 Fact discovery closed in this action on March 30, 2020. (Scheduling Order 24, 28 ECF No. 20.) While discovery was open, Plaintiff did not conduct any depositions. 1 (See Decl. of Lisa W. Lee (“Lee Decl.”) ¶ 4, ECF No. 47-1.) The deadline to conduct 2 a settlement conference was October 12, 2020. (See Order Granting Third Stipulation 3 to Continue Dates 2, ECF No. 40.) And the deadline for hearing motions in this action 4 was October 19, 2020. (Id.) The parties’ trial documents are due no later than May 31, 5 2021, and trial in this action is set for July 6, 2021, at 9:00 a.m. (Order Granting Fourth 6 Stipulation to Continue Dates 2, ECF No. 45.) 7 Yet on January 22, 2021, Plaintiff filed the present Motion to Re-Open 8 Discovery, seeking leave to conduct four depositions of party witnesses. (See Mot.) 9 Plaintiff is represented in this matter by attorneys Shahin Shawn Karimian and Bahram 10 Brian Paya. Karimian and Paya do not work for the same law firm; they represent 11 Plaintiff as co-counsel. (See generally Decl. of Shahin Shawn Karimian (“Karimian 12 Decl.”)¶ 2, ECF No. 46-2.) 13 Karimian attests that Plaintiff should be permitted to depose party witnesses, 14 notwithstanding that discovery has been closed for nearly a year, because Plaintiff 15 “cannot try the case on the merits as the case is currently positioned.” (Id. ¶ 27.) 16 Karimian admits he is “not versed in [e]xcessive [f]orce cases,” and he has “also never 17 tried a [c]ivil case.” (Id. ¶¶ 3–4.) Thus, he “brough [sic] in Brian Paya [who] agreed to 18 be lead and trial counsel and assured [Karimian] he was more than capable of handling 19 the matter.” (Id. ¶ 5.) Even though Karimian is Plaintiff’s co-counsel, he “deferred to 20 Mr. Paya about litigation decisions and relinquished the day-to-day machinations of the 21 case to him.” (Id. ¶ 8.) Karimian claims he had “no reason to believe anything was 22 amiss” until July 2020, when former Defendant County of Los Angeles moved for 23 Rule 11 sanctions against Plaintiff, Karimian, and Paya. (Id. ¶¶ 9–10.) 24 Mediation in this case was held on October 6, 2020. (See Mediation Report, ECF 25 No. 43.) Karimian claims that he “learned for the first time shortly after Mediation that 26 Mr. Paya had not deposed party witnesses.” (Karimian Decl. ¶ 15.) Sometime in early 27 November 2020, Paya contracted COVID-19 and was incapacitated. (See Fourth 28 Stipulation to Continue Dates 4, ECF No. 44.) Although Paya recovered from illness 1 and returned to practicing law in “mid-November 2020,” (Mot. 6), Karimian explains 2 he “was left to obtain a modification of the Scheduling Order and to ask oppose [sic] 3 counsel for the City to agree to reopen discovery”—to which the City did not agree, 4 (Karimian Decl. ¶ 17). Defendants’ counsel confirms that the first time Plaintiff asked 5 Defendants to reopen discovery was in November 2020. (Lee Decl. ¶ 9.) 6 Karimian further declares that “when Mr. Paya returned to work from his illness, 7 [Karimian and Paya] agreed [they] needed to seek relief from [the Court] to take four 8 depositions of party witnesses.” (Karimian Decl. ¶ 18.) Sometime between 9 November 2020 and January 14, 2021, Karimian found a third attorney (who is thus far 10 unnamed and absent from this litigation) who agreed to serve as Plaintiff’s trial counsel. 11 (Id. ¶¶ 19–20.) Apparently, this unnamed trial counsel “was clear though, that 12 [Karimian] would need to get discovery re-opened to take the party witnesses [sic].” 13 (Id. ¶ 20.) 14 Then, on January 14, 2021, Karimian again asked Defendants’ counsel to 15 stipulate to reopening discovery for the limited purpose of deposing party witnesses. 16 (Id. ¶ 21.) That request was denied. (Id. ¶ 22.) Thus, Plaintiff filed the present Motion. 17 (Id. ¶ 23.) Unsurprisingly, Defendants filed an Opposition. (Opp’n, ECF No. 47.) 18 Subsequently, Plaintiff missed the deadline to file a Reply brief, filing an untimely 19 Reply thirteen days before the noticed hearing date for the Motion. (Reply, ECF No. 48; 20 see Defs.’ Obj. to Reply, ECF No. 49); see also C.D. Cal. L.R. 7-10 (“A moving party 21 may, not later than fourteen (14) days before the date designated for the hearing of the 22 motion, serve and file a reply memorandum, and declarations or other rebuttal 23 evidence.” (emphasis added)). 24 III. DISCUSSION 25 Rule 16 provides that “[a] schedule may be modified only for good cause and 26 with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good cause’ 27 standard primarily considers the diligence of the party seeking the amendment.” 28 Johnson v. Mammoth Recreations, Inc.,

(9th Cir. 1992). The court 1 may modify the pretrial schedule “if it cannot reasonably be met despite the diligence 2 of the party seeking the extension.”

(quoting Rule 16 advisory committee’s notes 3 (1983 amendment)). “[C]arelessness is not compatible with a finding of diligence and 4 offers no reason for a grant of relief.”

“Although the existence or degree of 5 prejudice to the party opposing the modification might supply additional reasons to 6 deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking 7 modification. If that party was not diligent, the inquiry should end.”

(emphasis 8 added) (citation omitted). Furthermore, “[w]hen [a] motion to extend time is made after 9 time has expired, the court must also consider excusable neglect.” United States v. 10 Freitas, No. 18-cv-01259-GPC (JLB),

, at *3 (S.D. Cal. May 22, 11 2019) (citing Fed. R. Civ. P. 6(b)(1)(B)). 12 Courts in this Circuit have acknowledged that “an eleventh-hour case evaluation 13 by newly retained counsel finding there is need for certain discovery does not 14 demonstrate diligence during the course of the litigation.” Id. at *6 (internal quotation 15 marks and brackets omitted) (quoting Zone Sports Ctr., LLC v. Rodriguez, No. 1:11-cv- 16 00622-SKO,

, at *5 (E.D. Cal. Jan. 19, 2016)). “Otherwise stated, 17 retaining new counsel does not provide the opportunity to re-strategize a lawsuit.”

18 (quoting DropZoneMS, LLC v. Cockayne, No. 3:16-cv-02348-YY,

, 19 at *5 (D. Or. Feb. 27, 2019)). Furthermore, “a counsel’s conscious choice not to 20 conduct discovery within the discovery period does not constitute excusable neglect for 21 purposes of failure to meet a deadline.” (Id. (internal quotation marks omitted) (quoting 22 Davis v. Cal. Dep’t of Corr. & Rehab., No. C 08-4481 SBA,

, at *3 23 (N.D. Cal. Mar. 25, 2013)). 24 These same principles squarely apply here. Plaintiff seeks, ultimately, to take 25 four depositions that Plaintiff’s counsel chose not to conduct while discovery was open. 26 (See generally Mot.) The Court finds that Plaintiff fails to support his request with the 27 requisite showing of diligence or excusable neglect. Essentially, Plaintiff’s only 28 proffered excuse is that Karimian is inexperienced and intentionally did nothing to 1 || litigate Plaintiff's case, while Paya consciously chose not to depose party witnesses within the discovery period. (See Mot. 4-6; Karimian Decl. §{[ 3-15.) Even if 3 | Plaintiff's unnamed, prospective, replacement trial counsel wishes that Plaintiff had conducted depositions during discovery, none of these reasons constitute good cause to 5 || disturb the case deadlines that passed nearly a year ago. See Freitas,

|| 2209402, at *6. Consequently, the Motion is DENIED. (ECF No. 46.) 7 8 IT IS SO ORDERED. 9 10 February 25, 2021 fy We op 12 YY iff 3 OTIS D. WRIGHT, II 4 UNITED STATES DISTRICT JUDGE

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