1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM NOON, ADELE NOON, Case No.: 23-cv-2257-JAH-BJC

12 Plaintiffs, ORDER DENYING DEFENDANT’S v. 13 EX PARTE REQUEST TO MODIFY

SCHEDULING ORDER 14 LIBERTY INSURANCE

CORPORATION and DOES 1 through 15 [ECF No. 33] 50, inclusive,

16 Defendants. 17 18 Before the Court is Defendant Liberty Insurance Corporation’s Ex Parte Request to 19 Modify the Scheduling Order. ECF No. 33. Plaintiffs William and Adele Noon oppose 20 the motion. ECF No. 34. After consideration of the papers submitted by the parties, and 21 for the reasons set forth below, the Court DENIES the motion. 22 I. BACKGROUND 23 This case arises from actions alleged in two matters filed in the Superior Court for 24 the State of California. Plaintiffs filed the present lawsuit on November 1, 2023 (ECF No. 25 1), against Liberty Insurance for failing to defend and/or indemnify Plaintiffs in two 26 underlying lawsuits. On December 12, 2023, Defendant removed this action to this Court 27 based on diversity jurisdiction. ECF No. 1. On March 4, 2024, the parties filed a Joint 28 Rule 26(f) Report and Discovery Plan. ECF No. 10. In the Joint Rule 26(f) Report and 1 Discovery Plan, the parties requested that discovery be bifurcated “to allow issues of 2 whether coverage exists under the Liberty policy (Phase One) to be adjudicated prior to 3 and separately from the adjudication as to Plaintiffs’ damages (Phase Two).” ECF No. 10 4 at 4. However, despite the parties’ request, Magistrate Judge Skomal, entered the 5 Scheduling Order on March 27, 2024, that did not allow for bifurcated discovery. ECF 6 No. 12. The Scheduling Order set the fact discovery deadline for July 18, 2024. Id. at 1. 7 On July 17, 2024, Magistrate Judge Ferraro entered an order extending the fact discovery 8 deadline to September 10, 2024. ECF No. 25. 9 On September 12, 2024, after fact discovery closed, Defendant filed the instant 10 motion requesting the Court: [1] “continu[e] the current expert disclosures deadline of 11 October 2, 2024 . . . the deadline to supplement expert disclosures of October 16, 2024, 12 and the expert discovery deadline of November 15, 2024 to occur after a ruling [is issued] 13 on the parties’ cross -motions for summary judgment” and [2] establish a second discovery 14 deadline solely as to the issue of damages to fall after a ruling [is issued] on the parties’ 15 cross-motions for summary judgment.” ECF No. 33 at 1–2. On September 13, 2024, 16 Plaintiffs opposed Defendant’s request and noted that “the proposed changes are 17 prejudicial to Plaintiffs as they worked hard and in good faith to comply with the 18 scheduling order issued by Judge Skomal and complete discovery in a timely manner.” 19 ECF No. 34 at 2. 20 II. DISCUSSION 21 Before the Court is Defendant’s Ex Parte request to continue the expert disclosures, 22 supplemental expert disclosures, and expert discovery deadlines and request to bifurcate 23 discovery and establish a second discovery deadline solely as to the issue of damages. The 24 Court will address each request, in turn, below. 25 A. Continuance of Expert Deadlines 26 Defendant requests to continue the following deadlines until after a ruling is entered 27 on the parties’ forthcoming summary judgment motions: Expert Disclosures Deadline – 28 1 October 2, 2024; Supplemental Disclosures – October 16, 2024; and Expert Discovery 2 Deadline – November 15, 2024. ECF No. 33. 3 Defendant states that this “change is necessary as Defendant’s billing expert cannot 4 complete his report as to the value of Plaintiffs’ damages while the Defamation case 5 remains pending, and fees continue to accrue therein.” Id. at 4–5. However, Defendant 6 fails to state how continuing these deadlines until after a ruling is entered on the parties’ 7 forthcoming summary judgment motions relates to being able to fully assess the damages 8 and/or fees Plaintiffs will incur from the ongoing defamation lawsuit. Indeed, there is no 9 guarantee that the underlying defamation lawsuit will be resolved by the time an order is 10 issued on the parties’ anticipated summary judgment motions. In fact, that case has been 11 pending since August 26, 2020, which is 50 months and counting. ECF No. 1-2 at Ex.1. 12 As such the Defendant’s motion to continue the expert disclosures, supplemental 13 disclosures, and expert discovery deadline is DENIED. The Court notes that this Order 14 was entered on October 3, 2024, a day after the expert disclosures deadline. As such, the 15 Court will extend only the expert disclosures deadline by seven days, making the new 16 deadline Wednesday, October 10, 2024. 17 B. Request to Bifurcate Discovery 18 Federal Rule of Civil Procedure 42(b) grants the court broad discretion to bifurcate 19 proceedings. Specifically, a court may bifurcate proceedings “for convenience, to avoid 20 prejudice, or to expediate and economize.” FED. R. CIV. P. 42(b). The court must also 21 consider the following factors in deciding whether to bifurcate proceedings: the 22 “[c]omplexity of issues, factual proof, risk of jury confusion, difference between the 23 separated issues, and the chance that separation will lead to economy in discovery.” 24 Dorotik v. Cty. of San Diego, No. 23-CV-1045-CAB-DDL,

, 25 at *2 (S.D. Cal. July 31, 2024). 26 Here, it is important to note that the parties submitted their request for bifurcation 27 over six months ago in their Joint Rule 26(f) Report and Discovery Plan (ECF No. 10), but 28 Magistrate Judge Skomal specifically chose to enter the Scheduling Order that establishes 1 a standard discovery plan, as opposed to a bifurcated discovery plan. See ECF No. 12. 2 Defendant states that bifurcation is needed because the opinions of the damages expert 3 “depend to a large extent, on whether coverage exists” and its expert “cannot render a fully 4 informed opinion” when “fees are continuing to be incurred.” ECF No. 33 at 3. However, 5 Defendant fails to acknowledge or attempt to justify its delay in bringing this request. 6 Indeed, Defendant waited until the end of fact discovery to request bifurcated discovery 7 for a second time and now is essentially asking the Court to re-open discovery. To 8 complicate the issue further, Defendant would like the new discovery deadline to be 9 established solely for the issue of damages and for the new discovery deadline to “fall after 10 a ruling is issue[d] on the parties’ cross-motions for summary judgment on the coverage 11 issues.” ECF No. 33 at 2. Significantly, to date, neither party has filed a summary judgment 12 motion. 13 Given the delay in Defendant re-raising its request to bifurcate discovery, the Court 14 finds that it would be unjust to create a second fact discovery deadline with an indefinite 15 or unknown end date. As Plaintiffs note in their opposition, Magistrate Judge Skomal 16 already rejected the idea of bifurcated discovery when it was jointly presented by the 17 parties. ECF No. 34 at 3. Additionally, Plaintiffs note that they diligently worked to 18 complete their discovery by the fact discovery deadline. ECF No. 34 at 3. Under the 19 circumstances, the Court finds that none of the considerations in Federal Rule of Civil 20 Procedure 42(b) support bifurcation in this case. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 || CONCLUSION 2 For the reasons set forth above, the Court DENIES Defendant’s Ex Parte Request 3 Modify the Scheduling Order. ECF No. 33. 4 IT IS SO ORDERED. 5 Dated: October 3, 2024 6 Bay Gan C4 & fe 9 Hon. Benjamin J. Cheeks 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28