United States District Court, D. Alaska
ORDER RE MOTION FOR SANCTIONS AND FOR EXTENSION OF
TIME
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 213 is Plaintiffs' Motion for
Sanctions for Discovery Abuse and for Extension of Class
Certification Deadline. Defendant responded in opposition at
Docket 218. Plaintiffs filed an affidavit in reply after the
time for filing a reply had expired.[1]
The
motion for sanctions relates to the depositions of two
Nordstrom representatives that occurred on September 10 and
September 11, 2019. The depositions were conducted, but
Plaintiffs were dissatisfied with many of the responses,
asserting that the individuals designated by Nordstrom were
not the most knowledgeable persons on the subject matters of
the depositions and were poorly prepared.[2] Moreover,
Plaintiffs did not conduct any deposition regarding the
Anniversary Sale with a Nordstrom
representative.[3] Plaintiffs also take issue with the extent
to which Nordstrom's counsel objected during the
depositions.[4]Plaintiffs seek an order directing
Nordstrom to “produce new designees educated in the
topics noticed following production of documents at their
expense in Anchorage.”[5] They also seek monetary sanctions
in the sum of $29, 040.[6]
Plaintiffs
filed the instant motion on October 31, 2019, which was the
deadline to file a motion for class certification. Hence, the
motion also seeks to extend the class certification deadline
“to a date following the determinations of discovery
motions.”[7]
Noticeably
absent from Plaintiffs' motion is any certification that
they met and conferred with Nordstrom in an effort to resolve
this dispute.[8] To the contrary, Nordstrom indicates it
had no contact at all from Plaintiffs' counsel following
the September depositions prior to the filing of the current
motion.[9] In its reply to Nordstrom's
opposition, Plaintiffs' counsel represents that he
“met and conferred with Nordstrom before the deposition
started . . . during the deposition, both on and off the
record” and “at the conclusion of [the]
deposition.”[10]
Rule
37(a)(1) requires that the party bringing a motion to compel
discovery “include a certification that the movant has
in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an
effort to obtain it without court
action.”[11] The meet-and-confer requirement is a
“mechanism to reduce unnecessary burdens on the
district court's resources” and a means to
“encourage cooperation before parties resort to asking
the court to resolve a dispute.”[12] It is not
merely a “formalistic prerequisite, ” but rather,
a mechanism for parties to “present to each other the
merits of their respective positions with the same candor,
specificity, and support . . . as during the briefing of
discovery motions.”[13] For this reason, the rules
require a certification that the parties met and conferred;
moreover, “[c]ourts may look beyond the certification
made to determine whether a sufficient meet-and-confer
actually took place.”[14]
Here,
there were at best spontaneous discussions at or during the
depositions, with no follow-up and no agreement between the
parties that it constituted a meet and confer. It is clear
that this “truncated discussion . . . was insufficient
to meet the counsel's obligations to engage in a
meaningful discussion as to each discovery dispute during
that process as they would in briefing a subsequent
motion.”[15] For this reason, the Court will deny
Plaintiffs' motion to compel additional discovery and for
sanctions.
Moreover,
Plaintiffs' motion to compel new depositions and further
production of documents requires modification of the pretrial
scheduling order. The Court's pretrial scheduling order
can only be modified “for good cause, ” which is
primarily a question of “the diligence of the party
seeking amendment.”[16] While “prejudice to the
party opposing the modification might supply additional
reasons to deny a motion, the focus of the inquiry is upon
the moving party's reasons for seeking modification . . .
[and] [i]f that party was not diligent, the inquiry should
end.”[17]
The
Court finds that Plaintiffs have not been diligent; it is
undisputed that in the seven weeks following the depositions,
Plaintiffs did not reach out to Nordstrom (or to the Court)
to request additional deposition testimony or seek other
relief.[18]Instead, Plaintiffs waited until the day
their class certification motion was due to file the instant
motion asking for an extension and seeking further discovery.
For this additional reason, the Court denies Plaintiffs'
motion for sanctions.
Plaintiffs
also seek to modify the Court's pretrial scheduling order
to extend the deadline for their motion for class
certification.[19] The original class certification motion
deadline of April 2, 2019 was set for five months after
Nordstrom answered the operative complaint, [20] but it was
extended several times at Plaintiffs'
request.[21]Most recently, on August 13, 2019, the
Court extended the deadline to October 31,
2019.[22] And yet, Plaintiffs failed to file a
motion for class certification by the deadline and waited
until the last possible day to file that motion, then filed
the motion to ask for an extension. Plaintiffs have not
demonstrated good cause to modify the Court's pretrial
scheduling order to further extend the class certification
motion deadline; indeed, Plaintiffs' motion is devoid of
evidence of their diligence. Thus, the Court denies
Plaintiffs' motion and will not modify the existing
schedule.
Finally,
in its opposition, Nordstrom requests that the Court strike
Plaintiffs' class allegations from the operative
complaint.[23] Rule 12(f) provides that a court
“may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.”[24] Courts routinely strike class
allegations where plaintiffs failed to comply with class
certification motion deadlines.[25]Because Plaintiffs failed
to file a motion for class certification by the deadline and
have not shown good cause for the Court to modify the
schedule and give Plaintiffs yet another extension,
Plaintiffs' class allegations will be stricken from the
complaint.
In
light of the foregoing, Plaintiffs' Motion for Sanctions
for Discovery Abuse and Motion for Extension of Time at
Docket 213 is DENIED. Pursuant to the Court's order at
Docket 225, any renewed motion for partial summary judgment
shall be filed within 21 days of the date of
this order.
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