Michael Waring v. Geodis Logistics LLC, et al Case No. CV 19-4415-GW (KSx) United States District Court, C.D. California Filed December 24, 2020 Counsel Justin Hanassab, Steven Isaac Azizi, Miracle Mile Law Group LLP, Los Angeles, CA, Barbara Faye Enloe Hadsell, Dan Stormer, David Clay Washington, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, for Michael Waring. James Allen Goodman, William O. Stein, Deanna L. Ballesteros, Story E. Cunningham, Epstein Becker and Green PC, Los Angeles, CA, Michael S. Ferrell, Pro Hac Vice, Epstein Becker and Green PC, Chicago, IL, for Geodis Logistics LLC, et al. Stevenson, Karen L., United States Magistrate Judge Proceedings: (IN CHAMBERS) ORDER DENYING DEFENDANT'S MOTION FOR SANCTIONS AGAINST PLAINTIFF [DKT. NO. 133] *1 Before the Court for decision is Defendant's Motion for Sanctions Against Plaintiff for refusing to produce his retained expert witnesses for deposition, filed on September 10, 2020 in the Joint Stipulation format (the “Motion”). (Dkt. No. 133.) On October 1, 2020, the Court vacated the hearing on the Motion and directed Defendant to show cause why the Motion should not be stricken as untimely. (Dkt. No. 137.) On October 7, 2020, in response to the Court's order to show cause, Defendant filed a Response in Support of the Motion. (Dkt. No. 142.) On November 2, 2020, the Court entered an Order discharging the order to show cause and scheduled a hearing on the Motion. (Dkt. No. 144.) On November 10, 2020, Plaintiff filed a Supplemental Memorandum Opposition to the Motion. (Dkt. No. 146.) On November 18, 2020, the Court held telephonic oral argument and took the matter under submission. (Dkt. No. 148.) RELEVANT BACKGROUND I. The Complaint and the Answer Plaintiff filed his complaint in Superior Court, Los Angeles County on April 19, 2020. (Dkt. No. 1 at 10-26 (CM/ECF pdf pag.) (the “Complaint”).) On May 21, 2019, Defendant removed the action to federal court based on the parties' diversity of citizenship (Dkt. No. 1 at 1-7). See 28 U.S.C. § 1332(a). Plaintiff makes the following allegations in the Complaint. In 2014, Plaintiff, who had over 20 years of experience in the supply chain and business operations industries, was hired by Geodis as Senior Director of Operations. (Complaint ¶ 12.) Geodis is a third-party logistics company that provides transportation, warehousing, and supply-chain management services for several complaints; it operates the primary distribution centers in North America for large corporations, such as Apple, Inc. (“Apple”). (Complaint ¶ 13.) Plaintiff was responsible for distributing many Apple products through various supply channels; he worked closely with Apple and was skilled at his job. (Id.) Plaintiff performed his job duties “in an exemplary manner” and consistently received excellent performance reviews, consequently receiving high merit-based bonuses. (Complaint ¶ 14.) Between July and December 2018, several members of Plaintiff's family were diagnosed with or experienced symptoms of severe physical and mental health conditions. (Complaint ¶ 15.) In December 2018, Plaintiff himself was diagnosed with major depressive disorder, which triggered a myriad of physical symptoms. (Id.) Due to these personal issues, Plaintiff requested a leave of absence from work under the California Family Rights Act (“CFRA”) to care for himself and his ailing family members. (Id.) Plaintiff's leave was approved on December 13, 2018. (Id.) On or around February 21, 2019, Plaintiff returned to work; within hours of returning, Plaintiff met with his supervisors, who informed him that his employment with Geodis was being terminated effective immediately due to “performance issues.” (Complaint ¶ 16.) Later, Balgemann privately told Plaintiff, “you should not have gone on leave.” (Id.) Plaintiff avers that Defendant feared he would be distracted and inattentive at work due to his personal circumstances and, thus, unlawfully it terminated his employment due to his disability, association with disabled family members, and in retaliation for taking CFRA-approved leave. (Complaint ¶ 17.) *2 Plaintiff asserts eight causes of action: (1) disability discrimination in violation of Cal. Gov. Code §§ 12900, et seq. (California's Fair Employment and Housing Act (“FEHA”)); (2) disability-based associational discrimination in violation of FEHA; (3) failure to prevent discrimination in violation of Cal. Gov. Code § 12940(k); (4) retaliation for taking CFRA leave in violation of FEHA; (5) failure to provide reasonable accommodation in violation of Cal. Gov. Code. § 12940(a), (i), (m), and (n); (6) failure to engage in interactive process in violation of Cal. Gov. Code § 12940(a), (i), (m), and (n); (7) wrongful termination in violation of public policy; and (8) intentional infliction of emotional distress. (Complaint ¶ 18-98.) Plaintiff seeks general and specific damages; pre-and post-judgment interest on damages; exemplary and punitive damages; attorneys' fees; civil penalties; medical expenses and related expenses; and any further relief the Court deems just and proper. (Id. at p. 26 (CM/ECF pdf. pag.).) On May 16, 2019, Defendant filed an Answer to the Complaint in state court, which is attached to the Notice of Removal. (Dkt. No. 1 at 36-41 (CM/ECF pdf. pag.) (the “Answer”).) Defendant issued a general denial of every allegation in the Complaint, and pleaded several affirmative defenses. (Id.) II. Pertinent Discovery Efforts Preceding Defendant's Motion The parties' initial expert discovery cut-off date was set as January 24, 2020, but they later stipulated to continue the expert discovery cut-off date to April 24, 2020. (Dkt. No. 13, 23.) At the time the Court granted the continuance, it specifically stated that “[t]here will be no further continuances granted in this case.” (Dkt. No. 23; see also Dkt. No. 33.) In March 2020, having realized that that they had not stipulated to a continuance of the expert disclosure date, the parties agreed outside of court that the expert disclosure date would be April 24, 2020, and the expert discovery cut-off would be May 15, 2020. (Dkt. No. 133-1 (Declaration of William O. Stein, counsel for Defendant) (“Stein Decl.”) ¶ 3). Plaintiff designated three expert witnesses: Alan Karbelnig, Michael Robbins, and David Fractor. (Id. ¶ 4.) In April 2020, after realizing that other non-discovery filing deadlines impeded the Defendant's ability to conduct depositions before the close of discovery, defense counsel asked Plaintiff's counsel if he would stipulate to continue the expert discovery cut-off; however, Plaintiff's counsel declined. (Id. ¶ 5.) Defense counsel then noticed the deposition of Plaintiff's experts for May 14 and May 15, 2020 (the expert discovery cut-off date), and asked Plaintiff's counsel if he would accept service of subpoenas for the experts. (Id.) Plaintiff's counsel did not respond. (Id.) On May 7, 2020, the District Judge held a status conference, which Defendant's counsel attended, but Plaintiff's counsel did not. (Dkt. No. 39.) According to Defendant, during the conference, defense counsel explained to the Court that Plaintiff's counsel had not stated whether they would accept service of the subpoenas or deposition notices for the experts. (Dkt. No. 132-2 (Declaration of Story E. Cunningham-White, counsel for Defendant) (“Cunningham Decl.”) ¶ 20.) The District Judge urged defense counsel to make another request to Plaintiff's counsel concerning service. (Id.) The District Judge advised defense counsel that, if Plaintiff's counsel refused or did not respond, defense counsel should inform Plaintiff's counsel that the Court would order Plaintiff's counsel to pay for any costs associated with having to serve subpoenas on the experts. (Id.) Defendant also stated that the District Judge told defense counsel that if Defendant made a request to extend the expert witness discovery cut-off date, the Court would likely grant the request. (Id.) The record does not reveal that either party either made a request to formally extend the expert witness discovery cut-off date. *3 Instead, also on May 7, 2020, defense counsel emailed Plaintiff's counsel informing them of the District Judge's statements; according to Defendant, Plaintiff's counsel then agreed to accept a notice of deposition to produce the witnesses for deposition; he agreed to produce Karbelnig for deposition on June 17, 2020, Robbins on June 18, 2020, and Fractor on June 26, 2020. (Stein Decl. ¶ 6.) According to Plaintiff, on May 20, 2020, Plaintiff's counsel emailed defense counsel with proposed dates on which Defendant could depose Plaintiff's experts. (Dkt. No. 133-3 (Declaration of Justin Hanassab, counsel for Plaintiff) (“Hanassab Decl.”) ¶ 25 & Ex. H.) On June 8, 2020, defense counsel sent notices of deposition for Karbelnig and Robbins on the above-noted dates. (Hanassab Decl. ¶ 25; Stein Decl. ¶ 6.) Plaintiff contends that on June 11, 2020, the date before the pre-trial conference order was due to be filed and in response to numerous emails from Plaintiff's counsel inquiring when Plaintiff would be receiving Defendant's portion of the portion of the Proposed Pre-Trial Conference Order (“PTCO”), defense counsel notified Plaintiff's counsel that due to personal issues, Defendant would not be able to get Plaintiff its portion of the PTCO until June 15, 2020. (Dkt. No. 133-4 (Declaration of Barbara Hadsell, counsel for Plaintiff) (“Hadsell Decl.”) ¶ 10.) According to Defendant, during a June 12, 2020 phone call, Plaintiff's counsel informed defense counsel that she would not produce any of Plaintiff's experts for the noticed depositions. (Stein Decl. ¶ 7.) She stated that the sole reason the experts would not appear for expert depositions was because Defendant refused to produce its own witnesses for Plaintiff to depose. (Id.) Further, she stated that she would not produce Plaintiff's experts for deposition on any other date until Defendant agreed to produce its witnesses for deposition. (Id.) Plaintiff, on the other hand, states that the parties agreed during the call to the late filing of the proposed PTCO. (Hadsell Decl. ¶ 10.) As to the issue of Defendant's alleged refusal to produce certain individuals for deposition, Plaintiff represents that defense counsel stated during the call that Defendant would not agree to produce the individuals despite counsel's opinion on the matter; in response, Plaintiff's counsel stated that unless Defendant changed its position and agreed to produce the individuals for depositions, Plaintiff would alert his experts that their previously scheduled depositions would not go forward. On June 16, 2020, Plaintiff's counsel affirmed her position in an email. (Id., Ex. 1; Stein Decl. ¶ 7.) Defendant observes that at no time prior to the taking of depositions did Plaintiff's counsel serve an objection to the depositions or file a motion for a protective order. (Stein Decl. ¶ 8.) Due to Plaintiff's position, Defendant anticipated the need to move to compel the depositions of Plaintiff's experts. (Id. ¶ 9.) Thus, on June 16, 2020, defense counsel informed Plaintiff's counsel via email that he would be taking a notice of non-appearance based on Plaintiff's counsel's refusal to provide the experts for deposition. (Id. ¶ 9, Ex. 1 ) Defense counsel disagreed that Plaintiff's production of experts was contingent on the deposition of Plaintiff's witnesses. (Id.) Defense counsel thereafter made records of Karbelnig's non-appearance on June 17, 2020, and Robbins's non-appearance on June 18, 2020. (Id. ¶ 9.) On June 25, 2020, Plaintiff's counsel emailed defense counsel, stating that, in light of Defendant's continued refusal to provide its witnesses for deposition, Plaintiff would be filing a motion to compel those depositions. (Hadsell Decl. ¶ 14, Ex. 7) In the same email, Plaintiff's counsel also informed defense counsel that Plaintiff would make his experts available for deposition. (Id.; Stein Decl. ¶ 10.) *4 On July 2, 2020, the parties met and conferred as to whether Plaintiff would pay for the costs and fees incurred as a result of Karbelnig's and Robbins's non-appearances for their noticed depositions, and as to Defendant's need to take notices of non-appearance because of Plaintiff's counsel's position at the time that they would not produce Plaintiff's experts for deposition. (Id. ¶ 17.) Plaintiff's counsel stated that they would not agree to pay for the costs and fees Defendant incurred for the non-appearances. (Id.) Defendant deposed Karbelnig on July 15, 2020, and Robbins on July 17, 2020. (Hadsell Decl. ¶ 15.) After the Robbins deposition, Plaintiff's counsel inquired whether Defendant still intended to depose Plaintiff's witnesses; after defense counsel stated that it would, Plaintiff's counsel agreed to work with defense counsel to schedule a date. (Id. ¶ 16.) However, as of the date of the Motion, defense counsel had not followed up to schedule a deposition date. (Joint Stip. at 15.) THE MOTION FOR SANCTIONS I. Defendant's Position Defendant contends that sanctions are appropriate for Plaintiff's refusal to produce his experts for deposition. (Id. at 15-18.) Specifically, Plaintiff's counsel agreed to accept service of the notices of deposition for his designated expert witnesses; Defendant noticed the depositions for dates that Plaintiff's counsel stated the witnesses were available; and yet, Plaintiff's counsel unjustifiably refused to produce the experts for deposition. (Id. at 17.) Defendant contends Plaintiff's refusal to produce his experts on the basis of the unrelated discovery dispute was improper. (Id. at 17-18.) Moreover, Defendant was justified in taking notices of non-appearance because Plaintiff ultimately produced his experts for deposition. (Id. at 18.) Defendant further contends that Plaintiff's conduct violates Federal Rule of Civil Procedure 26(d)(3)(B), which provides that “discovery by one party does not require any other party to delay its discovery.” (Id. at 18-19.) Specifically, Defendant posits that Plaintiff's reliance on an unrelated discovery issue for not producing his own experts was impermissible. (Id.) In Defendant's Response to the Court's Order to Show Cause, it argues that the Motion is timely and should be considered on the merits. (Dkt. No. 142 at 2-5.) Specifically, Defendant emphasizes that Plaintiff's and his counsel's conduct in unreasonably delaying and interfering with Defendant's ability to depose experts constitutes sanctionable misconduct; and Defendant is entitled to recover expenses and fees incurred in its deposition efforts. (Id. at 4.) And to rigidly apply the expired discovery cut-off date to limit Defendant's ability to seek compensation for those efforts would permit Plaintiff's counsel to “violate the discovery rules with impunity.” (Id. at 5.) Here, the District Judge permitted the deposition of Plaintiff's experts after the expert discovery cut-off date; so too, Defendant's recovery for misconduct relating to those depositions must be permitted. (Id.)[1] II. Plaintiff's Position Plaintiff argues that sanctions are not appropriate because Defendant breached the parties' agreement to produce deposition witnesses and Plaintiff did not violate any rule of discovery. (Joint Stip. at 20-22.) Plaintiff contends that the parties made an extrajudicial agreement concerning the taking of depositions after the close of discovery, which Defendant unilaterally breached by failing to produce its witnesses. (Id. at 20-21.) Plaintiff argues that neither party's decision to not produce its witnesses is sanctionable because neither party violated any rules of discovery. (Id. at 21.) Plaintiff insists it merely attempted to “re-engage” Defendant in an attempt to salvage the parties' agreement. (Id.) Despite the parties' failures to maintain an agreement, Plaintiff nevertheless cooperated so that Defendant could depose Plaintiff's experts. (Id. at 21-22.) *5 Plaintiff further argues that even if discovery had not closed before depositions were taken, sanctions against him are still not warranted because of the parties' out-of-court agreement. (Id. at 22-23.) And despite Defendant's breach of that agreement, it noticed its own post-discovery depositions. (Id. at 23.) Defendant appeared for the depositions even though it was aware that Plaintiff's experts would not appear at the scheduled depositions. (Id.) Finally, Defendant did not suffer prejudice because it deposed Plaintiff's experts. (Id.) Plaintiff also notes that Defendant could have, but did not, move for leave to extend expert discovery. (Id.) In Plaintiff's Supplemental Memorandum, he first observes that in its Response to the Court's Order to Show Cause, Defendant misleads the Court about the post-discovery sequence of events. (Dkt. No. 146 at 1.) Specifically, Defendants did not notice the depositions of any of Plaintiff's experts to occur before the Court's scheduled expert discovery cut-off date, and the Court cannot now address this discovery dispute after the discovery cut-off date has passed. (Id. at 1-2.) Moreover, Defendant has not suffered prejudice as a result of Plaintiff's conduct concerning the deposition of its expert witnesses. (Id. at 2-3.) Finally, Plaintiff reiterates that sanctions are inappropriate because Defendant unilaterally breached the parties' agreement to take depositions after the close of discovery. (Id. at 3-4.) For the reasons discussed below, Defendant's Motion must be DENIED. LEGAL STANDARD The Federal Rules of Civil Procedure create a “broad right of discovery” because “wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth.” Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir.1993); see also, Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995). District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). When a party fails to obey a court order to provide discovery, Rule 37(b) provides that the Court may impose a range of sanctions against the disobedient party, including directing that designated facts be taken as established for purposes of the action; prohibiting the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters in evidence; striking pleadings in whole or in part; staying the proceedings until the discovery order is obeyed; rendering a default judgment against the disobedient party; or treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. FED. R. CIV. P. 37(b)(2)(A). Rule 37(b) also requires payment of expenses by the disobeying party as follows: Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. FED. R. CIV. P. 37(b)(2)(C) (emphasis added). A court may impose sanctions under both Rule 37 and the court's inherent authority. FED. R. CIV. P. 37; Unigard Sec. Ins. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (“Courts are invested with inherent powers that are ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ”) (internal citations omitted). Thus, under both Rule 37 and the Court's inherent authority, a court has discretion to impose a wide range of sanctions for a party's failure to comply with discovery rules or with court orders enforcing those rules. Wyle v. R.J. Reynolds. Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983). DISCUSSION *6 Although the Court is troubled by both parties' discovery-related conduct in the months following the formal close of discovery, the Court is barred from addressing whether Defendant is entitled to sanctions in this case. As the Court has emphasized in its prior order, a magistrate judge lacks authority to resolve discovery disputes after the discovery cut-off date set by the assigned district judge and cannot sua sponte advance the discovery deadline set by the district judge's scheduling order. United States v. Celgene Corp., Case No. CV 10-3165-GHK (SS), 2015 WL 9661172, at *1 (C.D. Cal. Oct. 16, 2015) (magistrate judge cannot order discovery after the discovery cut-off); (and see Dkt. No. 135 (denying Plaintiff's motion to compel further production of documents)). As explained in greater detail below, because the entirety of the instant dispute arose after the expert discovery date in this case had passed and neither party sought an extension of that date despite Judge Wu indicating his willingness to grant such an extension, the undersigned Magistrate Judge cannot resolve the merits of Defendant's request. First, the Court recognizes the need to clarify the relevant discovery cut-off date. The parties' declarations and the record filings identify that the expert discovery cut-off date set by the District Judge in this case was April 24, 2020. (Dkt. Nos. 23, 33.) Although Defendant contends that the District Judge indicated at the May 7, 2020 status conference that he would likely grant a request to extend the expert witness discovery cut-off date if such a request was made, the record does not reveal that any such request was ever made or granted by the District Judge. (Cunningham Decl. ¶ 20.) Federal Rule of Civil Procedure 16(b)(4) provides, “[a] schedule may be modified only for good cause and with the judge's consent.” FED. R. CIV. P. 16(b)(4) (emphasis added). Thus, when the parties agreed to continue to notice and take depositions after April 24, 2020, they did so on their own accord without judicial consent, and by definition, their agreement was extrajudicial. To resolve the instant dispute would require the Court to first opine on the validity of the extrajudicial agreement the parties made to conduct discovery after April 24, 2020. And if that agreement were found binding, the Court would need to evaluate the propriety of Defendant's request to impose a sanction for Plaintiff's alleged failure to comply with the terms of the parties' informal agreement. The Court declines to follow this course. Cf. Vivint, Inc. v. Alarm.com, Inc., 2020 WL 4544316, at *8 (D. Utah Aug. 6, 2020) (declining to find that the parties entered into an extrajudicial agreement and that the magistrate judge clearly erred by failing to impose sanction for party's failure to adhere to the terms of that agreement). Federal Rule of Civil Procedure 16(f) provides that “[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37[ ], if a party fails to obey a scheduling order or other pretrial order.” FED. R. CIV. P. 16(f)(1)(C). Defendant is represented by sophisticated counsel but did not move under Rule 16(f), so the Court declines to issue any order under Rule 16(f). See Vivint, Inc., 2020 WL 2020 WL 4544316, at *8. Federal Rule of Civil Procedure 29 provides the procedure for parties to cooperate to complete discovery after a court-ordered cut-off, but only by stipulated order. See FED. R. CIV. P. 29. Here, Defendant noticed depositions of Plaintiff's witnesses several weeks after the expert discovery cut-off date, and it did so with no stipulated Rule 29 order in place to allow Defendant to enforce Plaintiff's production of its experts for deposition after the cut-off set by the District Court. See Wyles v. Sussman, 445 F. Supp. 3d 751, 756 (C.D. Cal. 2020); see also Adinolfi by & through Adinolfi v. Omni La Costa Resort & Spa LLC, 2019 WL 2269881, at *2, *4 (S.D. Cal. May 28, 2019) (counsels' “unilateral agreement” to conduct deposition after discovery closed “without Court approval” and “beyond the date by which discovery was ordered completed violated Rule 29”); Banks v. City of Philadelphia, 309 F.R.D. 287, 291 (E.D. Pa. 2015) (explaining that discovery deadlines in scheduling order cannot be extended by parties' informal stipulation alone); Rakhra v. PHW Las Vegas, LLC, 2014 WL 99302, at *3 (D. Nev. Jan. 3, 2014) (“Counsel for Plaintiff was not at liberty to ignore the court-ordered deadlines and notice [party's] deposition after the expiration of the discovery cutoff[.]”); cf. Martinez v. Palm Bay Police Dep't, 2006 WL 8448586, at *3 n.3 (M.D. Fla. Apr. 4, 2006) (recognizing that parties may agree to conduct discovery after the close of discovery, but that they “should not expect the Court to resolve discovery disputes arising after the formal deadline”). *7 As evidenced here, the rules do not contemplate that parties will engage in discovery past a court-imposed deadline based solely on their own informal agreement. And while the parties certainly may agree, without court approval, to conduct discovery after the court-imposed deadlines, if they do so and disputes arise, this Court lacks jurisdiction to resolve such disputes. See, e.g., Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986) (finding no abuse of discretion when district court denied motion to compel responses to discovery served after deadline set for the end of discovery and requesting party never filed a motion for an extension of time). Even assuming Plaintiff breached the terms of the parties' informal agreement, the entirety of the dispute that is the basis for Defendant's sanctions request transpired after the expert discovery cut-off date scheduled by the District Judge. Accordingly, the discovery dispute and related sanctions request are beyond this Magistrate Judge's jurisdiction and the Court declines to award sanctions based on alleged misconduct that occurred as a result of an informal agreement after the formal close of discovery. CONCLUSION For the foregoing reasons, the Motion for Sanctions is DENIED. IT IS SO ORDERED. Footnotes [1] Defendant also argues that Plaintiff's Motion to Compel depositions of Defendant's third-party witnesses (Dkt. No. 131) should be stricken. (Dkt. No. 142 at 5-7.) However, on November 2, 2020, the Court entered an order striking Plaintiff's motion. (Dkt. No. 143.) Thus, the Court will not address that argument again in this Order.