Julio Ortiz, et.al., v. Vortex Cellular, et. al. No. CV 19-08184-MCS (ASx) United States District Court, C.D. California Filed December 15, 2020 Counsel Attorneys Present for Plaintiffs: Nazareth M. Haysbert. Attorneys Present for Defendants X-Wireless, LLC, and Prepaid Wireless Group, LLC: Rosaline Ayoub, Sally Hosn1. Attorneys Present for Defendant Amerimex: Carolyn Lawson. Attorneys Present for Sprint Spectrum, L.P: Alan Trock. Sagar, Alka, United States Magistrate Judge Proceedings (In Chambers): Order (1) DENYING Ex Parte Application to Stay Depositions; (2) DENYING Ex Parte Application for Order Compelling Witnesses for Deposition; (3) GRANTING motion for sanctions; (4) DENYING Motions for Protective Orders and to Quash Notices of Depositions as moot; and (5) GRANTING request for additional briefing re Third Party Deposition. (Dkt. Nos. 57-58, 61-63, 65, 70) *1 On December 9, 2020, Defendants Prepaid Wireless Group, LLC, and X-Wireless, LLC, (“Wireless Defendants”) filed an Ex Parte Application for Order staying depositions noticed by Plaintiffs (Dkt. No. 58), pending the hearing on their concurrently filed Motion for a Protective Order and to Quash Plaintiffs’ deposition notices, and request for monetary sanctions. (Dkt. No. 57). On December 10, 2020, Plaintiffs filed their oppositions to the Ex Parte application. (Dkt. No. 61). On December 11, 2020, Plaintiffs filed an Ex Parte Application for an Order compelling witnesses for deposition, an order setting a status conference to set deposition dates, or in the alternative, extending discovery deadlines by 90 days. (Dkt. No. 62). On the same date, Defendant Amerimex Communications Corp (“Amerimex”) filed its opposition to Plaintiffs’ Ex Parte Application (Dkt. No. 65), and a Motion for a Protective Order and to Quash Plaintiffs’ 30(b)(6) deposition notice. (Dkt. No. 63). On December 12, 2020, the Wireless Defendants filed their opposition to Plaintiffs’ Ex Parte Application. (Dkt. No. 70). On December 14, 2020, District Judge Scarsi denied Plaintiffs’ Ex Parte Application for an Order extending discovery deadlines and referred Plaintiffs’ request for an order compelling Defendants to produce witnesses for deposition and request for a status conference to set discovery dates to the undersigned. (Dkt. No. 71). A telephonic hearing was held on December 14, 2020 to address the pending ex parte applications and the parties’ discovery disputes regarding the scheduling of depositions in this case. The Court, having carefully reviewed the above-referenced filings and considered the arguments presented at the hearing, issued the following order: The Wireless Defendants’ ex parte application for an order staying depositions pending the hearing on Defendants’ concurrently-filed Motion to quash deposition notices is DENIED. The law on ex parte applications is well settled in this District. In order to justify ex parte relief, the moving party must establish (1) that its cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed procedures; and (2) that it is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect. See Mission Power Eng'g Co. v. Continental Cas. Co., 883 F.Supp. 488, 492 (C.D. Cal. 1995). Notwithstanding Plaintiffs’ counsel's failure to confer with counsel for Defendants regarding mutually acceptable dates for the depositions of 30(b)(6) witnesses for the Wireless Defendants and third-party Paul Greene,[2] Plaintiffs provided sufficient notice of the depositions and the Wireless Defendants have failed to demonstrate that compliance with the subpoenas imposes an undue burden. That Defendants prefer to take the depositions of Plaintiffs prior to the depositions of their 30(b)(6) witnesses and Paul Greene does not meet the standard for ex parte relief. As Plaintiffs point out, Defendants previously noticed the depositions of Plaintiffs and canceled them without re-scheduling, and therefore, have “created the situation from which they now seek protection.” (Dkt. No. 61 at 4). *2 Plaintiffs’ ex parte application for an order compelling Defendants’ witnesses to appear for deposition is DENIED. As Defendant Amerimex points out in their opposition, Plaintiffs failed to provide proper notice of their intent to seek ex parte relief to compel the deposition of Defendants’ witnesses or alternatively seek an extension of the discovery cut-off date. See Dkt. No. 65 at 5; Dkt. No. 62-1. On the merits, the Court finds that Plaintiffs have failed to establish that they would suffer “irreparable prejudice” if they did not proceed with the noticed depositions on the scheduled dates or in December, 2020. Plaintiffs’ contention that the depositions must take place in mid-December in order to provide sufficient time to seek Court review prior to the discovery cut-off date is not a sufficient basis for ex parte relief, particularly since Plaintiffs are at fault for waiting until the end of the discovery period to notice the depositions. Moreover, Plaintiffs’ request for a court order compelling the witnesses to appear for depositions is not ripe for Court review. Defendants are not refusing to designate or produce their 30(b)(6) witnesses; they are merely requesting that counsel meet and confer regarding mutually available dates for those depositions. After receiving Plaintiffs’ notice of deposition for a 30(b)(6) witness for Defendant Amerimex, counsel for Amerimex notified Plaintiffs’ counsel, by letter dated December 8, 2020, that neither she nor her client could appear for the noticed deposition on December 15, 2020, and provided several alternative dates on which the deposition could proceed in January. (Dkt. No. 65 at 4-5; Lawson Decl., ¶¶ 13-16, Exh. 7). However, counsel for Plaintiffs refused to continue the date for the deposition. (Lawson Decl. ¶19). On December 10, 2020, Amerimex served its objection to the Notice of Deposition and the following day, filed its opposition to Plaintiffs’ ex parte application, (Lawson Decl., ¶ 20; Dkt. No. 65), and a motion for protective order regarding the deposition. (Id., Dkt. No. 63). Amerimex seeks sanctions for attorneys’ fees and costs incurred in its attempts to meet and confer regarding the deposition notice, and preparing objections to the deposition notice and the motion for a protective order. Dkt. No. 63 at 10-11; Lawson Decl., ¶ 24. The presumptively mandatory fee-shifting provisions of Federal Rule of Civil Procedure 37(a)(5) apply to discovery litigation and abusive conduct in the course of discovery proceedings. The Court finds that sanctions are appropriate here. Plaintiffs refusal to consider alternative dates for the 30(b)(6) deposition of Amerimex, after being notified of its counsel's inability, due to scheduling conflicts, to attend the deposition on the date it was unilaterally scheduled by Plaintiffs, amounts to “conduct [that] necessitated the motion” and permits the Court, in its discretion, to order Plaintiffs’ counsel to pay the “reasonable expenses incurred in making the motion, including attorneys’ fees.” Fed.R.Civ.P. 37(a)(5). Counsel for Amerimex is directed to submit a declaration in support of her request for sanctions, with appropriate documentation attached, setting forth the time, fees and costs incurred in connection with the preparation of the motion for protective order. The declaration, and a proposed order for the Court's review, must be filed no later than one week from the date of this Order. Notwithstanding the Court's denial of the ex parte applications, the noticed depositions did not proceed on the scheduled dates and the parties are at an impasse regarding the scheduling of the following depositions: Plaintiffs Julio Ortiz and Ernestine Ortiz, Anthony Archuleta, Juanita Perez, Paul Greene, and 30(b)(6) witnesses for the Wireless Defendants and Defendant Amerimex. The Court directs the parties to meet and confer – no later than Thursday, December 17, 2020 at noon - regarding the scheduling of these depositions on the following dates: January 5, 6, 7, 8, 12, 13, 14 and 15, 2021. If it is necessary to schedule one or more depositions on January 19 or 20, 2021, the parties must submit a joint stipulation to extend the discovery cut-off date for the purpose of taking the designated deposition(s).[3] *3 A telephonic status conference is scheduled for December 17, 2020 at 1:30 p.m. to resolve any disputes relating to the scheduling of depositions. The call-in information will be emailed to the parties. The Wireless Defendants’ Motion for a Protective Order and to Quash Plaintiffs’ deposition notices is DENIED as moot, and the January 7, 2020 hearing date on the motion is vacated. The Wireless Defendants’ request for monetary sanctions relating to the filing of the motion for a Protective Order is DENIED. Defendant Amerimex’ motion for a protective order and to Quash Plaintiffs’ deposition notice is DENIED as moot, and the January 15, 2020 hearing date on the motion is vacated. The Court heard argument on the scope of questioning regarding personal financial information directed to third party witness, Paul Greene, who may also be designated as a 30(b)(6) witness for the Defendant X Wireless, and finds that Mr. Greene may be asked about the structure and ownership of the companies involved in the manufacture or distribution of the phone at issue and specifically his ownership interest in the companies. If Plaintiffs wish to make further inquiries about Mr. Greene's finances or the finances of the companies, they must submit supplemental briefing in support of that request no later than December 18, 2020. The Wireless Defendants may file a responsive brief no later than December 23, 2020. The matter will be submitted on the date that Defendants file their response or the day after it is due. On December 11, 2020, Plaintiffs filed a motion for a protective order to permit the parties to designate sensitive information as confidential. (Dkt. No. 69). The Court understands that the parties are in the process of finalizing a stipulated protective order and directs the parties to submit a stipulated protective for the Court's review within one week of the date of this Order. Counsel for Plaintiffs indicated that a dismissal relating to Defendant Sprint would be filed by December 18, 2020. The Wireless Defendants’ motion to compel responses to discovery requests (Dkt. No. 52) is currently scheduled to be heard on January 7, 2020. (Dkt. No. 54). Counsel for Plaintiffs indicated that Plaintiffs have provided supplemental responses to the Wireless Defendants’ discovery requests on December 11, 2020, and will be providing additional responses which may obviate the need for a hearing on the motion. Accordingly, Defendants are directed to file, no later than December 30, 2020, a notice of withdrawal of the motion or a status report regarding the discovery issues that remain in dispute. IT IS SO ORDERED. Footnotes [1] Ms. Hosn is directed to file an appearance on the docket of this case. [2] Third Party Paul Green is represented by counsel for the Wireless Defendants. [3] The parties are reminded that any requests for extensions of time to complete discovery must be submitted to District Judge Scarsi.