THOMPSON v. BMW OF NORTH AMERICA LLC 10 (2020)

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO AMEND THE SCHEDULING ORDER [Dkt. 70]

I. INTRODUCTION

On August 29, 2017, Plaintiff Don Thompson filed this action against Defendant BMW of North America, LLC (“BMW”), asserting five causes of action for violations of the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”) and one cause of action for fraud. (See Dkt. 1-1 [Complaint, hereinafter “Compl.”].) Before the Court is Plaintiff's motion to amend the scheduling order to allow him to supplement his expert disclosures. (Dkt. 70 [hereinafter, “Mot.”].) For the following reasons, that motion is GRANTED IN PART and DENIED IN PART.¹

II. BACKGROUND

The gravamen of Plaintiff's Complaint is that BMW sold him a defective vehicle, failed to repair the defect after a reasonable number of opportunities, and ultimately refused to repurchase the vehicle. (See generally Compl.) On September 14, 2010, Plaintiff purchased a new 2011 BMW 550i (the “Vehicle”) from a dealership in Southern California for $81,495. (Dkt. 46 [Order Granting in Part and Denying in Part Defendant's Motion for Summary Judgment, hereinafter “MSJ Order”] at 2.) Plaintiff began experiencing issues with the Vehicle's oil consumption soon after he purchased it. (Id.) Over the next few years, he was forced to bring the Vehicle in for service on multiple occasions because the “low oil warning” light kept flashing. (Id. at 2–4.) After one of these instances, Plaintiff phoned BMW to request a repurchase. (Id.) BMW allegedly told Plaintiff that “repurchase was not an option,” and that he should contact the dealer about repairs. (Id.)

On August 29, 2017, Plaintiff filed the instant action in Orange County Superior Court asserting five causes of action for violations of the Song-Beverly Act, Cal. Civ. Code §§ 1791.1, 1791.2(a), 1793.2(a)(3), 1793.2(b), 1793.2(d), and 1794, and one cause of action for fraud. (See generally Compl.) On January 18, 2018, the Court issued a scheduling order pursuant to Federal Rule of Civil Procedure 26(f). (Dkt. 15.) Thereafter, the Court granted several stipulations continuing the discovery deadlines, and fact discovery eventually closed on December 2, 2018. (Dkt. 30.) However, the parties stipulated to conducting the depositions of both experts in the case after the close of fact discovery. (Dkt. 29.) Discovery remains closed with the exception of those depositions. (Dkt. 58.) On January 10, 2019, the Court granted BMW's summary judgment motion as to Plaintiff's fraud claim but denied it as to his Song-Beverly Act claims. (MSJ Order.)

In the instant motion, Plaintiff seeks amendment of the scheduling order so that he can supplement his expert disclosures in two ways prior to his expert's deposition.² The first proposed supplemental disclosure concerns Michael Murray, a BMW Senior Product Engineer. Plaintiff sought to depose Mr. Murray in 2018 during discovery, but on two instances, BMW objected to Plaintiff's notices of deposition. (Dkt. 70-2 [Declaration of Dara Tabesh, hereinafter “Tabesh Decl.”] Exs. 1–2.) Specifically, BMW contended that Mr. Murray, “a senior employee ․ who resides in New Jersey ․ does not have information relevant to any party's claim or defense.” (Id. at Ex. 1.) However, on November 8, 2019—nearly a year after discovery in this case closed—BMW noticed Mr. Murray's deposition in connection with four other cases concerning the 2011 BMW 550i, the same make and model of vehicle as is at issue here. (Id. at Ex. 3.) Murray's deposition took place on November 21, 2019 in the matter of Broadhag v. BMW of North America, Los Angeles Superior Court Case No. 8C668738. In the instant motion, Plaintiff seeks to produce Mr. Murray's deposition transcript from Broadhag and the documents disclosed in connection with it to his expert so that the information can be added to his expert report.

Plaintiff also seeks to supplement his expert disclosures with certain warranty records that BMW was ordered to produce in Jensen v. BMW of N. Am., LLC, S.D. Cal. Case No. 3:18-cv-00103-WQH-NLS. The plaintiff in Jensen similarly alleges that his 2011 BMW 550i had oil consumption defects. See Jensen v. BMW of N.A., LLC, 328 F.R.D. 557, 560 (S.D. Cal. 2019). Plaintiff does not provide a detailed description of the records at issue, but they appear to be a series of consumer complaints regarding oil consumption defects in the 2011 BMW 550i. (See generally Mot.)

III. LEGAL STANDARD

“The district court is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order ․ will not be disturbed unless they evidence a clear abuse of discretion.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Under Federal Rule of Civil Procedure 16, once a scheduling order has been entered, it may not be modified except upon a showing of “good cause” and by leave of the Court. Fed. R. Civ. P. 16(b)(4); see also Local Rule 16-14. “Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Thus, “[a]lthough the existence or degree of 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.” Id. “If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted.” Zivkovic, 302 F.3d at 1087.

IV. ANALYSIS

A. The Murray Deposition

Plaintiff first seeks to supplement his expert disclosures with the transcript of Mr. Murray's deposition and the documents produced in connection with that deposition. Plaintiff contends that good cause exists for such an amendment because he diligently sought to depose Mr. Murry in 2018 while discovery was open. According to Plaintiff, his efforts to depose Mr. Murray were thwarted by BMW's representation that Mr. Murray had no relevant information regarding his claims. (See Tabesh Decl. Exs. 1–2.) The Court agrees that Plaintiff was diligent and that good cause exists to amend the schedule order.

When a party moves to amend the scheduling order pursuant to Rule 16(b), courts primarily consider the diligence of that party. See Johnson, 975 F.2d at 609. Given that Plaintiff twice sought to depose Mr. Murray during discovery in this case, the Court is cannot find that he was not diligent. See J.W. Pharm. Corp. v. Kahn, 2014 WL 12639070, at *2 (C.D. Cal. Dec. 11, 2014) (granting motion for leave to amend the scheduling order when plaintiff diligently attempted to take depositions during discovery, “but its efforts appear to have been thwarted”). The fact that Mr. Murray was never deposed in this case was not due to Plaintiff's negligence, but instead his reasonable reliance on BMW's assertion that Mr. Murray possessed no relevant information. The veracity of that assertion was undermined in November 2019 when BMW noticed Mr. Murray's deposition in a different case concerning oil consumption defects in the 2011 BMW 550i. (Tabesh Decl. Ex. 3.) Documents produced in connection with Mr. Murray's deposition appear to indicate that he helped monitor the oil consumption issues that form the basis of Plaintiff's claims. (See, e.g., Dkt. 75-1 [Reply Declaration of Dara Tabesh] Ex. E.) Just days after learning of BMW's change in position regarding Mr. Murray, Plaintiff contacted BMW about amending the scheduling order in this case. (Tabesh Decl. Ex. 4.) Accordingly, there is good cause to amend the scheduling order and to permit Plaintiff to supplement his expert disclosures with Mr. Murray's deposition transcript and the documents produced pursuant it.³

B. The Warranty Records Produced in Jensen

Plaintiff has not met his burden of showing that good cause exists to allow him to supplement his expert disclosures with the warranty records produced in Jensen. Plaintiff's primary argument is that the records in question are relevant to his claim that BMW acted willfully when it refused to repurchase his allegedly defective vehicle. This argument ignores the relevant standard that applies when a party seeks to amend a scheduling order pursuant to Rule 16(b). The question is not whether the additional records are relevant, but whether good cause exists for a departure from the scheduling order. See Fed. R. Civ. P. 16(b)(4).

Plaintiff has failed to put forth any argument for why good cause exists here. Again, the relevant inquiry under Rule 16 starts with Plaintiff's diligence. See Zivkovic, 302 F.3d at 1087 (“If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted.”). This is Plaintiff's first attempt to have BMW produce these warranty records in this case despite the fact that the court in Jensen ordered them to be produced over one year ago. See Jensen, 328 F.R.D. at 559 (ordering production of the records in question on January 15, 2019). Regardless of whether these records may be relevant to Plaintiff's claims, the Court cannot find that Plaintiff has been diligent in seeking their production. At this point, fact discovery has been closed for over one year. The Court declines to inject a slew of new documents—which apparently span nearly 4,000 pages—into the case at this juncture absent a more persuasive showing of good cause. See Johnson, 975 F.2d at 610 (“A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded.” (internal quotations omitted)). Plaintiff's motion is DENIED to the extent that he seeks permission to supplement his expert disclosures with the Jensen warranty records.

V. CONCLUSION

For the foregoing reasons, Plaintiff's motion to amend the scheduling order is GRANTED IN PART and DENIED IN PART.

FOOTNOTES

1.   Having read and considered Plaintiff's motion, the Court finds this matter appropriate for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set for February 10, 2020, at 1:30 p.m. is hereby vacated and off calendar.

2.   The deposition is currently scheduled for February 26, 2020.

3.   The Court is not persuaded by BMW's argument that the documents at issue cannot be disclosed to Plaintiff's expert because they were produced pursuant to a protective order in another case. (See Dkt. 74 [BMW's Opposition to Motion to Amend Scheduling Order] at 2.) Plaintiff has offered to stipulate to an identical protective order here. (Dkt. 75-1 [Reply Declaration of Dara Tabesh] Ex. E.) Accordingly, BMW's concerns regarding the confidentiality of the documents lack merit.

CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE