FAITH FOR COMMUNITY EQUITY; TOCHIRO KOCHIRO KOVAC, individually and on behalf of a class of persons in the State of Hawaii who, because of their national origins, have limited English proficiency Plaintiff,
STATE OF HAWAII; HAWAII DEPARTMENT OF TRANSPORTATION; GLENN OKIMOTO, in his official capacity as the Director of the Hawaii Department of Transport, Defendants.
ORDER AFFIRMING MAGISTRATE JUDGE ORDER DENYING PLAINTIFFS’ MOTION TO ALTER THE RULE 16 SCHEDULING ORDER TO ALLOW THE DEPOSITION OF REBECCA GARDNER
Susan Oki Mollway, Chief United States District Judge.
Plaintiffs Faith Action for Community Equity and Tochiro Kochiro Kovac (collectively, “Faith Action”) appeal from Magistrate Judge Richard L. Puglisi’s order of April 14, 2015. That order denied Faith Action’s motion to modify the Rule 16 Scheduling Order so that Faith Action could depose Rebecca Gardner after the discovery cut-off. Because his order is neither clearly erroneous nor contrary to law, this court affirms Magistrate Judge Puglisi.
II. BACKGROUND FACTS.
On September 6, 2013, Faith Action filed the Complaint in this matter. See ECF No. 1. A First Amended Complaint was filed on February 11, 2014. See ECF No. 60.
The Rule 16 Scheduling Order of May 16, 2014, set a trial date of May 19, 2015. See ECF No. 98 at 2, PageID # 1546. On December 29, 2014, the court continued the trial date to May 28, 2014. See ECF No. 130. The Rule 16 Scheduling Order set a discovery cut-off of March 20, 2015, and stated, “Unless otherwise permitted by the Court, all discovery motions and conferences made or requested pursuant to Federal Rules of Civil Procedure, Rules 26 through 37 inclusive of LR 26.1, 26.2 37.1 shall be heard no later than thirty (30) days prior to the discovery deadline.” See ECF No. 98 at 3, PageID # 1547.
On August 28, 2014, the court ordered that the trial date could not be continued except through a motion, which the trial judge indicated was unlikely to be granted. See ECF No. 118.
According to Defendant State of Hawaii Department of Transportation, Faith Action conducted no discovery from September 2014 through January 2015. See ECF No. 191, PageID # 2991.
On February 5, 2015, counsel for Faith Action sent counsel for the State an e-mail, asking for dates that six people would be available to be deposed. The six proposed deponents included Scott Haneberg and Rebecca Gardner. See ECF No. 185-3, PageID # 2874; ECF No. 185-9, PageID # 2900. The parties then discussed the possibility that the proposed depositions might not be completed before the discovery cut-off. The State sent Faith Action an e-mail stating, “If we are unable to get all of the depositions completed by 3/20, we will advise the Court that the parties need to move the discovery cut off date because of problems with scheduling. I have never had a court refuse to do that.” ECF No. 185-3, PageID # 2873. The State clarified later the same day that “the possibility of moving the discovery cut-off date would be limited to just accommodating depositions that were timely requested but could not be completed before the cut-off date due to the deponent’s scheduling issues.” Id., PageID # 2872 (emphasis added).
On February 18, 2015, Faith Action served notices of deposition for Scott Haneberg, Rebecca Gardner, and others. See ECF No. 150, PageID # 2521. Faith Action noticed the deposition of Haneberg for a day he was off-island. See Decl. of John Molay ¶ 6, ECF No. 191-1, PageID # 2998. On March 4, 2015, Faith Action’s counsel sent an e-mail to the State, asking for proposed dates for a rescheduled Haneberg deposition, given Haneberg’s unavailability until after the March 20 discovery cut-off. See id.; ECF No. 185-9, PageID # 2888. The State responded the same day that the parties could “raise the issue with Judge Puglisi so he is aware that the deposition could not be completed by 3/20.” ECF No. 185-9, PageID # 2888. The parties rescheduled Haneberg’s deposition for March 27, 2015, executing a stipulation to extend the discovery cut-off to allow that deposition. See
Molay Depo . ¶¶ 7-8, ECF No. 191-1, PageID # 2999; see also ECF No. 185-11, PageID # 2904.
On February 26, 2015, a status conference was held in Ah Chong v. State of Hawaii, Civ. No. 13-00663 LEK/KSC. See ECF No. 185-4, PageID # 2876. Paul Alston, Claire Wong Black, and Gavin K. Thornton, counsel for Faith Action in this case, are also counsel for the plaintiff in Ah Chong. John Molay is counsel for the State in both cases. Id. Paul Alston requested a settlement conference in Ah Chong on March 19, 2015. That date was picked over Molay’s objection. See Molay Decl. ¶ 10, ECF No. 191-1, PageID # 2999.
Rebecca Gardner’s deposition had been set for March 19, 2015, meaning that the settlement conference in Ah Chong conflicted with Gardner’s scheduled deposition. On March 6, 2015, Faith Action's counsel requested that Gardner’s deposition be rescheduled. See ECF No. 185-5, PageID # 2878. Andrew Salenger, co-counsel for the State, responded that he or Molay would be “available on the following dates in March: 10, 13, 17, 20, 23, or 24.” See ECF No. 185-5, PageID # 2877. The State told Faith Action to “check with Frances Lum . . . in terms of moving the OLA depos, ” presumably indicating that the proposed dates were conditioned on the availability of Ms. Lum, another State attorney. Apparently, counsel for Faith Action went ahead and set Gardner’s deposition for March 23, 2015.
On March 18, 2015, counsel for Faith Action asked the State whether it would be amenable to adding the rescheduled Gardner deposition to the stipulation extending the discovery cut-off that the parties were executing with respect to the Haneberg deposition. See ECF No. 185-10, PageID # 2902. Counsel for the State responded, “I think a separate stipulation would be better.” Id.
On March 19, 2015, Faith Action sent the State a proposed stipulation to extend the discovery cut-off with respect to Gardner. See ECF No. 185-12, PageID # 2906. The State responded the same day that it was unwilling to sign the stipulation because the deposition, set right before the discovery cut-off, was “unilaterally changed solely for ...