United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, District Judge.
This matter is before the court on multiple motions filed by Plaintiff Stephen Cavanaugh ("Plaintiff"). Plaintiff's motions will each be addressed below.
This action was filed on March 24, 2014. (Filing No. 1.) On July 23, 2014, the court issued an order dismissing Plaintiff's claims for equitable relief and giving Plaintiff 30 days to file an amended complaint. (Filing No. 11.) Plaintiff filed his Amended Complaint on August 12, 2014. (Filing No. 12.) The court allowed the Amended Complaint to proceed to service of process. (Filing No. 13.)
Defendants filed their Answer on February 13, 2015. (Filing No. 29.) The court entered a Progression Order on February 17, 2015. (Filing No. 30.) The Progression Order set March 16, 2015, as the deadline for completion of written discovery, and April 24, 2015, as the deadline for filing motions to compel. The deadline for filing dispositive motions was established as May 25, 2015. The order did not specifically include a deadline for amending pleadings or adding parties.
Plaintiff served written discovery requests on February 25, 2015. (Filing No. 37.) Defendants responded to Plaintiff's requests on March 13, 2015. (Filing No. 40.)
Plaintiff served a "Motion for Subpoena/Personal Service" on March 17, 2015, requesting that the court issue a subpoena upon the Hall County Probation Office directing it to produce documents. (Filing No. 43.) The motion also requested that the subpoena be served by the United States Marshal, Hall County Sheriff or other appropriate individual. ( Id. ) On April 24, 2015, Plaintiff filed four additional motions, including (1) a motion requesting additional time to serve interrogatories, requests for admission and requests for production (Filing No. 46); (2) a motion to proceed against Defendants Fred Ruiz and Jimmy Vann in their individual capacities (Filing No. 47); (3) a motion to add Justin Richardson as a defendant in this case (Filing No. 48); and (4) a motion to extend the time for filing dispositive motions to July 20, 2015 (Filing No. 49).
I. Motion for Issuance of Subpoena and Motion for Extension of Time to Serve Additional Discovery
Plaintiff has requested that the court modify the Progression Order by extending the written discovery deadline. A progression schedule "may be modified only for good cause." Fed.R.Civ.P. 16(b)(4). "In demonstrating good cause, the moving party must establish that the scheduling deadlines cannot be met despite a party's diligent efforts." Thorn v. Blue Cross & Blue Shield of Fla., Inc., 192 F.R.D. 308, 309 (M.D. Fla. 2000) (internal quotation and citation omitted). When a motion to modify is made after the deadline set in the progression order, the court may extend time "if the party failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). "[T]he determination as to what sort of neglect is considered excusable is an equitable one, taking account of all relevant circumstances surrounding the party's omission." In re Harlow Fay, Inc., 993 F.2d 1351, 1352 (8th Cir. 1993) (internal quotation omitted).
Under the Progression Order, the deadline for serving written discovery was March 16, 2015. Plaintiff did not serve his motion seeking documents from the Hall County Probation Office until March 17, 2015. Plaintiff's motion specifically seeking an extension of the discovery deadline was not filed until April 24, 2015. Plaintiff maintains that an enlargement of time is necessary because, after reviewing Defendants' March 14, 2015, discovery responses, he believes "additional relevant documents" should be produced. However, he did not specify what documents should be produced by Defendants or why any such documents are relevant to his case. Separately, Plaintiff waited over one month past the expiration of the discovery deadline to request that the deadline be extended. Plaintiff has not offered any explanation for his failure to request an extension at an earlier time. In short, Plaintiff has not shown any cause warranting modification of the Progression Order. Therefore, Plaintiff's motions to extend (Filing Nos. 43 and 46) will be denied.
II. Motions to File a Second Amended Complaint
Under the Local Rules of this court, any party who moves for leave to amend a pleading, including a request to add parties, must attach a copy of their proposed amended pleading to the motion to amend. NECivR 15.1. Plaintiff did not comply with this requirement. Therefore, Plaintiff's motions seeking leave to file a second amended complaint (Filing Nos. 47 and 48) will be denied.
Moreover, even if Plaintiff had complied with the Local Rules, denial of his motions to amend would nevertheless be appropriate. The court is aware that under Federal Rule of Civil Procedure 15, a court should "freely give leave" to amend a pleading "when justice so requires." Fed.R.Civ.P. 15. However, a party does not have an absolute right to amend and "denial of leave to amend may be justified by undue delay, bad faith on the part of the moving party, futility of the amendment ...