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McMiller v. Hiykel

United States District Court, D. Nebraska

August 4, 2017

JAZMYNE MCMILLER, Plaintiff,
v.
FRED J. HIYKEL, Defendant.

          ORDER

          SUSAN M. BAZIS UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff's Motion for Enlargement of Time for Discovery and Limited Depositions (Filing No. 52) and Amended Motion for Enlargement of Time for Discovery and Limited Depositions (Filing No. 53). The motions will be denied.

         BACKGROUND

         This action was removed from state court on July 14, 2015. (Filing No. 1.) Plaintiff's original counsel was permitted to withdraw from the case on August 1, 2016 (Filing No. 25), and Plaintiff's current counsel entered a formal appearance on September 21, 2016. (Filing No. 28.) Following a planning conference with counsel for the parties on October 12, 2016, the Court entered a progression order (Filing No. 31), setting Plaintiff's expert witness disclosure deadline as December 1, 2016. The deposition deadline was set as March 31, 2017, and written discovery was to be completed in advance of the deposition deadline. Discovery motions were to be filed no later than the deposition deadline. The summary judgment deadline was set as February 13, 2017. However, this deadline was later extended to March 31, 2017. (Filing No. 36.)

         Defendant served requests for admissions and requests for production of documents upon Plaintiff on February 9, 2017. (Filing No. 43-3.) Plaintiff served discovery requests on Defendant on May 2, 2017. (Filing No. 42.) On or about May 15, 2017, Plaintiff served answers to Defendant's discovery requests. (Filing No. 58.) Defendant served responses to Plaintiff's discovery requests on June 2, 2017, objecting on the grounds that the requests were served after the close of written discovery. (Filing Nos. 47, 54-1.)

         On June 9, 2017, Plaintiff filed a motion requesting that the time for “providing and answer[ing]” discovery be extended, and that the deposition deadline be extended to allow Plaintiff to depose Officer Fred Hiykel and Police Chief Todd Schmaderer. (Filing No. 52.) Plaintiff filed an amended motion requesting this relief on June 12, 2017. (Filing No. 53.) Notably, Plaintiff's brief offered in support of her Amended Motion for Enlargement of Time for Discovery and Limited Depositions also requests that the expert disclosure deadline be extended, but this request is not included in either motion. (Filing No. 54.)

         On June 15, 2017, a telephone conference was held between counsel for the parties and the Court to discuss Plaintiff's motions. During the conference, Defendant's counsel informed the Court that Defendant opposed the motions and wanted to submit a brief in opposition. To accommodate the filing of a brief and a ruling on the motions, the pretrial conference and trial were continued. The Court advised the parties that the pretrial conference and trial would be rescheduled following the ruling on Plaintiff's motions.

         DISCUSSION

         Defendant argues that Plaintiff's motions should be denied because Plaintiff has not been diligent in meeting the scheduling order deadlines. The Court agrees.

         Plaintiff has requested that the Court modify the progression order by extending the written discovery, deposition, and expert disclosure deadlines. Under the Federal Rules of Civil Procedure, a progression schedule “may be modified only for good cause.” Fed.R.Civ.P. 16(b)(4) (emphasis added). “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 and Blue Shield of Florida, Inc., 192 F.R.D. 308, 309 (M.D. Fla. 2000) (internal quotation omitted). However, 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).

         Plaintiff has not shown good cause for modification of the progression order or that she has acted diligently in meeting scheduling deadlines. The deadline for completing depositions and written discovery was March 31, 2017. The deadline for filing discovery motions was also March 31, 2017. It appears that Plaintiff did not even attempt to serve any written discovery upon Defendant until after the written discovery deadline had expired. (Filing No. 42.) Although Defendant filed a summary judgment motion, he did not do so until March 31, 2017, which was the deposition and discovery deadline. (Filing No. 37.) Still, in opposition to the summary judgment motion, Plaintiff's counsel represented that he was “ready to move this case to trial.” (Filing No. 43-3.) However, now counsel states he requires additional time to conduct discovery, including the deposition of Fred Hiykel, the named defendant. Counsel has provided no legitimate explanation for his failure to seek this discovery at an earlier time, nor has he identified any new circumstances warranting an extension.

         The most Plaintiff's counsel offers to support his extension request is the fact that he did not enter a formal appearance in this case until September 21, 2016. Plaintiff's counsel represents that prior to that time, no discovery had been conducted, and he had to rebuild the case file. However, Plaintiff counsel participated in the planning conference at which the discovery, deposition, and expert disclosure deadlines were seemingly discussed. (Filing No. 31.) Also, counsel could have requested deadline extensions well in advance of the expiration of those deadlines, yet he did not do so. Plaintiff's counsel has offered no explanation for this failure. Notably, Plaintiff's counsel did not even reply to Defendant's opposition to these motions.

         In short, Plaintiff has not shown good cause supporting modification of the progression order, let alone excusable neglect. Plaintiff has not demonstrated that she (or her counsel) acted diligently to meet scheduling deadlines or that any recent development warrants an extension of those deadlines. Additionally, it must be noted that reopening discovery at this late stage would unduly prejudice Defendant. This is especially true with respect to Plaintiff's request for an extension of the expert disclosure deadline. Allowing Plaintiff to disclose expert witnesses at this juncture-eight months after the expiration of the deadline-would likely create a host of additional discovery that would further delay the trial of this matter.

         Accordingly, IT IS ORDERED that Plaintiff's Motion for Enlargement of Time for Discovery and Limited Depositions (Filing No. 52) and Amended Motion for Enlargement of Time for Discovery and Limited Depositions (Filing No. 53) are ...


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