United States District Court, D. Nebraska
TIMOTHY A. GILKERSON, Plaintiff,
NEBRASKA COLOCATION CENTERS, L.L.C., AMERICAN NEBRASKA LIMITED PARTNERSHIP, and RALPH EDWARDS PRODUCTIONS, INC., Defendants.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
matter is before the court on Plaintiff Gilkerson's
Motion to Amend the Progression Order and to Compel the
Issuance of a Subpoena Duces Tecum, (Filing No.
103), and on Defendant Nebraska Colocation Centers,
L.C.C.'s (“NCC”) Objection to Plaintiff's
Motion. (Filing No. 105).
Timothy Gilkerson filed his complaint in the District Court
of Douglas County, Nebraska on April 8, 2014. (Filing No.
1-1). Defendant NCC removed the case to this court on
January 27, 2015. (Filing No. 1). Plaintiff's
complaint alleges his employment for Defendant was terminated
without cause in violation of a valid employment agreement.
(Filing No. 1-1). One provision of the Employment
Agreement (the “Agreement”) at issue states that
if Defendant NCC terminated Gilkerson's employment
without cause, Plaintiff would potentially be entitled to a
retirement bonus equal to a fixed percentage of NCC's
value, but only if NCC's earnings before interest, taxes,
depreciation, and amortization (“EBITDA”) was a
certain amount on the date of the Agreement's
termination. (Filing No. 1-1 at CM/ECF p. 8).
was completed in this case in late 2015 and the pretrial
conference and trial were set for mid-2016. In May 2016, this
court granted a Motion for Summary Judgment filed by NCC and
entered Judgment in the case. (Filing Nos. 65 &
66). The Eighth Circuit Court of Appeals reversed and
remanded the decision of the District Court on June 21, 2017.
(Filing No. 77).
undersigned held a scheduling conference with the parties on
August 22, 2017, and set the pretrial and trial date for
February of 2018. (Filing No. 83). In September, the
undersigned was advised of a discovery dispute concerning the
computation of NCC's EBITDA and on October 3, 2017, after
conferring with the parties, the undersigned set a briefing
schedule for the Plaintiff to file any motion to compel
supplemental discovery regarding the calculation of NCC's
EBITDA. (Filing No. 90). No motion to compel was filed.
October 5, 2017, Defendant NCC filed a separate lawsuit
against an individual, Leo Khayet in the District of
Nebraska. See Nebraska Data Centers, LLC v. Khayet,
8:17cv00369LSCCRZ. NCC's lawsuit against Khayet involves
an alleged breach of a consulting agreement contract between
the two parties. On November 7, 2017, Gilkerson filed a
notice of his intent to serve a subpoena duces tecum on
Khayet. (Filing No. 94). Defendant NCC objected to
the notice. Plaintiff now moves for an order amending the
progression order and compelling the third-party subpoena.
to Rule 16(b)(4), a case management order setting progression
deadlines “may be modified only for good cause and with
the judge's consent.” Fed. R. Civ. P.
16(b)(4). “The primary measure of Rule 16's
‘good cause' standard is the moving party's
diligence in attempting to meet the case management
order's requirements. . . ., [but the] ‘existence
or degree of prejudice to the party opposing the
modification' and other factors may also affect the
decision.” Bradford v. DANA Corp., 249 F.3d
807, 809 (8th Cir. 2001). The movant's level of diligence
and the degree of prejudice to the parties are both factors
to consider when assessing if good cause warrants extending a
case management deadline, with the movant's diligence
being the first consideration and the extent of prejudice to
either party considered only following a requisite threshold
finding of due diligence. Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 716-17 (8th Cir. 2008); Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir.
discovery in this case closed in late 2015, this case has
been subject to several lengthy suspensions since that time,
including the resolution of the summary judgment motion and a
subsequent reversal by the Eighth Circuit Court of Appeals.
After both of these matters were resolved, the Plaintiff
acted diligently in pursuing discovery on the remaining
issues, including the EBITDA value and retirement bonus: A
telephone conference to discuss this issue was set less than
a month after the mandate from the Eighth Circuit was
entered. (See Filing Nos. 80 & 87).
Additionally, the court believes the prejudice to the
defendants in extending the case management deadlines is
minimal, especially as the Plaintiff does not propose
extending the pretrial conference and trial dates. (See
Filing No. 103-1 at CM/ECF pp. 1-2). The undersigned
finds that good cause exists to modify the case's current
addition to reopening discovery and amending the progression
order, the Plaintiff seeks a court order compelling
Defendants to permit the issuance of a subpoena duces tecum
on Leo Khayet. The subpoena seeks
1. The Consulting Agreement entered into on August 8, 2017
between Kayet and NCC.
2. Any and all agreements entered into between Khayet and NCC
including but not limited to, any confidentiality or
3. Any and all documents provided to Khayet by NCC or its
employees, agents, affiliates, representatives, assignees,
successors, or other person or party acting on behalf thereof
which relate to Defendant's actual or potential: sale