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Gilkerson v. Nebraska Data Centers, L.L.C.

United States District Court, D. Nebraska

December 5, 2017



          Cheryl R. Zwart United States Magistrate Judge

         This 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).


         Plaintiff 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).

         Discovery 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).

         The 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.

         On 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.


         Pursuant 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. 2006).

         While 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 progression order.

         In 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 non-disclosure agreements.
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 ...

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