United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart, United States Magistrate Judge
matter is before the court on Defendant Briggs & Stratton
Corp.'s (“Briggs”) motion to amend the
scheduling order. (Filing No. 813). For the
following reasons, Defendant's motion will be denied.
relevant procedural history set forth in the court's
prior orders, including its order denying Defendant's
motion to transfer venue, (Filing No. 754), and its
order granting Plaintiff's motion to enforce the
scheduling order. (Filing No. 788), is incorporated
by reference and will not be repeated here.
October 5, 2018, this Court issued a Protective Order
prohibiting Defendant from enforcing third-party subpoenas
served on MTD Products, Inc. (“MTD”) and
Husqvarna Professional Products, Inc.
(“Husqvarna”). The undersigned magistrate judge
held the parties' jointly suggested and court-approved
post-remand scheduling order did not re-open discovery beyond
its express terms, and those terms did not include
depositions of third parties. The court's order further
Defendant has not moved to amend the scheduling order, but
even if it had, any after-the-fact effort to modify the
scheduling order would fail as a matter of law. . . .
Defendant has failed to show due diligence: Defendant knew
Plaintiff intended to rely on the MTD and Husqvarna
agreements and their application to the damages analysis
since at least May 7, 2018. . . . And even assuming a finding
of due diligence, Plaintiff will be prejudiced by
Defendant's late discovery attempts. The pretrial
conference is scheduled for October 16, 2018, the parties
must exchange exhibit lists by October 2, 2018, and motions
in limine are due on October 11, 2018. Defendant's
proposed additional discovery will not only unduly interfere
with Exmark's trial preparation, it will disrupt the
court's case progression order and calendar.
(Filing No. 788, at CM/ECF pp. 8-9) (internal
has filed an objection to that order (Filing No.
812), along with the motion to amend the scheduling
order addressed in this memorandum and order. (Filing No.
813). As explained in Defendant's brief,
Briggs is filing objections to the Court's decision on
Exmark's motion today, along with Briggs's motion for
amended scheduling order. Briggs does not wish to burden the
Court with unnecessary motion practice. But to the extent
that Briggs's previous request to amend the Scheduling
Order was denied as “improper, ” Briggs is filing
this motion such that the Court can rule definitively, so as
to preserve all appellate remedies, as necessary.
(Filing No. 815, at CM/ECF p. 4).
parties' “Joint Stipulation for Scheduling Order to
Trial, ” (Filing No. 709), described the
permitted post-remand supplemental fact discovery as follows:
On or before April 13, 2018 the parties
shall supplement document production and written discovery
responses relevant to the Georgia-Pacific factors.
Supplementation shall be limited to documents and facts
arising since the close of fact discovery.
Each party may take one deposition regarding supplemental
discovery. The depositions shall be in accordance with
Fed.R.Civ.P. 30(b)(6) and shall be completed on or before
May 11, 2018.
(Filing No. 709, at CM/ECF p. 1; Filing No. 710,
April 2018, as part of its obligation to “supplement
document production. . . relevant to the
Georgia-Pacific factors, ” Exmark produced MTD
and Husqvarna license and settlement agreements. (Filing
No. 778). Some of these documents were produced
two-weeks after the supplementation deadline. (Filing No.
778). Briggs states it first learned of these agreements
and of Exmark's accusations of infringement of the
‘863 patent against MTD and Husqvarna when it received
Plaintiff's document production in April of 2018.
(Filing No. 780).
1, 2018, Briggs corresponded with Exmark to ask whether it
intended to rely on the MTD and/or Husqvarna agreements in
any way in litigation. If so, Briggs indicated that it would
seek further discovery on these agreements. (Filing No.
778-3). On May 7, 2018, Exmark responded that it