United States District Court, D. Colorado
Nina Y. Wang United States Magistrate Judge
Magistrate Judge Nina Y. Wang This matter is before the court on Plaintiff Fred Johnson’s Motion to Reopen Discovery as to Defendant’s Fourth Supplemental Disclosures and to Continue the Final Pretrial Conference (the “Motion”). [#56, filed Mar. 18, 2016]. This Motion was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A), the Order of Reference dated April 2, 2015 [#8], and the Memorandum dated March 21, 2016 [#57]. Defendant filed a Response to the Motion on March 21, 2016. [#60]. Having reviewed the Parties’ briefing and applicable case law, this court finds that disposition is proper without oral argument or further briefing. D.C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed.”)
Defendant Pinnacle Credit Services, LLC (“Pinnacle” or “Defendant”) removed this action from Denver County Court to the District of Colorado on March 31, 2015. [#1]. Plaintiff Fred Johnson (“Plaintiff” or “Mr. Johnson”) then filed his original Complaint on April 1, 2015. [#5], followed by an Amended Complaint on May 18, 2015 [#15]. Mr. Johnson’s Amended Complaint asserts a single cause of action against Pinnacle for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the “FDCPA”). [#15 at ¶¶ 118-120].
The Scheduling Order in this case, entered on June 17, 2015, set a discovery cutoff date of November 30, 2015, and required that written discovery be served no later than 45 days prior to that date. See [#22]. On November 13, 2015, the Parties filed a Stipulated Motion to Extend the Discovery Cutoff Date and Dispositive Motion Deadline for the purpose of allowing Plaintiff to take the depositions of Defendant’s witnesses located in the Minneapolis area. See [#32]. On November 20, 2015, the Court entered an order extending the discovery cutoff to December 30, 2015 for the sole purpose of the conducting the depositions of Defendant’s witnesses and extending the dispositive motion deadline to January 29, 2016. [#34]. Defendant filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56(c) on February 12, 2016 [#47]; however, Defendant then filed a motion to withdrew the summary judgment motion, which was granted on March 7, 2016. [#53]. The Final Pretrial Conference is set for March 25, 2016. See [#54].
In the Motion presently before the court, Plaintiff seeks an order reopening discovery and vacating the Final Pretrial Conference on the basis that Defendant recently served Fourth Supplemental Disclosures which include documents pertaining to Plaintiff’s past litigation history regarding his FDCPA claims against other debt collectors. See [#56 at 2]. These documents, Bates labeled Pinnacle 000182 - 000216, are three complaints from Plaintiff’s prior FDCPA litigation (the “FDCPA complaints”). [#56 at 2]; [#60 at 2]. Plaintiff argues that this disclosure makes it necessary for him to reopen the deposition(s) of corporate representatives of Defendant to ascertain how these documents apply to Plaintiff’s FDCPA claim in this case and/or Defendant’s defenses, including its bona fide error affirmative defense. See [#56 at 3]. Defendant opposes the Motion and argues that the FDCPA complaints at issue are Plaintiff’s own documents and have been in his custody and control for months, if not years, and that Plaintiff had ample opportunity to obtain discovery regarding these documents during the pendency of this litigation. See [#60 at 1].
“Whether to extend or reopen discovery is committed to the sound discretion of the trial court.” Smith v. United States, 834 F.2d 166, 169 (10th Cir.1987). In Smith, the Tenth Circuit
identified several relevant factors in reviewing decisions concerning whether discovery should be reopened, including: 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence.
834 F.2d at 169 (citation omitted). In reviewing the six factors outlined in Smith, this court finds that the first factor favors Plaintiff because a trial date has not yet been set. The court considers the remaining factors in turn, and concludes that the factors ultimately weigh against granting the Motion.
I.Factors Two and Three
Regarding the second and third Smith factors, the Motion is opposed by Defendant. Moreover, “[t]here can be no doubt that allowing Plaintiff to take additional discovery requires Defendants to incur additional and unanticipated expenses.” Quintana v. Edmond, No. 06-cv-01187-WDM-KLM, 2009 WL 1798219, at *2 (D. Colo. June 23, 2009). Factor two plainly favors denial of the Motion. Factor three also favors denial of the Motion because Defendant would be prejudiced by being required to prepare its corporate representatives for a second round of 30(b)(6) depositions if discovery is reopened and by the 60-day additional delay in the resolution of this case.
II. Factors Four and Five
The court next considers whether Plaintiff was diligent in obtaining the discovery that he now seeks prior to the discovery cutoff and the foreseeability of the need for additional ...