United States District Court, D. Colorado
JOSEPH E. GOMEZ, III, Plaintiff,
SAM'S WEST, INC., Defendant.
T. Varholak United States Magistrate Judge
matter is before the Court on Plaintiff's Motion to
Continue Case Scheduling Order Dates Out for a Period of Six
Months (the “Motion”) [#44]. The Motion has been
referred to this Court. [#46] This Court has carefully
considered the Motion, related briefing, the case file, and
the applicable case law, and has determined that oral
argument would not materially assist in the disposition of
the Motion. For the following reasons, I DENY the Motion.
initiated this employment discrimination action on September
5, 2016. [#1] On December 5, 2016, this Court entered a
Scheduling Order. [#26] The Scheduling Order set an August 7,
2017, discovery cut-off deadline. [Id. at 5] The
Court allowed eight months for discovery despite
Defendant's request for a six-month discovery period.
[Id.] The Court lengthened the discovery period
based upon Plaintiff's counsel's representation that
her husband was ill and that this illness necessitated a
lengthier discovery period.
this lengthier discovery period, Plaintiff filed the instant
Motion seeking a six-month extension of all of the dates set
by the Scheduling Order. [#44] As grounds, Plaintiff states
that his counsel's husband is a pancreas transplant
patient who has been ill with a serious transplant related
medical issue, Cytomegalovirus (“CMV”), since
November 10, 2016. [Id. at 1] According to the
Motion, counsel “is her husband's caregiver,
provides daily care for her husband, and is normally present
at hospital visits and medical appointments.”
[Id. at 2] As a result, Plaintiff's counsel
“has not been able to do the discovery that she intends
to do in this case because of the constant severe medical
illness issues that have been occurring with her
husband.” [Id.] Based upon discussions at
earlier motions hearings, it appears that Plaintiff has not
submitted any written discovery or taken any depositions.
courts have noted . . . that a ‘Scheduling Order is not
a frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.'”
Washington v. Arapahoe Cty. Dep't of Soc.
Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (quoting
Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591,
593 (D. Neb. 1995)). As a result, Federal Rule of Civil
Procedure 16(b)(4) allows modification of a Scheduling Order
“only for good cause and with the judge's
consent.” “Demonstrating good cause under the
rule ‘requires the moving party to show that it has
been diligent in attempting to meet the deadlines, which
means it must provide an adequate explanation for any
delay.'” Strope v. Collins, 315 F.
App'x 57, 61 (10th Cir. 2009) (quoting Minter v.
Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir.
2006)); Lehman Bros. Holdings Inc. v. Universal Am.
Mortg. Co., LLC, 300 F.R.D. 678, 681 (D. Colo. 2014).
Nonetheless, “total inflexibility is
undesirable.” Lehman Bros. Holdings Inc., 300
F.R.D. at 681-82 (quoting Summers v. Missouri Pac. R.R.
Sys., 132 F.3d 559, 604 (10th Cir. 1997)).
exercising discretion to modify a Scheduling Order, the Court
considers the following factors: (1) whether trial is
imminent; (2) whether the request to extend discovery 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
Court; and (6) the likelihood that the discovery will lead to
relevant evidence. See Id. at 681. Weighing these
factors, the Court finds that Plaintiff has not demonstrated
good cause to amend the Scheduling Order.
trial is not imminent (factor one), a factor that would
support good cause, the remaining five factors weigh against
Plaintiff. The request is opposed (factor two) and while the
prejudice may not be extreme, Defendant will be prejudiced by
having this matter continue to linger for an additional six
months (factor three). Moreover, while conducting some
discovery will undoubtedly lead to some relevant evidence
(factor six), Plaintiff has not explained why he cannot
conduct that discovery in the nearly two months remaining in
the current discovery schedule. Moreover, at the time of the
Scheduling Conference, it was entirely foreseeable that
Plaintiff would need to conduct some discovery (factor five).
Plaintiff requested eight months to conduct that discovery,
and the Court granted that request over Defendant's
most importantly, Plaintiff has not demonstrated the
necessary diligence for amending the deadlines set forth in
the Scheduling Order (factor four). Plaintiff's Motion
relates that his counsel's husband has been sick and that
counsel provides daily care for her husband, including
attending hospital visits. [#44 at 2] Plaintiff's Reply
details the history of counsel's husband's illness,
and relates that counsel and her husband were out of state
from November 28, 2015, through April 10, 2016. [#49 at 4]
Neither the Motion nor the Reply, however, explain why this
illness has prevented counsel from conducting necessary
(perhaps any) discovery in the six months since discovery
began. The Motion and the Reply provide little detail
regarding the number of hours counsel currently spends caring
for her husband or the number of hours spent at the hospital
or medical appointments. Without such details, Plaintiff has
not “provide[d] an adequate explanation for any
delay.” Strope, 315 F. App'x at 61.
Plaintiff has not provided any description of the discovery
that he seeks to undertake. Plaintiff has not stated who he
seeks to depose, or the type of written discovery he intends
to propound. Indeed, the Motion and Reply combined total
eleven pages. [#44, 49] In the time spent drafting these
documents, Plaintiff's counsel could have propounded
written discovery requests.
Plaintiff has failed to explain how a six month extension
will enable him to conduct necessary discovery when Plaintiff
has failed to conduct much (if any) discovery beyond initial
disclosures in the first six months of the current discovery
period. The Motion and Reply rely entirely upon the medical
conditions of Plaintiff's counsel's husband. But,
neither explain how those medical conditions are anticipated
to change over the next six months such that counsel will be
able to conduct any necessary discovery. Indeed, the Motion
relates that counsel and her husband may need to return to
the transplant hospital in Wisconsin. Such a move would seem
to make it less likely that Plaintiff could conduct discovery
in the extended time period, as opposed to conducting
discovery now while counsel remains in Colorado.
Court is sympathetic to Plaintiff's counsel's family
medical problems. But, the Motion and the Reply have failed
to demonstrate the good cause necessary for amending the
Scheduling Order. Accordingly, Plaintiff's Motion to