United States District Court, D. Colorado
STEVEN LEE BRANDT, an individual, JAMES CLAY WALTERS, an individual, and COLORADO BOX COMPANY, INC., a Colorado corporation, Plaintiffs/Counterclaim Defendants,
VON HONNECKE, an individual, CHASE HONNECKE, an individual, and S&H SHEET METAL, INC., a Colorado corporation, Defendants/Counterclaimants.
Y. WANG, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendants Von Honnecke, Chase
Honnecke, and S&H Sheet Metal, Inc.'s (collectively,
“Defendants”) Motion for Two-Day Extension of
Time (the “Motion”), filed December 4, 2017
[#129], which is before the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b), the Order of Referring
Case dated March 28, 2016 [#21], and the memorandum dated
December 11, 2017 [#132]. This court has reviewed the Motion
and related briefing, the entire case file, and the
applicable law. For the reasons stated herein, I
GRANT the Motion.
court has discussed the background of this matter in its
prior Recommendation, see [#66], and does so here
only as it pertains to the instant Motion. This patent
infringement case was initially filed by pro se
Plaintiffs Steven Lee Brandt (“Mr. Brandt”) and
James Clay Walters (“Mr. Walters”) (collectively,
“Individual Plaintiffs”) against Defendants.
[#1]. In that original Complaint, the Individual Plaintiffs
alleged that they were the inventors of United States Patent
No. 8, 999, 029 (the “‘029 Patent” or
“Asserted Patent”) and owned “all rights,
title, and interests in the Asserted Patent.”
[Id. at ¶ 9]. The ‘029 Patent entitled
“Furnace Filter Box and Method of Assembly” was
filed on November 2, 2012, and was issued on April 7, 2015
[#42-1 at 2]. The Asserted Patent has twenty claims,
including both device and method claims, and at a high level,
is directed at a furnace filter box that is adapted for
receiving a furnace filter for filtering intake air that can
be quickly assembled and cut to size while maintaining the
strength of the box and is easily shipped. [#42-1]. In that
original Complaint, the Individual Plaintiffs alleged that
S&H “has been and is now directly and indirectly
infringing one or more claims of the ‘029 Patent by (1)
making, having made, manufactured, distributed, using
offering to sell, or selling the patent inventions, (2) by
actively inducing others to purchase, distribute, use, offer
to sell, or sell the patented inventions, and, or (3) by
contributing to the manufacture, distribution, use, sale,
and, or offer for sale the patented inventions in the State
of Colorado, this Judicial District, and the United States of
America.” [#1 at ¶ 35].
response to the Honorable Gordon G. Gallagher's Order to
Show Cause on January 12, 2016, the Individual Plaintiffs
filed an “Amendment to Claim” and a proposed
Amended Complaint. [#8, #8-1]. Judge Gallagher directed the
Clerk of the Court to docket the Amended Complaint on
February 29, 2016. [#10, #11]. Defendants then filed a
“First Amended Answer and Counterclaim” on March
10, 2016. [#17]. On March 30, 2016, Brian D. Smith entered
his appearance on behalf of the Individual Plaintiffs. [#25].
This court held a Scheduling Conference on April 4, 2016, at
which all Parties were represented and participated in
submitting the proposed Scheduling Order. [#27, #28, #29].
April 21, 2016, the Individual Plaintiffs filed a renewed
Motion to Amend the Amended Complaint, indicating that they
wished to join one party to the action and to “clean
up” the First Amended Complaint that was filed pro
se. [#35]. Defendants did not oppose the filing of a
Second Amended Complaint, and said complaint was docketed on
May 4, 2016. [#42].
Second Amended Complaint added Colorado Box Company, Inc.
(“Colorado Box”) as a plaintiff, based on the
Individual Plaintiffs' assignment of their right, title,
and interest in the ‘029 Patent to Colorado Box on
March 28, 2016. [#42 at ¶ 3]. S&H was also
identified as S&H Sheet Metal, Inc., rather than S&H
Heating, A/C, Sheetmetal Co. Compare [id.
at 1, ¶ 9] with [#11]. The Second Amended
Complaint asserted three causes of action as to the
‘029 Patent: (1) direct infringement by Defendants in
violation of 35 U.S.C. § 271(a); (2) induced
infringement by Defendants in violation of 35 U.S.C. §
271(b); and (3) contributory infringement by Defendants in
violation of 35 U.S.C. § 271(c). [#42]. As relief,
Plaintiffs sought damages, prejudgment interest, enhanced
damages based on willful infringement, injunctive relief, and
attorney's fees and costs. [Id. at 14-16].
Plaintiffs also demanded a jury trial. [Id. at 15].
Defendants filed a “Second Amended Answer and
Counterclaim” on May 17, 2016 [#46]. The undersigned
subsequently issued a Recommendation to deny Plaintiffs'
request to file a Third Amended Complaint, which the
presiding judge, the Honorable Raymond P. Moore, adopted in
full. See [#66, #70]. Therefore, the Second Amended
Complaint is the operative one.
Parties proceeded through discovery pursuant to a Scheduling
Order [#29] that was subsequently amended to account for the
appearance of counsel on behalf of Plaintiffs [#54] and to
allow for an extension of time for the designation of expert
witnesses [#109]. Pursuant to this court's April 28, 2017
Order, any motions directed at excluding expert testimony
pursuant to Rule 702 of the Federal Rules of Evidence were
due no later than November 28, 2017. [#109]. Defendants filed
their Motion to Exclude Testimony of Mark Pedigo
(“Motion to Exclude”) on November 30, 2017.
[#127]. On December 4, 2017, Defendants filed the instant
Motion, requesting a two-day extension of time, nunc pro
tunc, to file their Motion to Exclude [#127]. [#129].
Defendants moved for an extension under Local Rule 6.1(a),
following Plaintiffs' demand that they withdraw their
untimely Motion to Exclude, arguing that the
“Markman Order has not yet been entered, and
the matter has not been set for trial”; thus, no party
will be prejudiced by the extension. See
[id. at 2].
response, Plaintiffs argue that the instant Motion is
governed by Rule 16(b)(4), not Local Rule 6.1(a), because
Defendants seek to modify the Scheduling Order, which
requires a showing of good cause. See [#131 at 2].
According to Plaintiffs, Defendants fail to demonstrate good
cause but, rather, “the Motion underscores that the
basis for amending the Scheduling Order is based on
carelessness.” [Id. at 3]. Plaintiffs continue
that granting Defendants' Motion would “reward, and
not deter, untimely submissions from Defendants[, ]”
which Plaintiffs suggest has been a common theme by
Defendants. [Id. at 3-4].
Reply, Defendants reassert their position that the Motion is
one properly submitted pursuant to Local Rule 6.1(a), and
argue that “total inflexibility” in allowing
amendment of the Scheduling Order is
“undesirable.” [#133 at 2]. Further, Defendants
contend that refusing their request for a two-day extension,
nunc pro tunc, would allow Plaintiffs to proffer
expert testimony from Mr. Pedigo that is “clearly
irrelevant, baseless, and inadmissible”-a violation of
the court's gatekeeping duties under Rule 702 of the
Federal Rules of Evidence. [Id. at 3-4]. This court
considers the Parties' arguments below.
Plaintiffs argue that Defendants fail to satisfy Rule
16(b)(4)'s good cause requirement to modify the
Scheduling Order, Rule 6(b)(1)(B) governs when a party seeks
an extension of time upon a motion made after the expiration
of the deadline. Fed.R.Civ.P. 6(b)(1)(B). This rule
provides that the court may extend an expired deadline if the
moving party has failed to act because of excusable neglect.
Id. In interpreting “excusable neglect,
” the United States Supreme Court observed that courts
would be permitted, where appropriate, to accept late filings
caused by inadvertence, mistake, or carelessness, as well as
by intervening circumstances beyond the party's control.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 388 (1993). “Although
inadvertence, ignorance of the rules, or mistakes construing
the rules do not usually constitute ‘excusable'
neglect, it is clear that ‘excusable neglect' under
Rule 6(b) is a somewhat ‘elastic concept' and is
not limited strictly to omissions caused by circumstances
beyond the control of the movant.” Id. at 392.
The Pioneer Court identified four factors for the
court to consider: (1) prejudice to the nonmoving party; (2)
length of delay and its potential impact on judicial
proceedings; (3) the reason for delay, including whether it
was within the reasonable control of the movant; and (4)
whether the movant acted in good faith. Id. at
398-99; accord Hamilton v. Water Whole Int'l.
Corp., 302 F. App'x. 789, 798 (10th Cir. 2008)
(noting the court may consider the existence of good faith on
the part of the moving party, with the reason for the delay
being a crucial factor) (citing United States v.
Torres, 372 F.3d 1159, 1162 (10th Cir. 2004))).
applying the Pioneer factors, I find that granting
the instant Motion is warranted under the circumstances. In
so concluding, this court is mindful of Plaintiffs'
arguments regarding the importance of the Scheduling Order
and deadlines in pretrial proceedings, see Washington v.
Arapahoe Cty. Dep't of Soc. Servs., 197 F.R.D. 439,
441 (D. Colo. 2000) (“[A] Scheduling Order is not a
frivolous piece of paper, idly entered, which can be