Advanced Reimbursement Solutions LLC v. Spring Excellence Surgical Hospital LLC et al

Filing 196

ORDER: IT IS ORDERED that SESH's motion for an extension of time to complete certain discovery (Doc. 193 ) is DENIED [see attached Order for details]. Signed by Judge Dominic W Lanza on 3/6/19. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Advanced Reimbursement Solutions LLC,
Plaintiff,

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No. CV-17-01688-PHX-DWL
ORDER

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v.

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Spring Excellence Surgical Hospital LLC, et
al.,

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Defendants.

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Pending before the Court is Defendant Spring Excellence Surgical Hospital LLC’s

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(“SESH”) motion for an extension of time to complete certain discovery (Doc. 193), which

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Plaintiff Advanced Reimbursement Solutions LLC (“ARS”) opposes (Doc. 195). As

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explained below, the motion will be denied.

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BACKGROUND
This case was filed in May 2017.

(Doc. 1.)

The original scheduling order

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established a discovery cutoff date of June 15, 2018, and a dispositive motion deadline of

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July 16, 2018. (Doc. 58.) At SESH’s request, the Court later extended these deadlines by

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two months, moving the discovery deadline to August 15, 2018, and dispositive motion

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deadline to September 17, 2018. (Doc. 91.)

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In June 2018, ARS filed a motion for partial summary judgment. (Doc. 97.) In

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response, SESH filed a motion under Rule 56(d) seeking leave to conduct six depositions

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before responding to the motion. (Doc. 121.) The Court granted this request, giving SESH

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until September 15, 2018, to complete the specified depositions and 14 days from

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completion of the depositions to file its response to ARS’s partial summary judgment

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motion. (Doc. 135.)

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On August 22, 2018—about three weeks before the September 15, 2018 discovery

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deadline was set to expire—the Court issued an order staying the case because one of the

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parties was involved in a bankruptcy proceeding. (Doc. 165.) However, on December 7,

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2018, the Court lifted the stay because the individual involved in the bankruptcy

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proceeding was no longer a party in this case. (Doc. 178 at 2.) The Court also informed

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the parties that it would “not set a deadline for SESH to file its response to the pending

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summary judgment motion until after hearing from the parties, at the Rule 16 conference,

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concerning whether additional discovery and depositions are needed for SESH to prepare

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its response.” (Id. at 3.)

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Before the Rule 16 case management conference, the parties filed a joint case

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management report. (Doc. 187.) In it, ARS argued that SESH should have until March

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29, 2019, to complete the six depositions, while SESH argued that it should have until

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September 30, 2019, to complete the six depositions. (Id. at 7-9.)

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On January 23, 2019, the Court held a case management hearing. (Doc. 188.)

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During this hearing, the Court noted that the original discovery deadlines had already

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expired and that the case was already more than a year-and-a-half old. Thus, the Court

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ruled that SESH would need to complete the six depositions by March 29, 2019, and file

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its response to the partial summary judgment motion by April 12, 2019. (Doc. 189 at 2

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[“[T]he six depositions . . . shall be completed earlier than the otherwise-applicable fact

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discovery deadline of April 26, 2019—those six depositions must be completed by March

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29, 2019.”].) The Court further advised SESH during the hearing that, to the extent it was

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considering a change in counsel, the Court would not view such a change as providing

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good cause to alter the new deadlines.

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DISCUSSION

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In its motion, SESH requests a one-month extension of the March 29, 2019 deadline

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for completing the depositions of non-parties Joanna Davis and Devorshia Russell. (Doc.

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193.) SESH asserts that an extension is warranted because (1) the two witnesses are only

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available to be deposed on one day (March 7, 2019) before the deadline expires, and each

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is only available for three hours on that day, and (2) its new Arizona counsel “lacks a

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complete file from prior counsel” and is thus unable to provide assistance to the local Texas

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counsel who will be conducting the depositions. (Id.)

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ARS opposes the extension request. (Doc. 195.) ARS argues the request should be

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denied because (1) SESH dragged its feet when attempting to schedule the depositions and

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hasn’t taken adequate steps to secure the witnesses’ attendance, (2) ARS’s previous

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concerns related to the deponents’ time constraints have diminished, and (3) SESH’s local

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counsel in Texas has been involved in this case since at least August 2018 and is well

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equipped to handle the depositions, and the Court previously warned SESH that a change

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in counsel would not justify a deadline extension. (Id.)

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The Court agrees with ARS’s arguments and will deny SESH’s motion. Under Rule

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16(b)(4) of the Federal Rules of Civil Procedure, a scheduling order “may be modified only

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for good cause and with the judge’s consent.” Rule 16’s good-cause standard “primarily

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considers the diligence of the party seeking the amendment. . . . [T]he focus of the inquiry

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is upon the moving party’s reasons for seeking modification. If that party was not diligent,

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the inquiry should end.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th

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Cir. 1992).

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SESH isn’t entitled to relief under this standard because it hasn’t established that it

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acted with diligence when attempting to schedule the depositions. To the contrary, the

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exhibits attached to ARS’s opposition suggest that SESH has displayed a lack of diligence.

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Soon after the Court issued its revised scheduling order, ARS began prodding SESH to

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lock down a date for the depositions. (Doc. 195-1 at 4-5 [February 7, 2019 email from

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ARS’s counsel seeking to “discuss . . . scheduling of the depositions”].) A week and a half

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later, SESH announced that Davis and Russell were available for depositions on March 7

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and 8, 2019, respectively. (Doc. 195-1 at 3 [February 18, 2019 8:01 am email from SESH’s

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counsel].) A few days later, ARS sought confirmation of “the times that the depositions

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will begin on March 7 and March 8.” (Doc. 195-1 at 2.) In response, SESH stated for the

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first time that the depositions were actually going to take place on the same day and that

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each witness was only available for three hours: “We have set them both for the 7th, with

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Russell starting at 8:30 and Davis going immediately after. Notably, I have been informed

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that Russell needs to leave by noon and Davis needs to be done by 3:00 pm . . . .” (Id.)

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And in a subsequent email exchange, SESH stated that it couldn’t guarantee that ARS’s

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counsel would have any time to ask follow-up questions during the three-hour deposition

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blocks. (Doc. 195-1 at 8-9 [“I cannot assure that we will have enough time to complete

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our questioning at this point much less have time for yours.”].)

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The Court recognizes that it is sometimes difficult to identify a convenient date for

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deposing an out-of-state non-party witness. Nevertheless, SESH had plenty of time to do

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so here—the scheduling order afforded SESH 65 days to complete the depositions.

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Furthermore, the Court made it abundantly clear, during the scheduling conference, that

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the March 29, 2019 deposition deadline was a firm deadline. Thus, although Davis and

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Russell may be making things difficult on SESH (it strains credulity to believe that each

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witness was only available for a single three-hour block of time between January 2019 and

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March 2019), SESH could have avoided any timing issues by taking prompt, formal steps

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to subpoena them—thereby subjecting them to the Court’s enforcement power if they

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attempted to play games concerning their availability—once the scheduling order was

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issued. Its failure to do so amounts to a lack of diligence.

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Accordingly, IT IS ORDERED that SESH’s motion for an extension of time to
complete certain discovery (Doc. 193) is DENIED.
Dated this 6th day of March, 2019.

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