Holmes v. Russell et al
ORDER finding as moot 16 Motion to Quash; granting 18 Motion to Extend Time and extending the ddls for completing discovery and filing dispositive motions up to and including July 30, 2011. Signed by Judge Susan Webber Wright on 6/24/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MICHAEL RUSSELL and JERRY
HENRY, in their individual and official
NO: 4:10CV1165 SWW
Before the Court are (1) Plaintiff’s motion to quash notice of deposition (docket entry
#16) and Defendants’ response (docket entry #17) and (2) Defendants’ motion for an extension
of the discovery and motions deadlines (docket entry #18) and Plaintiff’s response in opposition
(docket entry #20). After careful consideration, and for reasons that follow, the Court finds that
the motion to quash is moot and that the motion for an extension of deadlines should be granted
as provided in this order.
On June 12, 2011, Plaintiff, who lives in Texas, filed an emergency motion to quash a
notice of deposition that commanded her presence for oral examination on June 13, 2011 in
North Little Rock, Arkansas. According to Plaintiff, depositions in this case were scheduled for
June 7, 2011, and she was present and available for deposition on that date, but defense counsel
declined to depose her at that time. Plaintiff states that defense counsel advised that they were
expecting to depose her on June 13, 2011, but her attorneys responded that Plaintiff could not
return to Arkansas on that date and that prior commitments prevented counsel from attending
depositions on June 13, 2011. On June 13, 2011 Defendants responded to the motion to quash,
asserting that Plaintiff’s attorneys intentionally failed to produce Plaintiff for deposition on the
very week that the discovery deadline was set to expire.
On June 16, 2011, Defendants filed a motion to extend the discovery and dispositive
motions deadlines, which expired on June 17 and 18, respectively. In support of their motion,
Defendants state that Plaintiff and other witnesses named in Plaintiff’s discovery responses
failed to attend depositions noticed for June 13, 2011. Plaintiff objects to the requested deadline
extensions and contends that Defendants chose not to depose her and “have vehemently refused
to coordinate the same . . . . ” Docket entry #20, at 5. Plaintiff contends that Defendants have
been “slothful” and have failed to show good cause for modification of the scheduling order.
A modification of the Court’s scheduling order is proper only for good cause, see Fed. R.
Civ. P. 16(b)(4), and the primary measure of good cause is the movant’s diligence in attempting
to meet court-ordered deadlines. See Bradford v. DANA Corp. 249 F.3d 807, 809 (8th Cir.
2001). In an effort to show good cause, Defendants submit evidence that defense counsel
attempted to provide notice for the June 13, 2011 depositions via an email message sent May 19,
2011, a certified letter delivered on June 3, 2011, and an email, fax, and certified letter dated
June 8, 2011. See docket entry #17, Attachments.
The Court finds that the obstacle to completing discovery in this case is not a lack of
diligence, but a lack of cooperation and an impasse as to a date on which depositions can
proceed. Additionally, trial in this case is set for November 14, 2011, and the Court finds that
Plaintiff will suffer no prejudice if the discovery and motions deadlines are extended for the
purpose of permitting Defendants to depose Plaintiff and witnesses identified in Plaintiff’s
IT IS THEREFORE ORDERED that Plaintiff’s motion to quash notice of deposition
(docket entry #16) is DENIED AS MOOT, and Defendants’ motion for an extension of the
discovery and motions deadlines (docket entry #18) is GRANTED. The deadlines for
completing discovery and filing dispositive motions are extended up to and including July 30,
2011, solely for the purpose of permitting Defendants to depose Plaintiff and witnesses identified
in Plaintiff’s discovery responses.
IT IS FURTHER ORDERED that the parties shall confer and agree to dates on
which Defendants will depose Plaintiff and witnesses listed in Plaintiff’s discovery
responses. If, by June 30, 2011, the parties have failed to come to an agreement, either
party may file notice of that failure, and the Court will select a date on which said
depositions will proceed.
IT IS SO ORDERED THIS 24TH DAY OF JUNE, 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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