L-3 Communications Corporation et al v. Jaxon Engineering & Maintenance, Inc. et al

Filing 59

ORDER granting in part and denying in part 52 Plaintiffs' Motion to Modify Scheduling Order. To the extent Plaintiffs seek an indefinite extension of the deadline to amend the pleadings, the motion is DENIED. Plaintiffs may file a motion to amend the complaint no later than 06/19/2011, by Magistrate Judge Kathleen M. Tafoya on 06/01/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10–cv–02868–MSK–KMT

L-3 COMMUNICATIONS CORPORATION, and
L-3 SERVICES, INC.,
Plaintiffs,
v.
JAXON ENGINEERING & MAINTENANCE, INC.,
JONI ANN WHITE,
RANDALL K. WHITE,
SCOTT WHITE,
SUSAN RETTIG,
CHARLES RETTIG,
JAMES YOUNGMAN,
JERRY LUBELL,
KELLY RICE,
JOHN MCCLURE, and
JOHN DOES 1-25, said names being fictitious as such names are unknown at this time,
Defendants.

ORDER

This matter is before the court on Plaintiffs’ “Motion to Modify Scheduling Order” (Doc.
No. 52 [Mot.], filed 4/14/2011), Defendants’ Response (Doc. No. 56 [Resp.], filed 5/9/2011) and
Plaintiffs’ Reply (Doc. No. 58 [Reply], filed 5/26/2011). Plaintiffs seek an extension of the
deadline to amend the pleadings until fourteen days after District Judge Marcia S. Krieger rules

on “Defendants’ Motion to Dismiss the First Amended Complaint and for a More Definite
Statement” (Doc. No. 47).
On March 3, 2011, the court held a scheduling conference and set the deadline to amend
the pleadings at May 2, 2011. (Doc. No. 43 at 13.) On March 21, 2011, Defendants filed their
motion to dismiss. Plaintiffs state that, after consideration of Defendants’ motion, they have
“decided to voluntarily withdraw Count XVI of the Amended Complaint for replevin and certain
factual allegations supporting [their] RICO claim without prejudice.” (Mot. at 2.) Plaintiffs
acknowledge that this amendment could have been made prior to the current deadline for
amending the pleadings. (Id. at 4.) However, they note that Judge Krieger’s ruling on
Defendants’ motion to dismiss may require further amendments to the Amended Complaint. (Id.
at 3.) Because the briefing on Defendants’ motion was completed on May 2, 2011, Plaintiffs
were concerned that if they sought to withdraw the replevin claim and certain factual allegations
before the May 2, 2011 amendment deadline, Judge Krieger’s ruling may necessitate that they
seek leave again after the May 2, 2011 deadline. Plaintiffs wish to avoid multiple amendments
to the complaint and unnecessary expenditure of judicial resources by extending the deadline for
amending the pleadings until fourteen days after Judge Krieger rules on Defendants’ motion to
dismiss. (Id. at 4.)
Fed. R. Civ. P. 16(b) provides that “[a] schedule may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). This Court has said that
Rule 16(b)’s “good cause” standard is much different than the more lenient
standard contained in Rule 15(a). Rule 16(b) does not focus on the bad faith of
the movant, or the prejudice to the opposing party. Rather, it focuses on the
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diligence of the party seeking leave to modify the scheduling order to permit the
proposed amendment. Properly construed, “good cause” means that the
scheduling deadlines cannot be met despite a party’s diligent efforts. In other
words, this court may “modify the schedule on a showing of good cause if [the
deadline] cannot be met despite the diligence of the party seeking the extension.”
Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001) (internal citations
omitted).
Defendants argue that Plaintiffs have not shown good cause to modify the scheduling
order because Plaintiffs have not shown that they could not meet the deadline despite diligent
efforts to do so. Defendants contend that, rather than timely seek leave to amend the complaint
in light of the deficiencies identified by Defendants, Plaintiffs elected to stand on the allegations
in their First Amended Complaint and oppose the Defendants’ motion. (Resp. at 5-6.)
Defendants also argue that the local rules do not permit an open-ended extension of the deadline
to amend pleadings and that such an extension would require modification of other deadlines in
the case. (Id. at 3.) Finally, Defendants argue that Plaintiffs’ stated justifications for extending
the amendment deadline do not support a blanket extension which would allow Plaintiffs
additional time to seek leave for any amendment, not just those necessary to correct any
deficiencies identified by Judge Krieger. (Id. at 4.)
The Local Rules do not permit an indefinite extension of time. See D.C.COLO.LCivR
6.1 (“Any motion for extension of time shall . . . state a date certain for the requested extension
of time . . . .”). The deadline to join parties and amend the pleadings is set early to minimize the
possibility that late amendments and joinder of parties will necessitate extensions of other case
management deadlines such as discovery, the final pretrial conference and the dispostiive motion
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deadline. See D.C.COLO.LCivR App. F.1 at § 9. Plaintiffs’ open-ended request places all later
deadlines in jeopardy.
The court finds that Plaintiffs have not established good cause to amend the scheduling
order. Notably, Judge Krieger’s Civil Practice Standards discourage motions brought pursuant
to Fed. R. Civ. P. 12(b)(6) if the defects are correctable by the filing of an amended pleading.
MSK Civ. Practice Standard V.I.2. To this end, the parties are directed to confer prior to filing
such a motion to dismiss and to make their best efforts to stipulate to appropriate amendments.
Id. In their motion to dismiss, Defendants state that the parties undertook such a conference and
Plaintiffs subsequently filed an amended complaint. (Doc. No. 47 at 4.) However, Defendants
contend that the amendments did not correct the defects identified by Defendants, and they
therefore proceeded with the motion to dismiss. (Id.) According to Plaintiffs, after reviewing
Defendants’ motion, they have decided to voluntarily withdraw their replevin claim and certain
factual allegations. (Mot. at 2.) Plaintiffs need not wait for a ruling on the motion to dismiss to
pursue this amendment. To the extent Judge Krieger’s ruling on Defendants’ motion requires
Plaintiffs to amend their complaint without specifically granting leave of the amendment
deadline, Plaintiffs may seek to establish good cause to modify the scheduling order at that time.
The court acknowledges that Plaintiffs anticipated the possibility of multiple amendments
and filed their motion to extend the amendment deadline on April 14, 2011, well before the May
2, 2011 deadline for amending the pleadings. Accordingly, Plaintiffs shall have a comparable
amount of time to file a motion to amend the complaint. Therefore, it is

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ORDERED that Plaintiffs’ “Motion to Modify Scheduling Order” (Doc. No. 52) is
GRANTED IN PART and DENIED IN PART. To the extent Plaintiffs seek an indefinite
extension of the deadline to amend the pleadings, the motion is DENIED. Plaintiffs may file a
motion to amend the complaint no later than June 19, 2011.
Dated this 1st day of June, 2011.

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