Taylor Moving, LLC v. Voigt et al

Filing 98

ORDER denying 90 Defendants' Motion to Reopen Discovery for Subpoenas. by Magistrate Judge Boyd N. Boland on 2/4/13.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-01540-WYD-BNB
TAYLOR MOVING, LLC, a Colorado limited liability company,
Plaintiff,
v.
MICHAEL VOIGT, an individual,
OPM ENTERPRISES, INC., d/b/a Pride Worldwide Moving & Storage, d/b/a Boulder Valley
Transfer, a Colorado corporation,
TAYLOR MOVING, INC., a Colorado corporation,
TAYLOR MOVING AND STORAGE, INC., a Colorado corporation, and
BOULDER VALLEY TRANSFER, INC., a Colorado corporation,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Defendants’ Motion to Reopen Discovery for Subpoenas [Doc. #
90, filed 11/2/2012] (the “Motion to Reopen”), which is DENIED.
The case was commenced by the filing of a Verified Complaint [Doc. # 1] on June 13,
2011. I entered a Scheduling Order [Doc. # 23] on January 17, 2012. Pursuant to the
Scheduling Order, the parties were allowed six months, until July 17, 2012, within which to
conduct pretrial discovery. Id. at p. 8.
A pretrial conference occurred on October 17, 2012, and a Final Pretrial Order [Doc. #
82] was entered. The parties listed their exhibits at Part 7 of the Final Pretrial Order. The
defendants listed a single, three page exhibit. Id. at p. 20. At Part 12, the Final Pretrial Order
recites that it “may not be amended except by consent of the parties and approval by the court or
by order of the court to prevent manifest injustice.” Id. at p. 21; accord Fed. R. Civ. P. 16(e)

(providing that a final pretrial order may be modified “only to prevent manifest injustice”).
However, the Final Pretrial Order also provides that the defendants “will seek leave to subpoena
records from the Department of Transportation and from Avis Budget Group and add them to the
exhibits for trial.” Final Pretrial Order [Doc. # 82] at p. 21.
In Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987), the circuit court ruled:
Whether to extend or reopen discovery is committed to the sound
discretion of the trial court and its decision will not be overturned
on appeal absent abuse of that discretion. Appellate decisions
have identified several relevant factors in reviewing decisions
concerning whether discovery should be reopened, including:
1) whether trial is imminent, 2) whether the request 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 district court, and 6) the likelihood that the
discovery will lead to relevant evidence.
Accord Santana v. City and County of Denver, 488 F.3d 860, 867 (10th Cir. 2007) (noting no
abuse of discretion occurs when additional discovery is denied if there was “adequate time for
discovery and the requesting party had not made a timely request,” citing with approval Worm v.
American Cyanamid Co., 5 F.3d 744, 749 (4th Cir. 1993)).
The defendants claim that they need the requested discovery for the following purposes:
Plaintiff has brought state law claims for defamation in which it
claims that its reputation as a business has been harmed by
statements made by one or more of the Defendants. In its
pleadings and proof, Plaintiff will put in evidence of its good
reputation in the community. Contrary to this evidence, Plaintiff
has engaged in moving activities interstate without the proper
license or authority to engage in interstate commerce. To do so,
the have utilized rental trucks procured from Avis Budget Group.
Plaintiff has been investigated and sanctioned for this illegal
practice by the USDOT. Defendants are entitled to show contrary
evidence of poor reputation to counteract the claim of
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disparagement or defamation and to minimize the claimed
damages.
Reply [Doc. # 97] at pp. 1-2.
I find that although the trial is scheduled to begin in mid-August 2013 and is not
imminent, each of the other factors enumerated in Smith points heavily against reopening
discovery. The discovery is directed to the issues of the plaintiffs reputation in the business
community and its damages--matters that have been in the case since its inception in June 2011.
See Verified Complaint [Doc. # 1] at p. 21 (Second Claim for Relief--Defamation).
Consequently, I find disingenuous the defendants’ assertion that the need for the additional
discovery was not known until “after discovery ha[d] closed” and that it was “not anticipated
until the preparation of the exhibit lists before the Pretrial Conference.” Reply [Doc. # 97] at p.
2. See Colorado Visionary Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000)
(holding that “[c]arelessness is not compatible with a finding of diligence and offers no reason
for a grant of relief”). The defendants had six months within which to serve the subpoenas now
requested but took no steps to do so, evidencing a total lack of diligence in their discovery
efforts.
The plaintiff, which conducted its discovery as required under the Scheduling Order and
within the time allowed, would be prejudiced if the defendants are allowed to reopen discovery
after the final pretrial conference. The plaintiff would have no opportunity to conduct any
additional discovery it may require in response to the information gathered delinquently by the
defendants.
The defendants essentially ignored the deadlines established in the Scheduling Order and,
at the last minute and after the entry of a final pretrial order, sought leave to conduct the
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discovery they should have done earlier. This is no basis for reopening discovery or amending
the final pretrial order to allow the defendants to add exhibits.
IT IS ORDERED that the Motion to Reopen [Doc. # 90] is DENIED.
Dated February 4, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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