Demmer v. Fitzgibbons et al

Filing 55

ORDER denying 47 Motion to Amend Scheduling Order - Discovery Cut-Off. By Magistrate Judge Kathleen M. Tafoya on 3/14/2012.(jjpsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–01802–CMA–KMT

DIAMOND DEMMER,
Plaintiff,
v.
ROBERT FITZGIBBONS, and
THE CITY AND COUNTY OF DENVER,
Defendants.

ORDER

This matter is before the court on Plaintiff’s “Motion to Amend Scheduling Order –
Discovery Cut-Off.” (Doc. No. 47, filed Mar. 6, 2012 [Mot.].) After the court expedited
briefing (see Doc. Nos. 49 & 53), Defendants filed a response on March 8, 2012 (Doc. No. 52)
and Plaintiff filed a Reply later that same day (Doc. No. 54). Accordingly, this matter is ripe for
the court’s review and ruling.
Plaintiff’s Motion seeks to amend the Scheduling Order to extend the Discovery Cut-Off
deadline in order to propound additional requests for production of documents to Defendants.
(Mot. ¶ 1.) A scheduling order may be amended only upon a showing of good cause. Fed. R.
Civ. P. 16(b)(4).
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 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 . . . . Carelessness is not compatible with a
finding of diligence and offers no reason for a grant of relief.
Colo. Visionary Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (internal
citations and quotations omitted); see also Strope v. Collins, 315 F. App’x 57, 61 (10th Cir.
2009) (quoting Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 2004)) (“Demonstrating good
cause under [Rule 16(b)(4)] ‘requires the moving party to show that it has been diligent in
attempting to meet the deadlines, which means it must provide an adequate explanation for the
delay.’”) “Indifference by the moving party seals off this avenue of relief irrespective of
prejudice because such conduct is incompatible with the showing of diligence necessary to
establish good cause. O’Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 155 (1st Cir.
2004) (internal quotations, alterations, and citation omitted).
In this case, Plaintiff alleges that, on July 2, 2010, she was struck in the legs, abdomen,
and torso by fragments from five “hollow point” bullets that Defendant Fitzgibbons, a former
police officer with the Denver Police Department (DPD), fired at a nonparty individual.
(Compl., Doc. No. 2, filed July 11, 20122, ¶¶ 3-6.) Plaintiff alleges that Defendant Fitzgibbons
use of the hollow point ammunition and an AR-15-type rifle violated DPD policy and
procedures, created an unreasonable risk of harm to innocent bystanders, and constituted
excessive force under the circumstances. (Id. ¶¶ 4-5.)

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In support of the proposed extension of the Scheduling Order’s Discovery Cut-Off,
Plaintiff’s counsel asserts that he recently learned “an enormous amount of highly relevant
information not previously revealed to Plaintiff’s counsel” when he attended a Civil Service
Commission hearing in Defendant Fitzgibbons’ appeal of his termination from the DPD. (Mot. ¶
4.) Specifically, Plaintiff’s counsel claims that he learned (1) that Defendant Fitzgibbons had not
completed the Urban Rifle Training Course required by DPD—indeed he had been turned down
for the course on several occasions due to concerns regarding his maturity, responsibility, and
reliability—and therefore was using the weapon at issue in the case without authorization; (2)
that only 72 hours prior to the shooting, Defendant Fitzgibbons asked a supervising lieutenant
whether, in light of a change in command at DPD, he would be permitted to enroll in the Urban
Rifle Training Course, which suggests that Defendant Fitzgibbons knew he was without the
proper training at the time of the incident; (3) that important, but unspecified, details existed as
to the circumstances under which Defendant Fitzgibbons acquired the unauthorized weapon and
ammunition; (4) that Defendant Fitzgibbons has a history of internal affairs investigations,
including allegations of excessive force and officer dishonesty; and (4) that an in-depth
investigation relating to the July 2, 2010 shooting was undertaken, which purportedly included
numerous interviews of Defendant Fitzgibbons and others. (Mot. ¶¶ 5–8.) Plaintiff seeks to
extend the Scheduling Order to serve Defendants with additional discovery requests relating to
these topics.
The allegations in Plaintiff’s Complaint, however, clearly demonstrate that she was
aware that Defendant Fitzgibbons violated City policy by using an unauthorized weapon and
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ammunition, and that third-party victims, including Plaintiff, were injured during this police
shooting. (Compl. ¶¶ 4-6.) It would be abundantly clear to an attorney as well-known and
experienced as Plaintiff’s counsel that, under these circumstances, an Internal Affairs
Department investigation into the incident, particularly with respect to the alleged police shooter,
Defendant Fitzgibbons, would be inevitable. Consequently, the court finds that a diligent litigant
would have immediately propounded discovery directed at obtaining the complete internal
investigation file and records. Further, Plaintiff’s counsel obviously was aware that Defendant
Fitzgibbons was terminated from employment as a result of this incident; thus, diligent counsel
would have also attempted to obtain the employment file and other information underlying the
termination.
Plaintiff’s counsel nevertheless failed to propound any discovery to Defendants regarding
either investigation, nor did counsel make an absolutely routine inquiry as to any allegations of
prior misconduct by Defendant Fitzgibbons. As Defendants persuasively note, Plaintiff had
sixth months to conduct such discovery, and therefore had ample opportunity to take the
depositions of Defendant Fitzgibbons and Officer Schledwitz, the second officer involved in the
shooting incident. (Resp. ¶¶ 5-6.)
Plaintiff does not directly dispute that she had ample time to conduct such discovery;
instead, she maintains that she chose not to take these depositions for strategic reasons.
Specifically, Plaintiff’s counsel concluded that sworn statements taken by a lieutenant at the time
of the incident would suffice for effective cross-examination of Defendant Fitzgibbons and
Officer Schledwitz at trial. (Reply ¶ 2.) The court will generously conclude that such a
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‘strategic’ decision was based on the cost of discovery. Plaintiff’s counsel was certainly free to
elect this discovery approach; however, a necessary consequence of such a decision is that
Plaintiff did not learn details that more expansive discovery might have disclosed. Plaintiff’s
late reevaluation of her discovery decision in light of information gleaned from an attorney’s
more diligent efforts in another case, however, does not demonstrate good cause to amend the
Scheduling Order.
Plaintiff also maintains that the court should extend the Discovery Cut-Off in order to
reach a just result and because there is no prejudice to Defendants. (Reply ¶ 3.) The “new”
information learned by Plaintiff with respect to the training of Defendant Fitzgibbons’s use of
the unauthorized firearm was disclosed at an appeal hearing. Therefore, Plaintiff is free to use
the information gleaned from that hearing consistent with the Federal Rules of Evidence. What
Plaintiff seeks by extending discovery deadlines is to be allowed to further explore the
information in the pretrial context. This is discovery that she already deliberately eschewed
prior to finding out that it might be more helpful to her case than she had previously guessed.
Plaintiff is not foreclosed from calling individuals who were involved in the Civil Services
Commission hearing, nor Defendant Fitzgibbons himself, as witnesses at trial. To be sure,
Plaintiff may be unable to accurately predict the nature of their trial testimony; however, again,
Plaintiff alone bears the burden of this result by way of her volitional choice not to avail herself
of available discovery. Finally, the fact that Defendants might not be unduly prejudiced by an
extension of the Discovery Cut-Off is irrelevant, as the Rule 16(b)(4) inquiry properly focuses

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on Plaintiff’s diligence, rather than the prejudice to Defendants. Colo. Visionary Academy, 194
F.R.D. at 687.
In sum, the court finds that Plaintiff has failed to fulfill Rule 16(b)(4)’s good cause
requirement by demonstrating that diligent efforts could not have uncovered the additional
discovery she now seeks. Rather, the court finds that diligent efforts likely would have
uncovered this information. A “Scheduling Order is not a frivolous piece of paper, idly entered,
which can be cavalierly disregarded by counsel without peril.” Washington v. Arapahoe Cnty.
Dept. of Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (internal quotations and citations
omitted). “To the contrary, a scheduling order is an important tool necessary for the orderly
preparation of a case for trial.” Id. (citation omitted). Plaintiff chose a deliberate course of
action to forego discovery that might have uncovered the “highly relevant” extra information she
now seeks and must, therefore, bear the consequences of her choice.
Therefore, for the foregoing reasons, it is
ORDERED that
Plaintiff’s “Motion to Amend Scheduling Order – Discovery Cut-Off” (Doc. No. 47) is
DENIED.
Dated this 14th day of March, 2012.

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