Garrett et al v. BNC Mortgage Inc. et al

Filing 63

ORDER denying 59 Motion to Amend Scheduling Order for Extension of Time to File Discovery Documents. by Magistrate Judge Boyd N. Boland on 4/30/13.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-03242-PAB-BNB
MICHELLE GARRETT, and
RICHARD L. GARRETT,
Plaintiffs,
v.
BNC MORTGAGE, INC.,
U.S. BANK, N.A., as Trustee for the Structured Asset Investment Loan Trust 2006-BNC3, and
WELLS FARGO HOME MORTGAGE, INC., owner of America’s Servicing Company,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Plaintiffs’ Motion to Amend Scheduling Order for Extension of
Time to File Discovery Documents [Doc. #59, filed 04/23/2013] (the “Motion”). The Motion
is DENIED.
On October 9, 2012, I held a Scheduling Conference and entered a Scheduling Order
[Doc. #47]. I set the discovery cut-off as April 26, 2013, and I ordered that all interrogatories,
requests for production of documents, and requests for admissions be served 33 days prior to the
discovery cut-off date (on or before March 24, 2013).
The plaintiffs seek to modify the Scheduling Order to extend the deadline to serve their
discovery to April 26, 2013. The plaintiffs recognize that pursuant to Rule 16(b)(4), Fed. R. Civ.
P., I may modify a scheduling order only upon a showing of good cause. The Advisory
Committee Notes to Rule 16 provide the following guidance about the meaning of good cause as
used in Rule 16:

[T]he court may modify the schedule on a showing of good cause
if it cannot reasonably be met despite the diligence of the party
seeking the extension. Since the scheduling order is entered early
in the litigation, this standard seems more appropriate than a
“manifest injustice” or “substantial hardship” test.
Advis. Comm. Notes for 1983 Amend.
However, when an enlargement of time is sought after expiration of a specified deadline,
as here, the movant must show that the failure to act was the result of excusable neglect. Fed. R.
Civ. P. 6(b)(1)(B). To determine whether the neglect is excusable:

[T]he court must take account of all relevant circumstances
surrounding the party’s omission, including the danger of
prejudice to the [non-moving party], the length of the delay and its
potential impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of the
movant, and whether the movant acted in good faith.
Stringfellow v. Brown, 105 F.3d 670, 1997 WL 8856, *1 (10th Cir. Jan.10, 1997) (internal
quotations and citation omitted).
The movant’s “control over the circumstances is the most important single factor in
determining whether neglect is excusable.” Id. (internal quotations and citation omitted). A
finding of excusable neglect “requires both a demonstration of good faith by [movant] and it
must also appear that there was a reasonable basis for not complying with the specified period.”
Id. at *2 (internal quotations and citation omitted).
In support of their Motion, the plaintiffs state:
Plaintiff Michelle Garrett mis-read the Scheduling Order and
believed Interrogatories, Requests for Production of Documents
and Requests for Admissions could be filed by the discovery cutoff date of April 26, 2013, but realized too late that the Scheduling
Order listed the date for filing those documents as 33 days prior to
the discovery cut-off, or March 24th.
Motion, p. 2.

Failure to properly read an unambiguous court-ordered deadline does not establish good
cause or excusable neglect. Moreover, the plaintiffs waited until March 10, 2013, to serve their
initial discovery requests on the defendants. They voluntarily withdrew these requests and did
not attempt to re-serve their discovery requests until more than one month later, on or about
April 15, 2013. Response to Plaintiffs’ Motion to Amend Scheduling Order for Extension of
Time to Propound Discovery Requests [Doc. #62] (the “Response”), ¶¶ 3-5; Ex. A; Ex. C. The
plaintiffs do not explain why they waited until March , 10, 2013--five months after entry of the
Scheduling Order--to serve their initial discovery requests.
I am aware that the plaintiffs are proceeding pro se, and I must liberally construe their
pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The plaintiffs’ pro se status does not
excuse them from following “the same rules of procedure that govern other litigants.” Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Accordingly,
IT IS ORDERED that the Motion [Doc. #59] is DENIED.
Dated April 30, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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