Lips, et al., v. Board of County Commissioners of Arapahoe County, et al.,

Filing 81

ORDER granting 74 Plaintiffs' Motion to Amend Scheduling Order to Extend Discovery Cutoff Solely to Depose Mike Dieck, Tom Albershardt, Brian Rademacher, and John Glassburner. Amended Scheduling Order 64 is amended. Discovery due by 5/28/2013. By Magistrate Judge Michael J. Watanabe on 5/7/2013.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01103-WYD-MJW
VIRGILIUS LIPS and
LYNDA LIPS,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY, et al.,
Defendants.

Consolidated with
Civil Action No. 12-cv-01107-WYD-MJW
MELVEN LIPS and
JULIEN LIPS,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY, et al.,
Defendants

ORDER ON
PLAINTIFFS’ MOTION TO AMEND SCHEDULING ORDER TO EXTEND DISCOVERY
CUTOFF (Docket No. 74)

MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this court pursuant to an Order Referring Case (Docket No. 8)
issued by Judge Wiley Y. Daniel on May 2, 2012.
Now before the court is Plaintiffs’ Motion to Amend Scheduling Order to Extend

2
Discovery Cutoff Solely to Depose Mike Dieck, Tom Albershardt, Brian Rademacher,
and John Glassburner (Docket No. 74). The court has carefully considered the subject
motion (Docket No. 74) and defendants’ responses (Docket Nos. 78 & 79). In addition,
the court has taken judicial notice of the court’s file, and has considered the applicable
Federal Rules of Civil Procedure and case law. The court now being fully informed
makes the following findings of fact, conclusions of law, and order.
Plaintiffs seek a twenty-one day extension to the discovery cut-off date for the
sole purpose of taking the depositions of Officers Mike Dieck, Tom Albershardt, Brian
Rademacher, and John Glassburner (the “additional officers”). Plaintiffs expect each
deposition “to take no more than 1.5 hours.”
A scheduling order “may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). To determine whether good cause exists,
the court must consider: “(1) whether trial is imminent; (2) whether the request to reopen
or extend discovery 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 Court; and (6) the likelihood that the
discovery will lead to relevant evidence.” Benton v. Avedon Eng'g, Inc., No.
10-cv-01899-RBJ-KLM, 2013 WL 1751886, *1 (D. Colo. Apr. 23, 2013) (citing Smith v.
United States, 834 F.2d 166, 169 (10th Cir. 1987)). “With regard to the fourth factor, the
Tenth Circuit has explained that ‘[d]emonstrating 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 any delay.’” Id.

3
(quoting Strope v. Collins, 315 F. App'x 57, 61 (10th Cir. 2009)).
Here, the Amended Scheduling Order (Docket No. 64) set forth a discovery cutoff date of May 3, 2013. The subject motion (Docket No. 74) was filed on May 3, 2013.
The dispositive motions deadline is July 2, 2013. The Final Pretrial Conference is set
for August 12, 2013.
As to the first factor, trial has not yet been set in this matter, and therefore trial is
not imminent.
As to the second factor, all defendants oppose plaintiffs’ request to extend
discovery.
As to the third factor, it is not clear that defendants will be prejudiced if discovery
is extended twenty-one days for the limited purpose set forth by plaintiffs. Defendants
do not specifically identify any prejudice they will suffer, and the court cannot find that
they will suffer significant prejudice given the current posture of the case and the limited
nature of plaintiffs’ request.
As to the fourth and fifth factors, plaintiffs state that they did not learn that the
additional officers were possibly present at the subject scene until plaintiffs conducted
the depositions of various named defendants in April 2013. Plaintiffs further state that
they had to depose the named defendants first in order to identify other officers present
at the scene, and plaintiffs deposed the named defendants as diligently as possible.
In response, defendants state that the additional officers were identified in
documents disclosed on February 1, 2013, yet plaintiffs failed to depose them at that
time. Defendants further argue that plaintiffs could have taken steps prior to the
depositions of the named defendants, such as utilizing written discovery, to identify

4
other officers present at the scene. Defendants also contend that plaintiffs were not
diligent in deposing the named defendants.
The court finds that the fourth and fifth factors do not greatly favor either party.
Possibly plaintiffs could have learned of the additional officers prior to the depositions of
the named defendants. The court is also somewhat concerned with how close to the
discovery cut-off dates the named defendants were deposed. Certainly if plaintiffs
suspected those depositions would lead to the need to conduct additional depositions,
i.e., it was foreseeable, plaintiffs should have sought to depose the named defendants
as quickly as possible. However, the parties disagree as to whether earlier depositions
were possible. In any case, the court finds that plaintiffs could have acted with greater
diligence, but the court is not convinced that additional diligence would have eliminated
the need for the subject motion.
As to the sixth factor, the court finds that the depositions of additional officers
present at the scene may lead to relevant evidence. It is possible that any information
offered by the additional officers may be cumulative, but it is also possible new
information may come to light.
Considering the above factors, the court finds that plaintiffs have shown good
cause to the extend the discovery cut-off date for the limited purpose set forth in the
subject motion. The short extension will not cause significant prejudice to defendants
and will not cause a delay in the resolution of this case. For these reasons and the
others above, it is ordered that the Amended Scheduling Order (Docket No. 64) is
amended to extend the discovery cut-off date up to and including May 28, 2013 for the
limited purpose of deposing Mike Dieck, Tom Albershardt, Brian Rademacher, and John

5
Glassburner. Each deposition shall be limited to two hours. If possible, all depositions
should be scheduled on the same day.

WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Plaintiffs’ Motion to Amend Scheduling Order to Extend
Discovery Cutoff Solely to Depose Mike Dieck, Tom Albershardt, Brian Rademacher,
and John Glassburner (Docket No. 74) is GRANTED. The Amended Scheduling Order
(Docket No. 64) is amended to extend the discovery cut-off date up to and including
May 28, 2013.

Date: May 7, 2013
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge