Dedmon v. Chelsea Food Services et al
ORDER ON DEFENDANTS' MOTION TO ENFORCE SCHEDULING ORDER: Defendants' 82 Motion to Enforce is GRANTED. Defendants' 88 Motion for Leave is DENIED as moot. By Magistrate Judge Nina Y. Wang on 4/14/2015. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-0005-WJM-NYW
CONTINENTAL AIRLINES, INC.,
UNITED AIR LINES, INC., and
UNITED CONTINENTAL HOLDINGS, INC.,
ORDER ON DEFENDANTS’ MOTION TO
ENFORCE SCHEDULING ORDER
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendants’ Motion to Enforce Scheduling Order
and Quash Plaintiff’s Subpoena Duces Tecum (“Motion to Enforce”) filed on March 16, 2015
[#82], which was referred to this Magistrate Judge pursuant the Order of Reference “to conduct
nondispositive proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P.
72(a)” [#10] and the Memorandum dated March 17, 2015 [#83]. Also before the court is
Defendants’ Motion for Leave to File a Reply in Support of Their Motion to Enforce Scheduling
Order and Quash Plaintiff’s Subpoena Duces Tecum [#88], filed on April 2, 2015 (the “Motion
for Leave”), and referred to this Magistrate Judge pursuant to the Memorandum dated April 2,
2015. The court has reviewed the pending Motion to Enforce, the Response filed by Plaintiff
Carolyn Dedmon [#86], and the exhibits thereto. Finding that the underlying Motion to Enforce
should be granted on the record already before the court, for the reasons discussed below, the
court GRANTS the Motion to Enforce and DENIES the Motion for Leave as moot.
This case arises out of an alleged injury sustained by Plaintiff Carolyn Dedmon
(“Plaintiff” or “Ms. Dedmon”) during the course of her employment at Denver International
Airport (“DIA”). As Ms. Dedmon walked through the kitchen of Defendant Chelsea Food
Services (“CFS”), a wholly-owned subsidiary of United Airlines, she slipped, fell,
allegedly as a result, suffered serious bodily injury. [#1-4, ¶ 8].
Ms. Dedmon filed her
original Complaint against CFS, Continental Airlines, Inc., United Air Lines, Inc., and United
Continental Holdings (collectively, “Defendants” or “United”) on October 22, 2012, in Denver
County District Court, alleging three counts: (1) premises liability; (2) negligence; and (3) res
ipsa loquitor. [#1-4].
United filed a Notice of Removal on January 4, 2013. [#1] Four days later, Ms. Dedmon
filed a First Amended Complaint, dismissing CFS and its claims for negligence and res ipsa
loquitor. [#9]. United then answered on January 22, 2013 [#15], and the court entered a
Scheduling Order on March 11, 2013, governing pretrial matters including discovery. [#21].
The Scheduling Order set the following deadlines: (1) Plaintiff’s expert disclosures and reports
on July 11, 2013; (2) Defendants’ expert disclosures and reports on August 9, 2013; (3) close of
fact discovery on September 11, 2013, and (4) close of expert discovery on October 11, 2013.
[Id.]. The Scheduling Order expressly provided that “The scheduling order may be altered or
amended only upon a showing of good cause.” [Id. at § 13].
On July 29, 2013, the Parties jointly moved the court for modification of the Scheduling
Order, explaining that the amount of medical records and potential out of state depositions
necessitated additional time. [#24]. The court granted the motion, resetting the schedule for
expert disclosures with Plaintiff’s designation of experts no later than October 11, 2013;
Defendants’ designation of experts no later than November 9, 2013; and Plaintiff’s designation
of rebuttal witnesses no later than December 13, 2013. [#25]. The court also set the date for the
close of fact discovery on December 11, 2013; and expert discovery on January 11, 2013. [Id.]
The Parties were unable to meet those deadlines, and on October 28, 2013, filed another
Joint Motion to Modify the Scheduling Order, seeking a further extension to the deadlines based
on the volume of medical records and medical providers in this case. [#26]. The court held a
hearing on the Joint Motion to Modify the Scheduling Order on November 19, 2013, and
permitted the further extension of the operative deadlines as follows: (1) Plaintiff’s expert
disclosures on January 20, 2014; (2) Defendants’ expert disclosures (affirmative and rebuttal) on
February 18, 2014; (3) Plaintiff’s rebuttal expert disclosures on March 14, 2014; and (4) close of
all discovery (without distinction between fact and expert) on April 15, 2014. [#29]. In granting
the Joint Motion, the court expressly noted that it “[did] not intend to extend the schedule again
based on difficulties in obtaining medical records through the use of release forms.” [Id.]
On March 18, 2014, Ms. Dedmon filed a third Motion to Modify the Scheduling Order,
to which Defendants objected. The court heard argument on April 4, 2014 on the Motion to
Modify the Scheduling Order, during which it granted an extension of time to the close of all
discovery until July 14, 2014, and for the filing of dispositive motions until July 14, 2014. [#44].
As noted by Defendants and undisputed by Plaintiff, it was not until March 3, 2015,
nearly a full eight and a half months after the close of fact discovery in this action, that
“Plaintiff’s counsel served upon Defendants a copy of a subpoena duces tecum directed to
Plaintiff’s former employer, Frontier Airlines, Inc. (‘Frontier’), which requested documents
related to Plaintiff’s October 23, 2010 injury and her related Worker’s Compensation claim with
[#82, at 3].
Plaintiff contends that on March 20, 2013, she provided Frontier Airlines, Inc.
(“Frontier”) with an authorization to release (among other documents) the medical
records belatedly requested by the subpoena at issue here; that her counsel later waited to first
contact counsel for Frontier on May 21, 2014 in conversation and correspondence directed at
obtaining said records (allegedly due to difficulties securing the records from Plaintiff’s medical
providers directly); and that her counsel subsequently waited until December 8, 2014—nearly a
half year after the court-Ordered cut-off for the close of all discovery had passed—to next reach
out to counsel for Frontier. [#86, at 2]. Plaintiff concedes that it was not until March 3, 2015 she
“issued” the “Subpoena Duces Tecum” at issue to Frontier. [Id., at #3].
Standard of Review
A subpoena duces tecum issued to a third party is “discovery” within the meaning of the
Federal Rules of Civil Procedure. Rice v. U.S., 164 F.R.D. 556, 556–57 (N.D. Okla. 1995).
Accordingly, discovery conducted pursuant to a Rule 45 subpoena must be concluded by the
deadline specified in the court’s Scheduling Order. Grant v. Otis Elevator Co., 199 F.R.D. 673,
675 (N.D. Okla. 2001); Rice, 164 F .R.D. at 558.
Regardless of the moving party’s standing to challenge a subpoena directed to a nonparty, courts possess the inherent power to quash an untimely subpoena. See, e.g., Galloway v.
Islands Mechanical Contractor, Inc., 2013 WL 163985, *4 (D.V.I. Jan. 14, 2013); Peterbilt of
Great Bend, LLC v. Doonan, 2006 WL 3193371, *2 (D. Kan. Nov. 1, 2006); Revander v.
Denman, 2004 WL 97693, *1 (S.D.N.Y. 2004).
Application to Plaintiff’s Untimely Subpoena
The subpoena at issue here violates the court’s Third Amended Scheduling Order
because it seeks to conduct discovery well beyond the deadline provided for by that Order, after
multiple prior extensions of discovery deadlines (including the discovery cut-off) in this action.
Therefore, the court holds that the subpoena should be quashed pursuant to the court’s inherent
powers. Far from establishing “good cause” to yet again extend the discovery cut-off, Plaintiff’s
serial and extended delays in seeking the discovery sought—including by way of diligently
pursuing motion practice if necessary on account of any purported misconduct by Defendants or
any third party—amply demonstrate that there is no injustice in holding Plaintiff to the discovery
cut-off that passed many months before the instant subpoena issued.
Based on the court’s review of the papers and supporting evidence, and application of the
pertinent case law, IT IS HEREBY ORDERED that:
(1) Defendants’ Motion to Enforce is GRANTED;
(2) Defendants’ Motion for Leave is DENIED as moot.
DATED April 14, 2015.
BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge
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