U.S. Bank National Association v. Westland Plaza LLC et al

Filing 28

ORDER by Magistrate Judge Kristen L. Mix on 2/19/15. Plaintiff's Motion for Amendment to Scheduling Order's Deadlines to Designate Expert Witnesses [#26] is GRANTED.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01525-LTB-KLM
U.S. BANK NATIONAL ASSOCIATION, as Trustee, as successor in interest to Bank of
America, National Association, as successor by merger to LaSalle Bank National
Association, as Trustee for the registered holders of Bear Stearns Commercial Mortgage
Securitie,
Plaintiff,
v.
WESTLAND PLAZA LLC, a limited liability company,
MARKO C. BURNS, an individual, and
BRUCE I. SHAPIRO, an individual,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Amendment to
Scheduling Order’s Deadlines to Designate Expert Witnesses [#26]1 (the “Motion”).
The Motion is referred to this Court for disposition [#27]. Defendants have not yet filed a
response, but the Court may rule on a pending motion at any time. D.C.COLO.LCivR
7.1(d). The Court has reviewed the Motion, the entire docket, and the applicable law, and
is sufficiently advised in the premises. For the reasons set forth below, the Motion [#26]
is GRANTED.

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“[#26]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.

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I. Background
In this action, Plaintiff alleges that Defendants breached written contracts and
“fail[ed] to repay a $10.5 million loan to” Plaintiff. Am. Compl. [#23] at 2, ¶¶ 55-84. On
October 14, 2014, the Court entered a Scheduling Order [#15] governing this case. The
Scheduling Order deadlines include, among other deadlines, an affirmative expert
disclosure deadline of February 13, 2015 and a rebuttal expert disclosure deadline of
March 13, 2015. Sched. Order [#15] § 9(d)(3)-(4).
In the Motion, Plaintiff requests a two-week extension of each of these two
deadlines. Motion [#26] at 3. Plaintiff notes in the Motion that “[a]lthough the parties
remain engaged in active settlement discussions, [Defendants’ counsel] indicated that
Defendants would oppose the relief requested in this motion.” Id. at 2. In support of the
requested relief, Plaintiff states that [t]he parties have been actively engaged in settlement
discussions for a couple of months with the goal of determining whether this action can be
resolved and dismissed without further litigation.” Id. Plaintiff avers that it is currently
considering Defendants’ most recent settlement proposal and asks the Court to extend the
affirmative expert disclosure deadline and the rebuttal expert disclosure deadline by two
weeks so Plaintiff can “continue working to resolve this matter without incurring the high
cost of engaging expert witnesses and proceeding with expert witness discovery.” Id. at
2-3. Plaintiff argues that the on-going settlement discussions and the potential savings of
fees and costs by both Plaintiff and Defendants as a result of the extensions constitutes
good cause to grant the Motion. Id. at 3-4.
II. Standard of Review
Pursuant to Fed. R. Civ. P. 16(b)(4), the Scheduling Order “may be modified only
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for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). To demonstrate
good cause pursuant to Fed. R. Civ. P. 16(b)(4), the moving party must “show that it has
been diligent in attempting to meet the deadlines, which means it must provide an adequate
explanation for any delay.” Strope v. Collins, 315 F. App’x 57, 61 (10th Cir. 1009) (citation
omitted); Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). “Properly
construed, ‘good cause’ means that 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 Acad. v. Medtronic, Inc., 194 F.R.D. 684,
687 (D. Colo. 2000) (internal quotation and citation omitted); accord Summers v. Mo. Pac.
R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997) (holding that “total inflexibility is undesirable”
in the context of a motion to adopt a new scheduling order). “While rigid adherence to the
pretrial scheduling order is not advisable,” SIL-FIO v. SFHC, Inc., 917 F.2d 1507, 1519
(10th Cir. 1990), the pleading amendment deadline requires that parties conduct discovery
efficiently and promptly in order to timely comply. See Granite Southlands Town Center
LLC v. Alberta Town Center, LLC, No. 09-cv-00799-ZLW-KLM, 2010 WL 2635524, at *2
(D. Colo. June 8, 2010) (noting that “deadlines to amend a party’s pleading are set at the
outset of the case to require [parties] to prioritize their discovery and attempt to obtain
information that may be relevant to claim amendment sooner rather than later.”).
III. Analysis
The Court has previously held that a party’s failure to engage an expert and timely
move for extension of the expert disclosure deadline does not constitute good cause for
amendment of the scheduling order. See e.g., Am. Nat’l Prop. & Cas. Co. v. Uscier, No.
09-cv-02053-CMA-MJW, 2010 WL 2802653, at *2 (D. Colo. July 14, 2010); Rothermund
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v. City of Craig, No. 00-N-311, 2000 WL 1456952, at *1 (D. Colo. Sept. 25, 2000).
However, in those cases the party seeking the extension sought extension of the deadlines
after their expiration and therefore, also had to show that “the failure to act was the result
of excusable neglect.” Fed. R. Civ. P. 6(b); see also Uscier, 2010 WL 2802653, at *1-2;
Rothermund, 2000 WL 1456952, at *1. In this case, Plaintiff filed the Motion before the
expiration of the first deadline which it seeks to extend. Accordingly, the Court finds that
this case is more akin to Ehler v. IPEX, Inc., 2009 WL 1392075, at *4 (D. Colo. May 15,
2009), in which the Court granted a stipulated motion to amend the scheduling order and
found that the parties’ engagement in settlement discussions constituted good cause for
amendment of the scheduling order. In that case the Court noted that discovery would
continue while the parties engaged in settlement negotiations. Id. Similarly, here, Plaintiff
notes that the April 14, 2015 discovery cut-off deadline and the February 1, 2016 trial date
remain in place and will keep the case on schedule even if the two-week extensions are
granted. Motion [#26] at 4. As a result, the Court is satisfied that the brief two-week
extensions will not cause any significant delay of this case and finds that, in these
circumstances, Plaintiff has shown good cause for the requested amendment of the
Scheduling Order to extend the expert disclosure deadlines by two weeks.
However, Plaintiff is warned that it cannot ignore its discovery obligations in the
hopes that the parties will reach settlement. Counsel must strive to be a good case
manager by balancing his client’s desire for cost management with the client’s obligation
to participate in discovery as ordered by the Court. See Home Design Servs., Inc. v.
Trumble, No. 09-cv-00964-WYD-CBS, 2010 WL 1435382, at *4-5 (D. Colo. April 9, 2010)
(discussing those obligations and denying motion to amend a scheduling order). As a
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result, the Court will not look favorably on any future contested motions to amend the
Scheduling Order that rely only on on-going settlement negotiations as the basis for a
finding of good cause.
IV. Conclusion
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#26] is GRANTED. Accordingly,
IT IS FURTHER ORDERED that the Scheduling Order entered on October 14, 2014
[#15] and amended on November 12, 2014 [#19] and November 19, 2014 [#22], is further
modified to extend the following deadlines:
•

Affirmative Expert Disclosure Deadline

February 27, 2015

•

Rebuttal Expert Disclosure Deadline

March 27, 2015

Dated: February 19, 2015

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