Chapter 1, The Retired Enlisted Association, Inc. v. Auto-Owners Insurance Company,

Filing 36

ORDER; 31 Plaintiff's Amended Motion to Amend Civil Scheduling Order Pursuant to Fed.R.Civ.P. 16(b)(4) is DENIED. 35 Defendant's Motion to Amend Scheduling Order to Extend Discovery Cutoff for Sole Purpose of Completing Certain Depositions on April 30th and May 1st is DENIED without prejudice, by Magistrate Judge Kristen L. Mix on 3/30/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01905-KLM
CHAPTER 1, THE RETIRED ENLISTED ASSOCIATION, INC., a Colorado non-profit
corporation,
Plaintiff,
v.
AUTO-OWNERS INSURANCE COMPANY, a Michigan corporation,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Amended Motion to Amend Civil
Scheduling Order Pursuant to Fed.R.Civ.P. 16(b)(4) [#31]1 (“Plaintiff’s Motion”) and
Defendant’s Motion to Amend Scheduling Order to Extend Discovery Cutoff for Sole
Purpose of Completing Certain Depositions on April 30th and May 1st [#35]
(“Defendant’s Motion” and, collectively with Plaintiff’s Motion, the “Motions”). Defendant
filed a Response [#33] to Plaintiff’s Motion and Plaintiff filed a Reply [#34] in further support
of its Motion. Defendant states that the extension requested in Defendant’s Motion is “to
accommodate the schedule of Plaintiff’s counsel, and so Defendant believes Plaintiff will
not oppose the relief requested, but has not been able to formally confirm that with
Plaintiff.” Defendant’s Motion [#35] at 1. The Court has reviewed the Motions, the
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“[#31]” 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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Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised
in the premises. For the reasons set forth below, Plaintiff’s Motion [#31] is DENIED and
Defendant’s Motion [#35] is DENIED without prejudice2.
I. Background
In this insurance action, Plaintiff alleges that Defendant breached an insurance
contract and delayed and unreasonably denied payment of benefits owed to Plaintiff under
its insurance policy. Compl. [#4] at 2, ¶¶ 3, 37-63. On September 10, 2014, the Court
entered a Civil Scheduling Order [#21] (the “Scheduling Order”) governing this case. The
Scheduling Order deadlines include, among other deadlines, a discovery cut-off of March
31, 2015; an affirmative expert disclosure deadline of February 15, 2015; and a rebuttal
expert disclosure deadline of March 13, 2015. Sched. Order [#21] § 9(b) and (d)(3)-(4).
A.

Plaintiff’s Motion
In Plaintiff’s Motion, Plaintiff requests a nineteen-day extension of the affirmative

expert disclosure deadline and the rebuttal expert disclosure deadline. Plaintiff’s Motion
[#31] at 2. In support of the requested relief, Plaintiff states that it “has retained experts for
this matter and these individuals are working to complete their reports.” Id. Plaintiff
explains that the retained experts have requested additional time to complete their reports.
Id. Plaintiff argues that it “was diligent and timely in its retention of experts” and that the
expert reports “will be provided to the defense as soon as possible . . . .” Id. Plaintiff
maintains that it requests extension of the deadlines for both parties and that such an
extension would not cause any undue delay or prejudice.” Id.

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The Court may rule on a pending motion at any time. D.C.COLO.LCivR 7.1(d).

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In the Response, Defendant argues that it will be prejudiced because it timely
disclosed its affirmative experts and Plaintiff’s affirmative experts would then have an
opportunity to review those expert reports before finalizing their own reports. Response
[#33] at 1-2. Defendant further argues that Plaintiff has not shown good cause for the
requested extension because it simply offers the “unsupported statements of counsel as
evidence [which] . . . merely indicate that Plaintiff’s experts . . . ‘would like additional time
to complete their work.’” Id. at 2 (quoting Plaintiff’s Motion [#31] at 2). As a result,
Defendant argues that Plaintiff “should endorse ‘rebuttal’ experts and not be permitted to
serve untimely ‘affirmative’ expert disclosures.” Id. at 2. In the alternative, Defendant
states that if Plaintiff’s motion is granted, it “requests that it be permitted the full four (4)
weeks initially contemplated by the Scheduling Order to serve any rebuttal expert
disclosures.” Id. At 3-4.
In the Reply, Plaintiff argues that Defendant will not be prejudiced if Plaintiff’s Motion
is granted because pursuant to Fed. R. Civ. P. 26(a)(2)(E), any expert can supplement his
or her expert report as additional information becomes available. Reply [#34] at 1-2.
Plaintiff also attaches email correspondence between the parties’ counsel to support its
position that because it requested extension of the expert disclosure deadlines prior to
Defendant serving its expert reports, the “alleged prejudice suffered by Defendant’s
providing of the expert report is entirely self-made.” Reply [#34] at 2; Reply, Ex. A [#34-1]
at 1.
B.

Defendant’s Motion
As an initial matter, Defendant’s Motion does not comply with D.C.COLO.LCivR

7.1(a), which provides as follows:
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Before filing a motion, counsel for the moving party or an unrepresented
party shall confer or make reasonable good faith efforts to confer with any
opposing counsel or unrepresented party to resolve any disputed matter. The
moving party shall describe in the motion, or in a certificate attached to the
motion, the specific efforts to fulfill this duty.
In its Motion, Defendant explains that
[c]ounsel for Defendant conferred with counsel for Plaintiff regarding the
depositions and dates set forth herein, and attempted to confer regarding
the specific relief requested in this motion. Plaintiff provided and is available
for the dates for depositions set forth herein, and the extension of the
discovery cutoff is sought to accommodate the schedule of Plaintiff’s
counsel, and so Defendant believes Plaintiff will not oppose the relief
requested, but has not been able to formally confirm that with Plaintiff.
Should Defendant be able to confirm that Plaintiff does not oppose the relief
requested herein, Defendant will promptly advise the Court.
Defendant’s Motion [#35] at 1-2.
“[T]o satisfy the requirements of Rule 7.1[(a)], the parties must hold a conference,
possibly through the exchange of correspondence but preferably through person-to-person
telephone calls or face-to-face meetings, and must compare views and attempt to reach
an agreement, including by compromise if appropriate.” Hoelzel v. First Select Corp., 214
F.R.D. 634, 636 (D. Colo. 2003). The point of the conferral requirement is to have the
parties exchange ideas regarding the requested relief and, hopefully, eliminate through
discussion or compromise any issues they can before filing a motion so as to limit the
issues brought before the Court. See Carroll v. Allstate Fire and Casualty Ins. Co., No. 12cv-00007-WJM-KLM, 2013 WL 5769308, at *4 (D. Colo. Oct. 24, 2013) (“The purpose of
Rule 7.1[(a)] is to decrease the number and length of motions filed in each case.”).
Defendant’s Motion is subject to denial for failure to comply with Rule 7.1(a). While it is
logical, as Defendant argues, that Plaintiff would not oppose a motion seeking extension
of the discovery cut-off to accommodate deposition dates proposed by Plaintiff, a logical
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deduction does not equal conferral. Accordingly, Defendant’s Motion is denied without
prejudice. Any future filing that does not comply with any applicable rule will be
stricken.
II. Standard of Review Applicable to Plaintiff’s Motion
Pursuant to Fed. R. Civ. P. 16(b)(4), the Scheduling Order “may be modified only
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 deadlines set in scheduling orders require that parties conduct
discovery efficiently and promptly. 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

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may be relevant to claim amendment sooner rather than later.”). Further, the “‘good cause’
requirement reflects the important role a scheduling order plays in the court’s management
of its docket.” Home Design Servs., Inc. v. Trumble, No. 09-cv-00964-WYD-CBS, 2010 WL
1435382, at *6 (D. Colo. April 6, 2010) (citations omitted).
III. Analysis of Plaintiff’s Motion
As Defendant argues, Plaintiff fails to show good cause for the requested extension
of the affirmative and rebuttal expert disclosure deadlines. In support of the requested
relief, Plaintiff states that it “has retained experts for this matter and these individuals are
working to complete their reports.” Plaintiff’s Motion [#31] at 2. Plaintiff explains that the
retained experts have requested additional time to complete their reports, but offers no
information regarding their attempts to meet the affirmative expert disclosure deadline or
explanation why the reports could not be completed by the deadline. Id. Even after this
deficiency was pointed out in the Response, Plaintiff ignored this issue and, instead, simply
argued in the Reply that there was no prejudice to Defendant because Defendant was
aware that Plaintiff intended to request an extension of the expert disclosure deadlines prior
to the date on which Defendant made its affirmative expert disclosures. Reply [#34] at 2.
Whether Defendant knew that Plaintiff intended to request extension of the expert
disclosure deadlines is irrelevant to whether Plaintiff was diligent in attempting to meet the
deadlines. Without any explanation regarding Plaintiff’s diligence in attempting to meet the
affirmative expert disclosure deadline, the Court cannot find good cause for the requested
relief. Accordingly, Plaintiff’s Motion [#31] is denied.

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IV. Conclusion
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion [#31] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion [#35] is DENIED without
prejudice.
Dated: March 30, 2015

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