Fairway 16 Heatherridge Association, The v. American Family Mutual Insurance Company

Filing 66

ORDER by Magistrate Judge Nina Y. Wang on 1/7/16. Plaintiff's Motion to Amend Discovery Deadline to Allow Additional Discovery 58 is DENIED. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02717-WJM-NYW
THE FAIRWAY 16 HEATHERRIDGE ASSOCIATION,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter is before the court on the Motion to Amend Discovery Deadline to Allow
Additional Discovery (“Motion”). [#58, filed Nov. 18, 2015]. This matter was referred to this
Magistrate Judge pursuant to the Reassignment dated February 10, 2015 [#20] and the
Memorandum dated November 18, 2015 [#59]. Brief argument on the pending Motion was held
during the Final Pretrial Conference on December 3, 2015, and the court deferred ruling on the
Motion until Plaintiff had an opportunity to file a Reply. [#62]. Plaintiff filed its Reply on
December 8, 2015 [#65]. Having reviewed the Parties’ briefing, the applicable case law, the
case file, and being fully advised of the premises, this court hereby DENIES the Motion for the
following reasons.
BACKGROUND
Plaintiff The Fairway 17 Heatherridge Association (“Plaintiff”) moves the court to allow
discovery after the September 1, 2015 discovery cutoff date regarding a weather or hail report
from Weather Decision Technologies, Inc. (“Weather Report”). [#58 at 1]. Plaintiff seeks an

extension so that it may serve a Rule 45 subpoena on a third party, Weather Technologies
Decisions, Inc. [#58 at 2]. Plaintiff states that the Weather Report was ordered by Defendant
from Weather Technologies Decisions, Inc. on January 22, 2014 for an “event date” of
September 14, 2013 and an “event location” of 2610 S. Vaughn Way, Aurora, CO 80014. [Id. at
1]. September 14, 2013 is the Date of Loss and 2610 S. Vaughn Way is the address of one of
Plaintiff’s buildings that is the subject of the claim at issue in this case. [Id.].
The discovery cutoff was originally August 10, 2015, but was extended to September 1,
2015 upon joint motion of the Parties because of scheduling conflicts with potential experts.
[#38]. Defendant was granted a fifteen-day extension of the discovery cutoff to September 15,
2015 to allow additional time for it to serve responses to written discovery requests. [#45].
Plaintiff filed the present Motion requesting another extension of the discovery cutoff to pursue
discovery of the Weather Report on November 18, 2015. [#58].
Plaintiff claims that the earliest it could have become aware that Defendant had not
produced the Weather Report was September 16, 2015, when Defendant served discovery
responses. [#58 at 6]. Plaintiff states that the parties’ representatives conferred about the lack of
production of the Weather Report on October 9, 2015, November 6, 2015, and November 10,
2015. [#58 at 2-3].
ANALYSIS
Motions to amend a Scheduling Order must be made pursuant to Rule 16(b)(4) for good
cause, and amendments are granted with the judge’s consent. Fed. R. Civ. P. 16(b)(4). Good
cause is not simply inconvenience to counsel; a party must demonstrate that it has been diligent
in attempting to meet the deadlines, which means it must provide an adequate explanation for
any delay. Lehman Bros. Hldgs, Inc. v. Universal American Mortg’g Co., LLC, 300 F.R.D. 678,

681 (D. Colo. 2014). The good cause standard “primarily considers the diligence of the party
seeking the amendment.” Dag Enters., Inc. v. ExxonMobil Corp., 226 F.R.D. 95, 105 (D.D.C.
2005) (“[m]ere failure on the part of counsel to proceed promptly with the normal processes of
discovery and trial preparation should not be considered good cause”). Lack of prejudice to the
nonmovant or lack of bad faith on the part of the moving party do not constitute “good cause.”
See Colorado Visonary Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).
In this case, the court finds that Plaintiff has not shown good cause for an amendment to
the Scheduling Order to allow discovery of the Weather Report. Plaintiff has not established that
even if it had it been diligent, it would have not been able to obtain the Weather Report during
fact discovery. Defendant provides evidence in its response in opposition to the Motion that
Plaintiff had evidence of the possible existence of the Weather Report since at least January
2015. See [#61 at 4]. As part of the Initial Disclosures propounded on January 12, 2015,
Defendant identified invoices from Weather Decision Technologies. [#61-2 at 5]. The Initial
Disclosures do not identify the actual Weather Report for Weather Decision Technologies. [Id.].
Plaintiff does not, however, identify any efforts that it made prior to the close of
discovery to identify or specifically request production of the Weather Report, other than the
discovery requests that were propounded July 30, 2015. [#58 at 4].

The deadline to complete

discovery was originally August 10, 2015 [#19 at 10], and then was extended to September 1,
2015 upon joint motion of the Parties due to the scheduling conflicts of potential experts. [#38].
Had the court not extended discovery by its Order dated July 28, 2015, Plaintiff’s discovery
requests that were propounded two days later would have already been untimely. While it is the
prerogative of Plaintiff to await the end of discovery to seek information, such delay does not
establish diligence or constitute good cause under Rule 16(b).

The court also notes that Plaintiff was not diligent after the service of the discovery
responses and the close of discovery to try to obtain the Weather Report. Plaintiff did not seek
the Weather Report specifically from Plaintiff until October 9, 2015. [#58 at 5]. By that point,
discovery had been closed for over a month; dispositive motions had been briefed [#46, #47];
and the Final Pretrial Conference in which the Parties had to identify their exhibits was quickly
approaching. Plaintiff states that it conferred with Defendant on three occasions after the close
of discovery, the first two of which were separated by almost a month. Yet Plaintiff failed to file
the instant motion until November 18, 2015 [#58], over two months after discovery closed and
two weeks prior to the Final Pretrial Conference. Plaintiff’s further delay in seeking relief from
this court also does not reflect diligence required by Rule 16(b).
Therefore, IT IS ORDERED that:
(1)

Plaintiff’s Motion to Amend Discovery Deadline to Allow Additional Discovery.

[#58] is DENIED.

DATED: January 7, 2016

BY THE COURT:
s/ Nina Y. Wang___________
United States Magistrate Judge