Brandt et al v. Honnecke et al

Filing 137

ORDER by Magistrate Judge Nina Y. Wang on 12/21/2017. Defendants' Motion for Two-Day Extension of Time 129 is GRANTED; and Plaintiffs shall FILE a Response to the Motion to Exclude Testimony of Mark Pedigo no later than January 8, 2018. (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02785-RM-NYW
STEVEN LEE BRANDT, an individual,
JAMES CLAY WALTERS, an individual, and
COLORADO BOX COMPANY, INC., a Colorado corporation,
Plaintiffs/Counterclaim Defendants,
v.
VON HONNECKE, an individual,
CHASE HONNECKE, an individual, and
S&H SHEET METAL, INC., a Colorado corporation,
Defendants/Counterclaimants.
ORDER
Magistrate Judge Nina Y. Wang
This matter is before the court on Defendants Von Honnecke, Chase Honnecke, and S&H
Sheet Metal, Inc.’s (collectively, “Defendants”) Motion for Two-Day Extension of Time (the
“Motion”), filed December 4, 2017 [#129], which is before the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b), the Order of Referring Case dated March 28, 2016 [#21], and the
memorandum dated December 11, 2017 [#132]. This court has reviewed the Motion and related
briefing, the entire case file, and the applicable law. For the reasons stated herein, I GRANT the
Motion.
BACKGROUND
This court has discussed the background of this matter in its prior Recommendation, see
[#66], and does so here only as it pertains to the instant Motion. This patent infringement case
was initially filed by pro se Plaintiffs Steven Lee Brandt (“Mr. Brandt”) and James Clay Walters
(“Mr. Walters”) (collectively, “Individual Plaintiffs”) against Defendants. [#1]. In that original

Complaint, the Individual Plaintiffs alleged that they were the inventors of United States Patent
No. 8,999,029 (the “‘029 Patent” or “Asserted Patent”) and owned “all rights, title, and interests
in the Asserted Patent.” [Id. at ¶ 9]. The ‘029 Patent entitled “Furnace Filter Box and Method of
Assembly” was filed on November 2, 2012, and was issued on April 7, 2015 [#42-1 at 2]. The
Asserted Patent has twenty claims, including both device and method claims, and at a high level,
is directed at a furnace filter box that is adapted for receiving a furnace filter for filtering intake
air that can be quickly assembled and cut to size while maintaining the strength of the box and is
easily shipped. [#42-1]. In that original Complaint, the Individual Plaintiffs alleged that S&H
“has been and is now directly and indirectly infringing one or more claims of the ‘029 Patent by
(1) making, having made, manufactured, distributed, using offering to sell, or selling the patent
inventions, (2) by actively inducing others to purchase, distribute, use, offer to sell, or sell the
patented inventions, and, or (3) by contributing to the manufacture, distribution, use, sale, and, or
offer for sale the patented inventions in the State of Colorado, this Judicial District, and the
United States of America.” [#1 at ¶ 35].
In response to the Honorable Gordon G. Gallagher’s Order to Show Cause on January 12,
2016, the Individual Plaintiffs filed an “Amendment to Claim” and a proposed Amended
Complaint. [#8, #8-1]. Judge Gallagher directed the Clerk of the Court to docket the Amended
Complaint on February 29, 2016. [#10, #11]. Defendants then filed a “First Amended Answer
and Counterclaim” on March 10, 2016. [#17]. On March 30, 2016, Brian D. Smith entered his
appearance on behalf of the Individual Plaintiffs.

[#25].

This court held a Scheduling

Conference on April 4, 2016, at which all Parties were represented and participated in submitting
the proposed Scheduling Order. [#27, #28, #29].

2

On April 21, 2016, the Individual Plaintiffs filed a renewed Motion to Amend the
Amended Complaint, indicating that they wished to join one party to the action and to “clean up”
the First Amended Complaint that was filed pro se. [#35]. Defendants did not oppose the filing
of a Second Amended Complaint, and said complaint was docketed on May 4, 2016. [#42].
The Second Amended Complaint added Colorado Box Company, Inc. (“Colorado Box”)
as a plaintiff, based on the Individual Plaintiffs’ assignment of their right, title, and interest in the
‘029 Patent to Colorado Box on March 28, 2016. [#42 at ¶ 3]. S&H was also identified as S&H
Sheet Metal, Inc., rather than S&H Heating, A/C, Sheetmetal Co. Compare [id. at 1, ¶ 9] with
[#11]. The Second Amended Complaint asserted three causes of action as to the ‘029 Patent:
(1) direct infringement by Defendants in violation of 35 U.S.C. § 271(a); (2) induced
infringement by Defendants in violation of 35 U.S.C. § 271(b); and (3) contributory infringement
by Defendants in violation of 35 U.S.C. § 271(c). [#42]. As relief, Plaintiffs sought damages,
prejudgment interest, enhanced damages based on willful infringement, injunctive relief, and
attorney’s fees and costs. [Id. at 14–16]. Plaintiffs also demanded a jury trial. [Id. at 15].
Defendants filed a “Second Amended Answer and Counterclaim” on May 17, 2016 [#46]. The
undersigned subsequently issued a Recommendation to deny Plaintiffs’ request to file a Third
Amended Complaint, which the presiding judge, the Honorable Raymond P. Moore, adopted in
full. See [#66, #70]. Therefore, the Second Amended Complaint is the operative one.
The Parties proceeded through discovery pursuant to a Scheduling Order [#29] that was
subsequently amended to account for the appearance of counsel on behalf of Plaintiffs [#54] and
to allow for an extension of time for the designation of expert witnesses [#109]. Pursuant to this
court’s April 28, 2017 Order, any motions directed at excluding expert testimony pursuant to
Rule 702 of the Federal Rules of Evidence were due no later than November 28, 2017. [#109].

3

Defendants filed their Motion to Exclude Testimony of Mark Pedigo (“Motion to Exclude”) on
November 30, 2017. [#127]. On December 4, 2017, Defendants filed the instant Motion,
requesting a two-day extension of time, nunc pro tunc, to file their Motion to Exclude [#127].
[#129]. Defendants moved for an extension under Local Rule 6.1(a), 1 following Plaintiffs’
demand that they withdraw their untimely Motion to Exclude, arguing that the “Markman Order
has not yet been entered, and the matter has not been set for trial”; thus, no party will be
prejudiced by the extension. See [id. at 2].
In response, Plaintiffs argue that the instant Motion is governed by Rule 16(b)(4), not
Local Rule 6.1(a), because Defendants seek to modify the Scheduling Order, which requires a
showing of good cause. See [#131 at 2]. According to Plaintiffs, Defendants fail to demonstrate
good cause but, rather, “the Motion underscores that the basis for amending the Scheduling
Order is based on carelessness.” [Id. at 3]. Plaintiffs continue that granting Defendants’ Motion
would “reward, and not deter, untimely submissions from Defendants[,]” which Plaintiffs
suggest has been a common theme by Defendants. [Id. at 3–4].
In Reply, Defendants reassert their position that the Motion is one properly submitted
pursuant to Local Rule 6.1(a), and argue that “total inflexibility” in allowing amendment of the
Scheduling Order is “undesirable.” [#133 at 2]. Further, Defendants contend that refusing their
request for a two-day extension, nunc pro tunc, would allow Plaintiffs to proffer expert
testimony from Mr. Pedigo that is “clearly irrelevant, baseless, and inadmissible”—a violation of
the court’s gatekeeping duties under Rule 702 of the Federal Rules of Evidence. [Id. at 3–4].
This court considers the Parties’ arguments below.
1

See D.C.COLO.LCivR 6.1(a) (allowing parties to “stipulate in writing to one extension of not
more than 21 days beyond the time limits prescribed by the Federal Rules of Civil Procedure to
respond to a pleading or amended pleading, interrogatories, requests for production of
documents, or requests for admissions.”).
4

LEGAL STANDARD
While Plaintiffs argue that Defendants fail to satisfy Rule 16(b)(4)’s good cause
requirement to modify the Scheduling Order, Rule 6(b)(1)(B) governs when a party seeks an
extension of time upon a motion made after the expiration of the deadline. 2 Fed. R. Civ. P.
6(b)(1)(B). This rule provides that the court may extend an expired deadline if the moving party
has failed to act because of excusable neglect. Id.

In interpreting “excusable neglect,” the

United States Supreme Court observed that courts would be permitted, where appropriate, to
accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening
circumstances beyond the party’s control. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 388 (1993). “Although inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute ‘excusable’ neglect, it is clear that ‘excusable
neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not limited strictly to omissions
caused by circumstances beyond the control of the movant.” Id. at 392. The Pioneer Court
identified four factors for the court to consider: (1) prejudice to the nonmoving party; (2) length
of delay and its potential impact on judicial proceedings; (3) the reason for delay, including
whether it was within the reasonable control of the movant; and (4) whether the movant acted in
good faith. Id. at 398–99; accord Hamilton v. Water Whole Int’l. Corp., 302 F. App’x. 789, 798
(10th Cir. 2008) (noting the court may consider the existence of good faith on the part of the

2

The United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) has previously
observed that the excusable neglect standard under Rule 6 and the good cause standard under
Rule 16 are “essentially the same standard.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249
n.2 (10th Cir. 2015). This court finds the application of Rule 6 more appropriate in this instance
where the deadline clearly expired with no immediate action by the moving party.
5

moving party, with the reason for the delay being a crucial factor) (citing United States v. Torres,
372 F.3d 1159, 1162 (10th Cir. 2004))).
ANALYSIS
In applying the Pioneer factors, I find that granting the instant Motion is warranted under
the circumstances. In so concluding, this court is mindful of Plaintiffs’ arguments regarding the
importance of the Scheduling Order and deadlines in pretrial proceedings, see Washington v.
Arapahoe Cty. Dep't of Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (“[A] Scheduling Order
is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel
without peril.”), but concludes nonetheless that the factors weigh in favor of Defendants in this
instance.
First, the factors of prejudice and the length of delay weigh in favor of Defendants.
Defendants filed the Motion to Exclude two days after the Rule 702 motion deadline. While this
court recognizes the frustration on the part of Plaintiffs, the two-day delay in filing the Motion to
Exclude will not impact judicial proceedings, as the Markman Order has yet to be entered and
this matter is not yet set for trial. 3 Next, with respect to the third Pioneer factor, it is clear that
the delay was in the control of Defendants. Therefore, this factor weighs in favor of Plaintiffs.
However, with respect to the last factor, it does not appear Defendants acted willfully or in bad
faith in missing the deadline at issue.
administrative error.

Instead, it appears that the delay arose from an

In defining excusable neglect, the Pioneer court concluded that such

neglect was not limited to actions out of the control of a party or its counsel. Pioneer Inv. Servs.

3

This court is also mindful that the current deadline to file dispositive motions is December 29,
2017. See [#109]. Currently, neither Party has moved to extend that deadline. Should the
Parties desire any extension they may do so through a formal motion, and are reminded of Judge
Moore’s Civil Practice Standards limiting the Parties to “filing a single motion for summary
judgment[.]” RM Civ. Practice Standards § IV.M.3.a.
6

Co., 507 U.S. at 392. And while this court is troubled by the dismissive approach taken by
Defendants’ counsel in moving for an extension of time, I conclude that substantive adjudication
of the Motion to Exclude, despite its untimeliness, is more appropriate given the court’s
gatekeeping responsibilities to ensure that expert testimony proffered at trial is reliable and
relevant so as to avoid misleading or confusing the jury on material issues. 4
CONCLUSION
For the reasons set forth in this Order, IT IS ORDERED that:
(1)

Defendants’ Motion for Two-Day Extension of Time [#129] is GRANTED; and

(2)

Plaintiffs shall FILE a Response to the Motion to Exclude Testimony of Mark

Pedigo no later than January 8, 2018.

DATED: December 21, 2017

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

4

In so ruling, this court in no way passes on the substantive arguments regarding the merits of
the Motion to Exclude offered by Defendants in their Reply.
7