Robles-Burris v. Barber
ORDER by Magistrate Judge Nina Y. Wang on 11/30/2017. Defendant John Barber's Request for Enlargement of Time to Obtain Deposition of Plaintiff Beth Robles-Burris 26 is GRANTED, consistent with the directions herein. (nywlc2, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02503-NYW
Individually and as the Surviving Spouse of DAVID BURRIS, Deceased,
Magistrate Judge Nina Y. Wang
This matter is before the court on Defendant John Barber’s Request for Enlargement of
Time to Obtain Deposition of Plaintiff Beth Robles-Burris (“Motion to Take Plaintiff’s
Deposition Out of Time”) [#26, filed November 20, 2017], which is before the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated November 28,
2016 [#10]. The court has reviewed the Motion and Response [#30], and heard oral argument of
the Parties during a Status Conference held on November 28, 2017. [#31]. For the reasons
stated herein, the Motion to Take Plaintiff’s Deposition Out of Time is GRANTED.
This action arises from a motor vehicle collision that occurred in Fremont County,
Colorado on July 30, 2016, involving Plaintiff Beth Robles-Burris (“Plaintiff” or “Ms. RoblesBurris”); her husband, David Burris (“Mr. Burris”); and Defendant John Barber (“Defendant” or
“Mr. Barber”). [#1 at ¶ 4]. That day, Defendant was driving eastbound on Colorado State
Highway 50 when he crossed the center line, colliding head on with the westbound vehicle
occupied by Mr. and Ms. Robles-Burris. [Id. at ¶¶ 11–16]. The collision resulted in the death of
Mr. Burris, and significant injury to Ms. Robles-Burris. [Id. at ¶¶ 35, 38, 39]. Plaintiff initiated
this action on October 7, 2016, asserting claims for negligence and negligence per se against Mr.
Barber and seeking economic and non-economic damages. See generally [#1].
The court held a Scheduling Conference in this matter on December 5, 2016, and entered
a Scheduling Order. [#11; #12]. During the Scheduling Conference, the court discussed with the
Parties the need to account for the criminal prosecution of Defendant arising from the collision
given the Fifth Amendment implications to any testimony by Mr. Barber, and the court ordered
the Parties to submit a Joint Status Report no later than February 16, 2017, to discuss the status
of the criminal action against Defendant; the amendment of the Complaint to seek punitive
damages; and the progress of discovery and the Parties’ ability to truncate discovery. [#12 at
10]. The court set a fact discovery deadline of August 1, 2017 and a dispositive motions
deadline of September 1, 2017. [Id. at 7, 8].
The Parties filed a Status Report notifying the court that Defendant had not yet proceeded
to trial and representing that they would file an updated Status Report with the court once the
criminal case concluded. [#15]. On June 14, 2017, the Parties filed a second Status Report
indicating that Defendant’s criminal case had concluded and “discovery can now commence in
this case.” [#20]. The court then set a Status Conference to discuss scheduling and discovery,
which was ultimately reset to July 21, 2017, upon the Parties’ Motion. [#21; #22; #23]. During
July 21, 2017 Status Conference, the court amended the deadlines set by the original Scheduling
Order with October 1, 2017 as the deadline for fact discovery; December 1, 2017 as the deadline
for expert discovery; October 15, 2017 as the deadline for dispositive motions; December 17,
2017 as the deadline for Rule 702 Motions; October 15, 2017 as the deadline for the designation
of affirmative experts; and November 15, 2017 as the deadline for the designation of rebuttal
Between July 21 and November 20, 2017, there is no record of contact by the Parties to
the court to seek any extension, or to apprise the court of any circumstances that could affect the
Parties’ ability or willingness to comply with the deadlines set in the July 21 Status Conference.
Defendant filed this instant Motion to Take Plaintiff’s Deposition Out of Time [#26], along with
two other motions for an extension to the rebuttal expert deadline and to reset the Final Pretrial
Conference, respectively [#27; #28], on November 20, 2017—more than two months after the
close of fact discovery. Defendant argues that it deferred the deposition of Ms. Robles-Burris
out of consideration for her mental and physical condition, in light of his good faith belief that
the matter would settle. [#26]. Plaintiff objects to her deposition being taken out of time, and
argues that the justification provided by Defendant, i.e., that the Parties only recently realized the
matter would not settle, was inaccurate. [#30]. During the November 28 Status Conference,
Plaintiff’s counsel further argued that he had relied upon the deadlines as set by the court to
advise his client that discovery had closed and, therefore, she did not have to have her deposition
taken, which is particularly important because Ms. Robles-Burris has suffered a traumatic brain
injury as a result of the underlying automobile collision. [#31].
Neither Party discusses the appropriate legal standard by which the court should consider
Plaintiff’s request, but as discussed during the Status Conference, Rule 6(b) of the Federal Rules
of Civil Procedure apply when a party seeks an extension of time upon a motion made after the
expiration of the deadline. 1 Fed. R. Civ. P. 6(b)(1)(B). That 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. The court also considers the factors
delineated by the Tenth Circuit in Smith v. United States in determining whether to exercise its
sound discretion to reopen discovery: (1) whether trial is imminent; (2) whether the request is
opposed; (3) whether the non-moving party would be prejudiced; (4) whether the moving party
was diligent in obtaining discovery within the guidelines established by the court; (5) the
foreseeability of the need for additional discovery in light of the time allowed for discovery by
Modifications to Scheduling Orders are also considered under Rule 16(b)(4) of the Federal
Rules of Civil Procedure, which provides that a schedule may only be modified for good cause
and with the judge’s consent. Fed. R. Civ. P. 16(b)(4). 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 has clearly expired
with no action by the moving party.
the trial court; and (6) the likelihood that the discovery will lead to relevant evidence. 834 F.2d
166, 169 (10th Cir. 1987).
In applying these standards, this court finds that Defendant has established excusable
neglect to justify the deposition of Ms. Robles-Burris out of time. In considering whether there
is prejudice to her, this court notes that while the deposition may be undesirable and even
unpleasant, it is not prejudicial in a legal sense. Ms. Robles-Burris availed herself of this court’s
jurisdiction and should reasonably expect that Defendant would choose to depose her. See Fed.
R. Civ. P. 30. Indeed, as pointed out by Mr. Barber, Defendant identified Ms. Robles-Burris as
an expected deponent in the original Scheduling Order [#12 at 10] and the subsequent proposed
Amended Scheduling Order [#24 at 10]. In addition, while the court is troubled by the over two
month delay from both the expiration of the discovery deadline as well as the month delay
between the October 25 settlement conference and the filing of this instant Motion, there has
been no trial set in this matter, and the court recently re-set the Final Pretrial Conference in this
matter to February 13, 2018, upon motion of the Parties. [#28; #31]. And though the court
would have greatly preferred a motion made prior to the expiration of the deadline, the court
further notes that Defendant’s stated reason, i.e., that he deferred taking the deposition of Ms.
Robles-Burris to spare her unnecessary burden if the case were to settle, is reasonable. Finally,
the court notes that there is a significant likelihood that Ms. Robles-Burris’s deposition will yield
relevant, admissible evidence regarding both liability and damages.
Nevertheless, this court finds that it is appropriate to set some limits pursuant to Rule
26(c) of the Federal Rules of Civil Procedure to protect Plaintiff from undue burden:
The deposition will occur at a location convenient to Plaintiff, consistent with the
general principle that the place of deposition is a location in the vicinity of the residence of the
deponent, even if the deponent is a party, see Metrex Research Corp. v. United States, 151
F.R.D. 122, 125 (D. Colo. 1993);
The Parties will meet and confer regarding how Ms. Robles-Burris’s deposition
will be conducted to accommodate any physical or mental limitations and set an informal
discovery dispute conference to be conducted by the court no later than December 8, 2017, to
resolve any disputes;
The deposition of Ms. Robles-Burris will be conducted no later than December
29, 2017, and no further extensions will be permitted absent extraordinary circumstances;
Discovery remains CLOSED for all purposes other than the deposition of Ms.
The deadlines for rebuttal expert designation and the Final Pretrial Conference
REMAIN SET, and the Parties are advised that the forthcoming deposition of Ms. RoblesBurris is insufficient good cause to justify the extension of any upcoming deadline or court
For the reasons set forth in this Order and as limited by the instructions herein, IT IS
Defendant John Barber’s Request for Enlargement of Time to Obtain Deposition
of Plaintiff Beth Robles-Burris [#26] is GRANTED.
DATED: November 30, 2017
BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge
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