Barnes v. Wal Mart Stores Inc
Filing
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OPINION AND ORDER DENYING 39 MOTION for Extension of Time to Complete Discovery filed by Kenneth D Barnes. Signed by Magistrate Judge Roger B Cosbey on 6/30/2014. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KENNETH BARNES,
Plaintiff,
v.
WAL-MART STORES EAST, L.P.,
Defendant.
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Cause No. 1:12-CV-326
OPINION AND ORDER
This matter is before the Court on Plaintiff Kenneth Barnes’s motion for an extension of
the discovery deadline,1 arguing that the deadline should be extended to July 29, 2014, because a
discovery issue became apparent only after discovery had closed. (Docket # 39.) Defendant
Wal-Mart Stores East, L.P., opposes the extension, arguing that Barnes’s motion is untimely and
that he has failed to show good cause to reopen discovery. (Docket # 40.) Barnes has not filed a
reply, and the time to do so has now passed. Because Barnes’s motion is untimely, and he has
failed to show good cause and excusable neglect, his motion will be DENIED.
A. Factual and Procedural Background
Barnes, initially proceeding pro se, filed this employment discrimination case on
September 20, 2012. (Docket # 1.) Some ten months later, on July 2, 2013, Barnes, now
represented by counsel, filed an amended complaint, clarifying his claims and the identity of the
Defendant. (Docket # 25.) Of relevance here, the amended complaint alleges that Barnes’s coworker Eugene Scharpenberg received more favorable treatment. (Am. Compl. ¶¶ 11-14.)
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Although Barnes’s motion is entitled “Plaintiff’s Motion for 45-Day Extension of Discovery Deadline,”
he is actually seeking a ninety day extension, that is, until July 29, 2014. (Docket # 39.)
On August 8, 2013, the Court adopted the report of the parties’ planning meeting–setting
April 30, 2014, as the discovery deadline–and made it an Order of the Court. (Docket # 38.)
Wal-Mart served its responses to Barnes’s first discovery requests on February 3, 2014.
(Dft.’s Resp. Ex. A ¶ 2.) These discovery requests sought information on Scharpenberg, but
Wal-Mart objected to producing such information on the grounds that this claim was timebarred. (Dft.’s Resp. Ex. A ¶¶ 3-4.) Barnes did not challenge this objection or indicate that WalMart’s discovery production was otherwise deficient. (Dft.’s Resp. Ex. A ¶ 5.)
On April 29, 2014, the Court granted Wal-Mart’s unopposed motion to extend the
discovery deadline for the limited purpose of deposing Barnes. (Docket # 36.) In its motion,
Wal-Mart explained that it had been unable to schedule Barnes’s deposition despite repeated
attempts over the previous two months. (Docket # 35.)
During Barnes’s May 29, 2014, deposition, Wal-Mart explored his claims regarding
Scharpenberg, and Barnes’s counsel inquired off the record on why Wal-Mart was inquiring into
Scharpenberg given its objection to producing any such documentation. (Dft.’s Resp. 3.) WalMart explained that it planned on “seek[ing] dismissal of these claims on both procedural and
substantive grounds.” (Dft.’s Resp. 3.) The following day, a month after the close of discovery,
Barnes filed the instant motion. (Docket # 39.)
B. Applicable Law
Under Federal Rule of Civil Procedure 16(b), “[a] schedule may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The good cause standard
focuses on the diligence of the party seeking the extension. Alioto v. Town of Lisbon, 651 F.3d
715, 720 (7th Cir. 2011); Smith v. Howe Military Sch., No. 3:96-CV-790RM, 1997 WL 662506,
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at *1 (N.D. Ind. Oct. 20, 1997). To demonstrate good cause, a party must show that despite its
diligence, the time table could not reasonably have been met. Smith, 1997 WL 662506, at *1.
Along with good cause, because Barnes’s motion to extend the discovery deadline was
untimely (filed a month after the deadline), he must also show “excusable neglect” under Federal
Rule of Civil Procedure 6(b). See Murphy v. Eddie Murphy Prods., Inc., 611 F.3d 322, 324 (7th
Cir. 2010) (“A motion filed before the deadline may be granted ‘for good cause’[;] a motion
made after the time has expired may be granted only if ‘the party failed to act because of
excusable neglect.’” Id. (quoting Fed. R. Civ. P. 6(b)(1)(A)-(B))).
Excusable neglect is “a somewhat elastic concept,” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship , 507 U.S. 380, 391 (1993), demanding an equitable determination that can
“encompass situations in which the failure to comply with a filing deadline is attributable to
negligence,” Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 355-56 (7th Cir. 1997) (quoting
Pioneer , 507 U.S. at 394); see also Commodity Futures Trading Comm’n v. Lake Shore Asset
Mgmt. Ltd., 646 F.3d 401, 404-05 (7th Cir. 2011).
C. Analysis
In an apparent effort to show good cause, Barnes sets forth two reasons why discovery
should be reopened: (1) Wal-Mart’s discovery questions regarding Scharpenberg are
incompatible with its previous discovery objection and; (2) certain questions during the
deposition inferred the existence of witnesses and documents that had not been previously
disclosed. Because neither argument addresses Barnes’s diligence, and the latter argument is
speculative, his explanations fall short of showing good cause.
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To begin with, Wal-Mart’s objection to discovery requests concerning Scharpenberg did
not render this subject off limits. To the contrary, Wal-Mart was entitled to explore the
allegations set forth in Barnes’s amended complaint, regardless of its discovery objections.
Moreover, Barnes makes no effort to show that, despite his diligence, he could not meet the
April 30, 2014, discovery deadline. See Lapsley v. Fries, No. 1:11-CV-99, 2012 WL 2721909, at
*3 (N.D. Ind. July 9, 2012). Indeed, Barnes does not explain why he failed to challenge WalMart’s objection concerning Scharpenberg. Accordingly, Barnes’s misplaced assumption that
Wal-Mart would not explore these allegations during his deposition fails to establish good cause
to reopen discovery.
Barnes’s second argument, that questions during his deposition revealed the existence of
undisclosed witnesses and documents, is similarly unpersuasive. As Wal-Mart points out in its
response brief, Barnes fails to provide any elaboration or insight on the names of the purportedly
undisclosed witnesses and what these secreted documents consist of. Barnes’s speculative and
unsupported conclusions that Wal-Mart failed to provide complete and accurate discovery fails
to satisfy the good cause standard. APC Filtration, Inc. v. Becker, No. 07-CV-1462, 2009 WL
187912, at *1 (N.D. Ill. Jan. 26, 2009) (finding that “Defendants’ unsupported speculation is not
a proper ground on which to reopen discovery”); see Lapsley, 2012 WL 2721909, at *3 (denying
motion to extend discovery deadline where plaintiff’s counsel failed to elaborate on the efforts it
took to conduct timely discovery); Lackey v. Biomet Inc., No. 1:09-CV-363, 2011 WL 672589,
at *3 (N.D. Ind. Feb. 17, 2011).
Considering Barnes’s thin and unsupported excuses, he has failed to show good cause or
excusable neglect for missing the April 30, 2014, discovery deadline. “[T]his Court takes
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seriously the scheduling orders it issues—and so should the litigants.” S.E.C. v. Lipson, No. 97
C 2661, 1999 WL 104357, at *2 (N.D. Ill. Feb. 24, 1999). “[A] scheduling order is not a
frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without
peril.” Id. (internal quotation marks and citation omitted); see Custom Foam Works, Inc. v.
Hydrotech Sys., Ltd., No. 09-cv-710-MJR, 2011 WL 2161106, at *3 (S.D. Ill. June 1, 2011)
(“[D]eadlines have meaning and consequences.”) (collecting cases). “One who decides to follow
a schedule of his own devising, for reasons of his own invention, has no legitimate complaint
when the tribunal adheres to the rules.” Vakharia v. Little Co. of Mary Hosp., No. 94 C 5599,
2002 WL 485362, at *5 (N.D. Ill. Mar. 29, 2002) (quoting White v. Bensten, 31 F.3d 474, 476
(7th Cir. 1994)).
D. Conclusion
For the foregoing reasons, Barnes’s motion for an extension of the discovery deadline
(Docket # 39) is DENIED.
SO ORDERED.
Entered this 30th day of June 2014.
s/Roger B. Cosbey
Magistrate Judge
United States District Court
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