Auto Club Family Insurance Company v. Allgood et al
Filing
34
MEMORANDUM AND ORDER denying 30 Motion for Leave to Take Depositions After the Deadline for Discovery. See Memorandum and Order for additional details. Signed by Magistrate Judge Gerald L. Rushfelt on 12/8/2011. (bw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AUTO CLUB FAMILY INSURANCE
COMPANY,
Plaintiff,
v.
ELAINE ALLGOOD, et al.,
Defendants.
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)
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CIVIL ACTION
No: 11-2079-GLR
MEMORANDUM AND ORDER
Before the Court is a Motion for Leave to Take Depositions After the Deadline for Discovery
(ECF No. 30), filed by Plaintiff Auto Club Family Insurance Company on November 28, 2011.
Plaintiff seeks leave to depose Defendants Elaine Allgood and Jerri Allgood outside the discovery
deadline. Defendants oppose the motion.1 Plaintiff has filed a reply brief.2 The motion is ripe for
ruling. For the reasons stated herein, the Court denies the motion.
I.
Background
In August 2009, Plaintiff issued an insurance policy for property owned by Defendants. In
November 2009, two fires damaged the property. On May 26, 2010, Plaintiff examined Defendants
under oath.3 On February 10, 2011, Plaintiff filed this action seeking a declaration that Defendants
are not entitled to payment under the insurance policy for their loss due to their intentional acts
and/or misrepresentations.4 The next month, Defendants filed an answer and asserted a counterclaim
for breach of contract.5 In initial disclosures dated May 27, 2011, Defendants identified themselves
1
See Mem. Opp’n (ECF No. 32).
2
See Reply (ECF No. 33).
3
See Exs. 1 and 2 attached to Mem. Opp’n Mot. Summ. J. (ECF No. 31-1 and 31-2).
4
See Compl. (ECF No. 1).
5
See Answer & Counterclaim (ECF No. 5).
and Kent Gilmore as witnesses who may have pertinent information.6 On June 2, 2011, the Court
entered the governing scheduling order in this case – setting a deadline of October 31, 2011 for
completeion of discovery and May 8, 2012 for trial.7 On August 17, 2011, Plaintiff deposed
Gilmore.8
Defendants moved for summary judgment on October 27, 2011.9 Plaintiff then filed a
motion to amend the scheduling order, including extending the October 31, 2011 discovery
deadline.10 Plaintiff did not suggest any need for depositions against the Defendants’ dispositive
motion. It merely stated that it “may also seek additional discovery by way of deposition.”11 The
Court denied that motion for failure to show good cause.12 Plaintiff then filed the motion now before
the Court.
II.
Applicable Law
Plaintiff invokes no particular rule or authority for its motion.13 It does attempt to show good
cause for the requested leave.14 Although stating that it “does not seek to change any of the
6
See Mem. Opp’n Mot. Am. Scheduling Order (ECF No. 26) at 1-2 (incorporated by
reference into Mem. Opp’n).
7
See Scheduling Order (ECF No. 12).
8
See Tr. Dep. Gilmore, attached as Ex. 3 to Mem. Opp’n Mot. Summ. J. (ECF No. 31-3).
9
See Mot. Summ. J. (ECF No. 24).
10
See Mot. Am. Scheduling Order (ECF No. 25).
11
Id. at 1-2.
12
See Order (ECF No. 29).
13
See generally Mot. at 1-3.
14
See id. at 2-3.
2
deadlines set forth in the Court’s Scheduling Order,”15 it nevertheless seeks to extend or re-open the
discovery deadline to allow the requested depositions. Because the discovery deadline expired
before Plaintiff filed its motion, it must show excusable neglect to obtain an extension of the
deadline.16 Rule 16(b)(4), furthermore, requires a showing of good cause to modify the scheduling
order.
“Excusable neglect” is an “elastic concept”, which “is not limited strictly to omissions
caused by circumstances beyond the control of the movant.”17 The concept is “primarily an
equitable one.”18 Whether neglect will be considered “excusable” is an equitable determination that
requires consideration of “all relevant circumstances surrounding the party’s omission.”19 Relevant
circumstances include “the danger of prejudice” to the opposing party, “the length of delay and its
potential impact on judicial proceedings, the reason for the delay, including whether it was within
the reasonable control of the movant, and whether the movant acted in good faith.”20
Under Rule 16(b)(4), a court’s scheduling order may only be modified “for good cause and
with the judge’s consent.” Without a showing of good cause for an untimely deposition, the
15
Id. at 3.
16
See Fed. R. Civ. P. 6(b). Likewise, D. Kan. Rule 6.1(a) provides that “[a]bsent a showing
of excusable neglect, the court will not grant extensions requested after the specified time expires.”
17
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 391 (1993).
18
Outley v. Coca Cola Enters., Inc., No. 97-2056-GTV, 1998 WL 118070, at *2 (D. Kan.
Mar. 11, 1998).
19
Pioneer Inv. Servs. Co., 507 U.S. at 395.
20
Id.
3
proposed deponent is generally entitled to protection against the deposition.21 “Good cause, within
the meaning of Fed. R. Civ. P. 16(b), primarily considers the diligence of the party seeking to alter
the existing schedule.”22 To establish good cause under Rule 16(b), the moving party must show
that “it could not have reasonably met the scheduled deadline[]” even had it acted with due
diligence.23 This compels more than showing “excusable neglect, as to which simple inadvertence
or mistake of counsel or ignorance of the rules usually does not suffice.”24 Neither an absence of
prejudice nor carelessness provides a basis for finding good cause.25 The movant “is normally
expected to show good faith on its part and some reasonable basis for not meeting the deadline.”26
Whether a party has established good cause to modify a deadline under Rule 16(b)(4) lies within the
court’s discretion.27
III.
Analysis
To show good cause for deposing Defendants out of time, Plaintiff states that the prior sworn
examinations are insufficient, because at the time of the examinations (1) no litigation had commenced; (2) no counterclaim required deposition; (3) it had no phone records of Defendants; and
21
Sithon Maritime Co. v. Holiday Mansion, No. 96-2262-KHV, 1999 WL 66216, at *1 (D.
Kan. Feb. 8, 1999).
22
Id. (quoting Deghand v. Wal–Mart Stores, Inc., 904 F. Supp. 1218, 1221 (D. Kan. 1995)).
23
Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 301 (D. Kan. 1996) (quoting
Deghand, 904 F. Supp. at 1221).
24
Id. (quoting Broitman v. Kirkland (In re Kirkland ), 86 F.3d 172, 175 (10th Cir. 1996)).
25
Starlight Int’l, Inc. v. Herlihy, 181 F.R.D. 494, 497 (D. Kan. 1998).
26
Deghand, 904 F. Supp. at 1221.
27
See Strope v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009).
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(4) Gilmore would not cooperate.28 It further states that (5) it wants to use recently provided medical
records of Jerri Allgood at the requested depositions, (6) it has still not received Gilmore’s phone
records, and (7) it wants to cross-examine Defendants about testimony provided in their affidavits
submitted with the motion for summary judgment.29 Lastly, it argues that the late depositions will
cause no undue prejudice because the trial date is not until May 2012.30
In this case, there is no apparent danger of prejudice to Defendants should the Court grant
the requested leave, fairly minimal delay in seeking leave, and limited, if any, potential impact on
judicial proceedings. Nothing before the Court, furthermore, suggests that Plaintiff has acted in bad
faith. While those matters may favor finding excusable neglect, Plaintiff does not even argue that
its delay or inaction is excusable. As discussed more fully below, moreover, the reasons for the
delay in conjunction with other relevant circumstances cut against finding excusable neglect. To
show good cause, moreover, requires more than showing excusable neglect.
Plaintiff’s first four stated reasons provide no excuse for not deposing Defendants within the
time allotted for discovery. Plaintiff commenced this action more than eight months before the
deadline passed. Just over a month later, Defendants filed their answer and counterclaim.
Defendants have stated without opposition that Plaintiff had their phone records “long before this
litigation was initiated.”31 No later than May 2011, Plaintiff knew that Gilmore may have relevant
information. In August 2011, it deposed him. By that time, Plaintiff had sufficient information
28
Mot. at 2.
29
Id. at 2-3.
30
Id. at 3.
31
See Mem. Opp’n Mot. Leave at 2 (making statement); Reply at 1-3 (showing no
opposition).
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about its complaint, Defendant’s counterclaim and phone records, and Gilmore’s testimony to
determine whether depositions of Defendants were warranted. At that point – if not before – it was
entirely within the control of Plaintiff to pursue depositions of Defendants. Its four proffered
reasons do not meet the burden to show that with diligence it could not have reasonably met the
deadline. To the contrary, the stated reasons suggest that Plaintiff had ample time to depose Defendants before the deadline.
Plaintiff also relies on recently received medical records to excuse its failure to depose
Defendants before the discovery deadline. Plaintiff did not seek authorization for the records,
however, until October 17, 2011. Defendants executed and returned the authorization to Plaintiff
within a week. It states it recognized a need for the medical records after deposing Gilmore.32 Yet
it waited two months to seek an authorization. It had sufficient information to pursue the medical
records earlier. It has provided no sufficient excuse for not doing so. The alleged lack of medical
records create no reasonable excuse for delaying the depositions beyond the discovery deadline.
Plaintiff identifies only two reasons that were arguably outside its control – the inability to
obtain Gilmore’s phone records and the submission of summary judgment affidavits. But it does
not explain how or why these documents warrant the late deposition of Defendants or why Plaintiff
could not have timely moved to extend the deadline. Although it quickly sought such an extension
after Defendants moved for summary judgment, it did not mention the affidavits or phone records
as grounds for its motion to extend. Its response, moreover, says nothing about any need for further
discovery to support its opposition to the dispositive motion.33 At this point, it is simply speculative
32
See id. at 2.
33
See generally, Mem. Opp’n Mot. Summ. J. (ECF No. 31). Rule 56(d) (formerly 56(f) of
the Federal Rules of Civil Procedure provides a mechanism for opposing summary judgment when
additional discovery is necessary. See Danaher v. Wild Oats Markets, Inc., 779 F. Supp. 2d 1198,
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that the phone records provide any basis to warrant testimony about them from Defendants. As for
the submitted affidavits, Plaintiff identifies nothing from their content that would warrant a late
deposition. Even if these matters were outside Plaintiff’s control, other relevant circumstances make
them an insufficient excuse for the failure to depose Defendants before the discovery deadline
expired or to seek a timely extension on those grounds within the deadline.
The Court finds no reasonable excuse for having delayed the requested depositions beyond
the discovery deadline set by the Scheduling Order. Plaintiff argues an absence of prejudice to
Defendants. But that is just one factor to consider for excusable neglect, and a lack of prejudice
does not by itself equate with good cause. That trial is five months away is likewise not determinative. Considering all relevant circumstances, the Court does not find excusable neglect to
justify extending the discovery period for the requested depositions. And Plaintiff has simply not
demonstrated good cause to modify the scheduling order.34 The Court, therefore, denies the Motion
for Leave to Take Depositions After the Deadline for Discovery (ECF No. 30).
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 8th day of December, 2011.
s/Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate Judge
1206 (D. Kan. 2011).
34
The Court notes that Fed. R. Civ. P. 26(b)(2)(C) requires it to limit otherwise permissible
discovery when “the party seeking the discovery has had ample opportunity to obtain the information by discovery in the action.” This rule also supports denying the motion.
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