Stonebarger et al v. Union Pacific Corporation

Filing 138

MEMORANDUM AND ORDER denying 115 Plaintiffs' Motion for Leave to Conduct Additional Discovery; denying 131 Defendant's Motion for Leave to File Sur-reply. Signed by Magistrate Judge Teresa J. James on 11/6/2014. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELISSA STONEBARGER,
INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE
OF VERONICA HOGLE,
et al.,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
UNION PACIFIC CORPORATION,
et al.,
Defendants.

Case No. 13-cv-2137-JAR

ORDER
This matter is before the Court on Plaintiffs’ Motion for Leave to Conduct Additional
Discovery (ECF No. 115). In their motion, Plaintiffs seek leave to conduct certain depositions
beyond the close of discovery, which occurred on July 7, 2014. Defendant Union Pacific
Railroad Company (“UP”) opposes the motion. Upon consideration of the matter, the Court
determines that Plaintiffs’ motion should be denied.
Background
On July 15, 2013, the Court entered the original Scheduling Order in this case, with a
discovery deadline of March 31, 2014.1 On November 13, 2013, with Defendants’ consent,
Plaintiffs moved to amend the Scheduling Order.2 The Court entered an Amended Scheduling
Order which extended the discovery deadline until April 30, 2014.3 The parties moved once
1

ECF No. 11.

2

ECF No. 21. As of that date, there were two Defendants in this case. Defendant Union Pacific Corporation
was dismissed on August 19, 2014 (ECF No. 98).
3

ECF No. 23.

again to amend the Scheduling Order,4 and on December 23, 2013, the Court entered a third
Amended Scheduling Order which calls for discovery to close on July 7, 2014.5
On October 14, 2014, the Court entered the Pretrial Order in this case.6 The Pretrial Order
recites the then-expired July 7, 2014 discovery deadline and notes the parties’ agreement that
discovery was complete, with the exception of eight depositions that the parties agreed to
conduct before December 31, 2014.7 As for any additional discovery, the Pretrial Order notes
that (1) unopposed discovery may continue if all parties agree to it, (2) the Court will not resolve
disputes related to any such discovery, (3) discovery will not cause delay in dispositive motion
briefing or ruling or other pretrial preparations, and (4) Plaintiffs wish to conduct additional
discovery while Defendant opposes their effort.8
In their motion, Plaintiffs now seek leave to conduct the additional discovery they referred to
during the Pretrial Conference. Specifically, Plaintiffs wish to depose individuals who were
involved in what they describe as a substantially similar train vs. vehicle incident at the same
crossing in May of 2011, as well as a corporate representative from Union Pacific to “discuss
policies and procedures for railway safety at grade crossings.”9 Defendant opposes both
requests.
Legal Standards

4

ECF No. 29. Plaintiff included in their Motion two other categories of proposed deponents, but in their Reply
brief they abandoned those requests. See ECF No. 125 at 2-3.
5

ECF No. 31.

6

ECF No. 120.

7

Id. at 14.

8

Id. at 15.

9

See ECF No. 116 at 3.

2

Plaintiffs offer nothing more than a citation to D. Kan. Rule 6.1(a), which addresses
extensions of time to perform an act, to support their effort to depose non-party witnesses and a
corporate designee pursuant to Fed. R. Civ. P. 30(b)(6). Plaintiffs do not discuss the application
of Rule 6.1(a) to their motion or state the legal standard the Court is to apply. Defendant points
out, however, that the rule requires a party to file a motion “before the specified time expires.
Absent a showing of excusable neglect, the court will not grant extensions requested after the
specified time expires.”10 Defendant sets forth factors it asserts are relevant to the Court’s
determination of excusable neglect and argues that Plaintiffs have not satisfied them. Defendant
also argues against the specific depositions Plaintiffs propose.
While Local Rule 6.1(a) arguably applies to Plaintiffs’ motion because it addresses requests
for extensions of time, the Court concludes that Plaintiffs’ motion is more appropriately
governed by Fed. R. Civ. P. 16(b)(4).11 Rule 16(b) sets forth requirements relating to Scheduling
Orders, including a mandatory limit on time for the parties to conduct discovery.12 Rule 16(b)
also contemplates amendments to Scheduling Orders, as it specifies that “[a] schedule may be
modified only for good cause and with the judge’s consent.”13 Plaintiffs’ motion seeks relief
which would result in amending a deadline in the Scheduling Order entered in this case, and thus
Rule 16(b) is the most closely applicable authority. Accordingly, the Court will apply a good
cause standard to Plaintiffs’ motion.
10

D. Kan. R. 6.1(a). See also Fed. R. Civ. P. 6(b)(1)(B) (excusable neglect required for motion made after time
has expired).
11

Magistrate Judge Donald W. Bostwick reached this same conclusion in Price v. Brian, Case No. 07-1046JTM (D. Kan. February 12, 2010), where Plaintiff moved to reopen discovery after the discovery cutoff set in the
Scheduling Order.
12

See Fed. R. Civ. P. 16(b)(3)(A) (“The scheduling order must limit the time to join other parties, amend the
pleadings, [and] complete discovery.”).
13

Fed. R. Civ. P. 16(b)(4).

3

“The ‘good cause’ standard primarily considers the diligence of the party seeking
the amendment.” . . . The party seeking an extension must show that despite due
diligence it could not have reasonably met the scheduled deadlines. “Carelessness
is not compatible with a finding of diligence and offers no reason for a grant of
relief. The lack of prejudice to the nonmovant does not show “good cause.” The
party seeking an extension is normally expected to show good faith on its part and
some reasonable basis for not meeting the deadlines.14
Analysis
Plaintiffs offer little that could be construed as a showing of good cause. In their motion, the
closest they come to addressing the issue is to state that “[i]t is impractical and prejudicial upon
Plaintiffs’ case to not allow additional discovery which may directly impact the outcome of this
case.”15 In their reply, Plaintiffs do refer to “excusable neglect” as they address Defendant’s
assertion that Plaintiffs did not show excusable neglect for their failure to timely notice the
depositions. With respect to the individuals involved in the 2011 collision, Plaintiffs contend
that they have just reached them in spite of trying to contact them during the discovery period.16
As for a corporate designee, Plaintiffs state that they did not notice that deposition during the
discovery period because they were awaiting Defendant’s production of accident investigation
manuals, which have been the subject of numerous motions as Defendant resisted their
production. Plaintiffs assert that it would have been senseless to take a corporate
representative’s deposition without the proper documents.17
Plaintiffs have not satisfied their burden of showing good cause to belatedly depose the
individuals involved in the accident. Clearly Plaintiffs were aware of the identities of the

14

Deghand v. WalMart Stores, Inc., 904 F. Supp. 1218, 1221 (D. Kan. 1995) (internal citations omitted).

15

ECF No. 116 at 3.

16

See ECF No. 125 at 4.

17

Id. at 3-4.

4

individuals involved in the earlier accident, as they admit efforts to contact them during the
discovery period. Plaintiffs apparently did not serve subpoenas on any of these individuals, nor
did they provide notices of deposition which at least would have established their desire to take
the depositions. Had Plaintiffs taken some timely action to notify Defendant that they intended
to depose these individuals, the parties could have discussed those depositions with the Court
during the Pretrial Conference. Significantly, the Pretrial Order includes as permissible
outstanding discovery eight depositions that the parties had agreed to take by the end of
December. As it stands, Plaintiffs’ silence does not constitute good cause.
Likewise, Plaintiffs fail to show good cause why they made no effort to depose a designee of
Defendant within the discovery period. While the Court understands that a Rule 30(b)(6)
deposition taken before July 7, 2014 would not have produced all of the documents and
testimony that Plaintiffs seek because Defendant had yet to produce certain documents, that does
not allow Plaintiffs to ignore the discovery deadline. Plaintiffs concede that they did not notify
Defendant – by way of either notice of deposition or informal notice – of their intent to conduct
such deposition.18 Moreover, Plaintiffs have yet to “describe with particularity the matters for
examination” as required by Rule 30(b)(6), leaving Defendant uncertain as to who it is being
asked to produce. Plaintiffs should have provided Defendant with notice of deposition, thereby
preserving their right to examine Union Pacific as to specific matters. The Court finds wholly
insufficient Plaintiffs’ explanation for their failure to mention the deposition until three months
after discovery closed and after the final Pretrial Conference has been conducted. 19

18

See ECF No. 125 at 3 (“Plaintiffs have not asked for this deposition yet solely because of UP’s objections and
obstruction to producing certain information.”).
19

The Court notes that it would reach the same conclusion under an excusable neglect standard, which
considers the following factors: (1) danger of prejudice to the non-moving party; (2) length of delay and its

5

For the foregoing reasons, the Court denies Plaintiffs’ motion.
Defendant has filed a motion seeking leave to file a sur-reply with respect to Plaintiffs’
motion.20 Because the Court has had no need to consider Defendant’s proposed sur-reply, the
Court denies the motion.
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to Conduct
Additional Discovery (ECF No. 115) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Leave to File Sur-Reply to
Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ Motion for Leave to Conduct Additional
Discovery Beyond Discovery Deadline (ECF No. 131) is DENIED.
IT IS SO ORDERED.
Dated this 6th day of November, 2014 at Kansas City, Kansas.

s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

potential impact on judicial proceedings; (3) reason for the delay, including whether it was within the reasonable
control of the movant; and (4) whether the moving party’s conduct was in good faith. Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 385. Excusable neglect is an equitable standard, and the Court has
discretion in weighing these factors. Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004). The Court finds that
Defendant would be prejudiced by granting this motion when discovery has been closed since July and it had no
notice that Plaintiffs were contemplating these depositions. The delay in providing notice and preserving the right to
conduct this discovery was completely within Plaintiffs’ control. The Court does not question Plaintiffs’ good faith,
but the other factors preclude a finding of excusable neglect.
20

ECF No. 131.

6