API Americas Inc. v. Miller

Filing 45

MEMORANDUM AND ORDER denying 42 Motion for Extension of Time to Submit Discovery. Signed by Magistrate Judge Kenneth G. Gale on 9/24/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
API AMERICAS, INC.,

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Plaintiff,
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v.
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PAUL W. MILLER,
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Defendant. )
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_______________________________)

Case No.: 17-2617-HLT-KGG

MEMORANDUM & ORDER ON
MOTION FOR EXTENSION OF TIME TO SUBMIT DISCOVERY
Defendant Paul W. Miller has filed a motion seeking leave to submit
discovery requests past the discovery deadline contained in the Scheduling Order.
(Doc. 42.) Having reviewed the parties’ submissions, the Court DENIES
Defendant’s motion.
BACKGROUND
This case was brought against Defendant by his former employer alleging, in
part, breach of contract, violation of relevant trade secret acts, tortious interference,
and conversion. (See generally Doc. 1.) The Scheduling Order lists a fact
discovery deadline of April 23, 2018. (Doc. 25, at 5.) Defendant contends that his
prior counsel, Curtis Holmes, who has since had his license suspended by the
Supreme Court of Kansas, failed to submit written discovery requests to Plaintiff
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and did not depose Plaintiff’s representative. (Doc. 42, at 1.) Holmes’s license
was suspended on May 4, 2018, and he withdrew as counsel on May 18, 2018.
(Id.) Defendant’s current counsel entered an appearance a week later, on May 25,
2018. (Doc. 38.) The present motion was not filed until four months later.
ANALYSIS
Defendant brings the present motion pursuant to Fed.R.Civ.P. 6(b)(1)(B) and
D. Kan. Rule 6.1, which allows a party to perform an act after the expiration of the
relevant deadline upon a showing of “excusable neglect.” Because Defendant is
attempting to extend an expired deadline from the Scheduling Order, the Court
finds that Defendant’s argument should be analyzed under the standards of
Fed.R.Civ.P. 16(b)(4), which governs modifications of the Scheduling Order. Rule
16(b)(4) mandates that “[a] schedule may be modified only for good cause and
with the judge’s consent.”
To establish ‘good cause’ the moving party must show
that the scheduling order’s deadline could not have been
met with diligence. Parker v. Central Kansas Medical
Center, 178 F.Supp.2d 1205, 1210 (D.Kan.2001);
Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993).
‘This rule gives trial courts ‘wide latitude in entering
scheduling orders,’ and modifications to such orders are
reviewed for abuse of discretion.’ In re Daviscourt, 353
B.R. 674, (B.A.P. 10th Cir.2006) (citing Burks v. Okla.
Publ’g Co., 81 F.3d 975, 978-79 (10th Cir.1996)).
Grieg v. Botros, No. 08-1181-EFM-KGG, 2010 WL 3270102, at *3 (D.Kan. Aug.
12, 2010). It is well-established in this District that motions to modify a
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scheduling order focus “on the diligence of the party seeking to modify the
scheduling order.” Id. (citing Leviton Mfg. Co., Inc. v. Nicor, Inc., 245 F.R.D.
524, 528 (D.N.M.2007) (internal citations omitted)).
As stated above, Defendant’s prior counsel, whose license was suspended by
the Supreme Court of Kansas, failed to submit written discovery requests to
Plaintiff and did not depose Plaintiff’s representative. (Doc. 42, at 1.) Defendant’s
current counsel, however, entered an appearance on May 25, 2018 (Doc. 38), four
months before the present motion was filed (Doc. 42).
There is no valid justification for Defendant waiting until now to file the
present motion. The Court acknowledges Defendant’s issues with its prior
attorney. Even so, as Plaintiff states, Defendant’s motion “entirely fails to allege
any basis for ‘excusable neglect’ for the critical four-month period from May 26,
2018 [since current defense counsel entered an appearance] to September 17, 2018
[when the present motion was filed].” (Doc. 44 (emphasis in original).)
The Court thus finds that Defendant has failed to establish justification to
modify the expired discovery deadline in the Scheduling Order. As such,
Defendant’s motion (Doc. 42) is DENIED.

IT IS THEREFORE ORDERED that Defendant’s Motion for Extension of
Time to Submit Discovery (Doc. 42) be DENIED as more fully discussed above.
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IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 24th day of September, 2018.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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