Hale v. Emporia State University et al

Filing 82

ORDER denying 74 Defendants' Motion to Take Depositions Out of Time. Signed by Magistrate Judge Teresa J. James on 3/9/2018. (Mailed to pro se plaintiff by regular mail.) (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANGELICA HALE,
Plaintiff,
v.
EMPORIA STATE UNIVERSITY (ESU),
GWEN ALEXANDER, PH.D.,
DAVID CORDLE, PH.D.,
JACKIE VIETTI, PH.D.,
Defendants.

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Case No. 16-cv-4182-DDC

ORDER DENYING DEFENDANTS’ MOTION
TO TAKE DEPOSITIONS OUT OF TIME
This matter is before the Court on Defendants’ Motion to Take Depositions Out of Time
(ECF No. 74). Defendants request leave to take the deposition of Plaintiff and her husband, Dr.
Melvin Hale, after the January 31, 2018 discovery deadline. Plaintiff has filed her response (ECF
Nos. 79) stating she is agreeable to the motion if she is permitted to issue twelve requests for
admission, three requests for production, and three interrogatories to each Defendant. Defendants
have filed their Reply (ECF No. 81), objecting to Plaintiff’s request for leave to serve additional
written discovery requests.
Under Tenth Circuit law, the court should consider the following factors in deciding
whether discovery should be reopened:
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 the district court, and 6) the likelihood that the discovery will lead to

relevant evidence.1
Whether to extend or reopen discovery is committed to the sound discretion of the trial court.2
Because Defendants filed their motion after expiration of the discovery deadline, they
must also show excusable neglect to obtain an extension of the discovery deadline.3 “Excusable
neglect” is an “elastic concept,” which “is not limited strictly to omissions caused by
circumstances beyond the control of the movant.”4 The concept is “primarily an equitable one.”5
Whether neglect will be considered “excusable” is an equitable determination that requires
consideration of “all relevant circumstances surrounding the party’s omission.”6
The Court held the scheduling conference in this case on August 28, 2017 and entered the
Scheduling Order (ECF No. 38) on September 8, 2017. The Scheduling Order required that all
discovery be commenced or served in time to be completed by January 31, 2018. At no time
prior to the discovery deadline, did Defendants file a motion to extend the discovery deadline.
Moreover, Defendants waited until the pretrial conference, on February 20, 2018, to bring up the
fact they had not taken the deposition of Plaintiff or her husband, and then requested for the first
time leave to take the depositions after the discovery deadline.

1

Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).

2

Id.

3

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.”
4

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 391 (1993).

5

Auto Club Family Ins. Co. v. Allgood, No. 11-2079-GLR, 2011 WL 6122358, at *1 (D. Kan.
Dec. 8, 2011).
6

Id.

2

None of Defendants’ arguments address why they failed to seek an extension before the
discovery deadline expired, when they knew Plaintiff and her husband had not yet been deposed.
Defendants’ motion states that just prior to the discovery deadline, on January 24, 2018, Plaintiff
contacted Defendants requesting an extension of the discovery timeframe. But when Defendants’
counsel responded on January 29, 2018, Plaintiff stated she had changed her mind, would not
seek an extension, and was not opposed to Defendants seeking one. Yet, even knowing they had
not deposed or scheduled the depositions of Plaintiff and her husband, Defendants did not file
their motion to extend the discovery deadline until February 27, 2018. The Court finds that
Defendants have not shown excusable neglect.
Even if the Court were to find Defendants had shown excusable neglect for their untimely
request, the Court finds the above-identified Smith factors do not support reopening discovery to
permit Defendants to depose Plaintiff and her husband. Although the first7 and sixth8 factors
weigh in favor of Defendants’ request to reopen discovery, the second through fifth factors
weigh against allowing the request. Plaintiff opposes Defendants’ request if she is not permitted
to take the additional discovery she requests in her response. Because Defendants oppose her
request for additional discovery, she would be prejudiced if Defendants are permitted to conduct
additional discovery after the discovery deadline, but she is not allowed to do so. Defendants
have not shown they were diligent in attempting to schedule the depositions or proceed with
noticing up the depositions before the expiration of the discovery deadline. There is no showing

7

Trial is currently still eight months away.

8

The depositions of Plaintiff and her husband would lead to the discovery of relevance evidence.

3

Defendants made any efforts to schedule the requested depositions prior to the discovery
deadline or even prior to the pretrial conference. The Court is not persuaded by their argument
that meaningful depositions could not be taken until Plaintiff received some finality regarding
her motion to compel ESU to produce its litigation file contents. The need for these depositions
was foreseeable, which Defendants admit. Defendants’ argument that the “strange course of
events regarding ESU’s litigation file” was not foreseeable does not overcome the obvious need
to depose or otherwise seek discovery regarding Plaintiff and her husband’s knowledge of the
claims in the case. In sum, the Court finds that the Smith factors weigh heavily against allowing
Defendants to conduct the requested depositions well after the January 31, 2018 discovery
deadline.
IT IS THEREFORE ORDERED that Defendants’ Motion to Take Depositions Out of
Time (ECF No. 74) is DENIED.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 9th day of March 2018.

Teresa J. James
U. S. Magistrate Judge

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