Ashby v. Louisville Metro Corrections Medical et al
Filing
51
MEMORANDUM OPINION AND ORDER Signed by Senior Judge Thomas B. Russell on 2/13/2020 denying 43 Motion for Extension of Time to Comply with Scheduling Order. cc: Counsel, Plaintiff (pro se) (JM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO.: 5:18-cv-00048-TBR
DAVID LEE ASHBY, JR
PLAINTIFF
v.
LOUISVILLE METRO CORRECTIONS
MEDICAL, et. al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon pro se plaintiff, David Ashby’s (“Ashby”) Motion
for Extension of Time to Comply with Scheduling Order. [DN 43.] Defendant Fulton County
Kentucky Medical (“Defendant”) has responded. [DN 46.] The time to reply has passed. As such,
this matter is ripe for adjudication. For the reasons that follow, Ashby’s Motion for Extension of
Time [DN 43] is DENIED.
I. Background
A scheduling order was entered in this case on February 15, 2019. [DN 21.] All discovery
was due by June 28, 2019. Ashby filed the present motion asking the Court to amend the
scheduling order.
II. Legal Standard
Pursuant to Fed. R. Civ. P. 16(b)(4), "[a] schedule may be modified only for good cause
and with the judge's consent." The "good cause" standard in this context has been construed as
requiring an inquiry into "the moving party's diligence in attempting to meet the case management
order's requirements." Inge v. Rock Financial Corp., 281 F.3d 613, 625 (6th Cir. 2002). An
additional "consideration is possible prejudice to the party opposing the modification." Id. As the
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Sixth Circuit has noted, "while prejudice to the defendant is not an express component of Rule 16,
it is nonetheless a 'relevant consideration.'" Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003).
Thus, "a court choosing to modify the schedule upon a showing of good cause, may do so only 'if
it cannot reasonably be met despite the diligence of the party seeking the extension." Id. (quoting
Fed. R. Civ. P. 16, 1983 advisory committee's notes). “[T]he movant who fails to show good cause
will not be accorded relief under Rule 16(4) merely because the opposing party will not suffer
substantial prejudice as a result of the modification of the scheduling order.” Durand v. Hanover
In.s Grp., 294 F. Supp. 3d 659, 671 (W.D. Ky. 2018).
Pro se litigants are given some leniency on issues that “require legal sophistication, such
as formal pleading rules, the same policy does not support leniency from court deadlines and other
procedures readily understood by laypersons, particularly where there is a pattern of delay or
failure to pursue a case.” Hammond v. Lawson, 2011 U.S. Dist. LEXIS 83038 *3-4 (W.D. Ky. July
27, 2011) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). "Where, for example, a pro
se litigant fails to comply with an easily understood court-imposed deadline, there is no basis for
treating that party more generously than a represented litigant." Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996) (citing Jourdan, 951 F.2d at 110).
III. Discussion
Ashby’s main argument for extending time is he did not receive a copy of the scheduling
order until August 6, 2019 after he requested a copy. Ashby filed a letter with this Court requesting
the scheduling order be sent to him on July 29, 2019. [DN 40.] Defendant argues Ashby cannot
show good cause to extend the deadline. The Court agrees with Defendant.
In the five months between the entry of the scheduling order and Ashby requesting a copy
of the scheduling order, Ashby filed five motions/documents with the Court. [DNs 28, 29, 34, 35,
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36.] During this time, Ashby did not file for an extension to comply with the schedule or inquire
about the schedule. Even if Ashby did not receive the scheduling order when it was entered, the
Court agrees with Defendant that Ashby could have been more diligent in asking for the scheduling
order.
Defendant argues even if Ashby did not receive the scheduling order until August, he was
aware of the discovery deadline. Defendant included the discovery deadline in its Response to
Ashby’s Motion for Extension of Time to Respond to Discovery. [DN 30.] In that response,
Defendant stated, “[t]he discovery deadline is currently June 28, 2019.” [Id.] Ashby did receive
that response because he filed a Motion for Extension of Time to Reply. [DN 34.] Defendant filed
that response on May 14, 2019. Ashby still waited nearly two months to request the scheduling
order. When Ashby received the response that included the discovery deadline, he should have
requested the scheduling order at that point. It cannot be said that Ashby acted with diligence to
comply with the order.
Ashby also argues he did not receive medical records until July 26, 2019 and he has not
received medical records from Roeder Correctional Complex Medical he paid for on December
14, 2018. Assuming both statements are true, the Court recognizes Ashby did not have control
over when the records were sent to him. However, Ashby has not shown any attempts, other than
the initial request, to obtain the requested documents. He never communicated to the Court he was
having difficulty obtaining records until the present motion. Furthermore, Ashby not receiving
some medical records prior to the deadline did not hinder his ability to serve at least some
discovery requests on Defendant. Again, Ashby never moved this Court for an extension of time
due to the inability to receive the records he requested. The Court cannot say Ashby has acted
diligently in pursuing discovery.
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Further evidence of the lack of diligence by Ashby is the date he served discovery on
Defendant. By Ashby’s own admission, he served interrogatories on Defendant on July 25, 2019.
This is a month after the discovery deadline had passed. Ashby serving interrogatories on
Defendant the day before he received medical records is further proof that his ability to conduct
discovery was not hindered due to this reason. Defendant served discovery on Ashby on March
25, 2019. [DN 30.] Ashby was aware at this point that discovery was taking place but did not
attempt to conduct his own discovery until four months later. The Court finds Ashby has not shown
good cause for all the above stated reasons.
Ashby did not file for an extension until the discovery deadline had passed. This Court has
found prejudice would occur when plaintiff moved for an extension the day before a deadline. See
Strulson v. Chegg, Inc., 2017 U.S. Dist. LEXIS 159594 *4 (W.D. Ky. Sept. 28, 2017) (“To grant
Strulson another month to conduct discovery on the eve of this deadline could drastically alter this
case’s schedule….[T]he Court is certain that much work has been put into future filings and [an
extension] could create a domino effect in which large scale changes must be made”. Here, the
deadline for dispositive motions was August 27, 2019. [DN 21.] Ashby filed this motion August
12, 2019. This was only two weeks before the deadline for dispositive motions and Defendant
would be prejudiced because of the work put into its dispositive motion at the point. Due to the
prejudice an extension would cause, Ashby’s motion must be denied.
IV. Conclusion
Ashby has failed to show that the scheduling order entered by this Court could not have
been met with reasonable diligence. Further, the Court finds that Defendant would be prejudiced
if the discovery deadline was extended. For the above stated reasons, IT IS HEREBY ORDERED
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that Ashby’s Motion for Extension of Time to Comply with Scheduling Order [DN 43] is
DENIED.
IT IS SO ORDERED.
February 13, 2020
cc: David Lee Ashby, Jr.
268921
Wabash Valley Correctional Facility
P.O. Box 1111
Carlisle, IN 47838-1111
PRO SE
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