Galliano Marine Service, LLC v. Schumacher et al

Filing 37

ORDER AND REASONS: IT IS ORDERED that McDowell's 29 motion to extend the discovery and deposition deadlines is DENIED, as set forth in document. Trial will proceed as originally scheduled. Signed by Judge Lance M Africk on 5/21/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GALLIANO MARINE SERVICE LLC

CIVIL ACTION

VERSUS

No. 17-9868

KEVIN SCHUMACHER ET AL.

SECTION I

ORDER & REASONS
Plaintiff Galliano Marine Service LLC (“Galliano”) alleges that defendants
Matthew McDowell (“McDowell”) and Kevin Schumacher (“Schumacher”) engaged in
a scheme whereby McDowell submitted more time for Schumacher in Galliano’s
payroll system than Schumacher actually worked, causing Galliano to pay
Schumacher over $450,000 for work that he did not actually perform and for which
McDowell knew he should not have been paid.1 In response, Galliano initiated the
instant lawsuit on September 29, 2017.2
McDowell was served on October 5, 20173, and his current counsel enrolled in
the case on December 13, 2017.4 Shortly thereafter, on December 19, 2017, the Court
issued a scheduling order, which required all depositions for trial to be taken and all
discovery to be completed no later than May 14, 2018.5
Galliano has apparently conducted all of the discovery it requires and is
prepared to proceed to trial on July 23, 2018—an understandable feat, considering

R. Doc. No. 1.
Id.
3 R. Doc. No. 4.
4 R. Doc. No. 13.
5 R. Doc. No. 15.
1
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the discovery period lasted approximately five months.6 McDowell, on the other
hand, has not been so industrious. He has not deposed any of Galliano’s witnesses or
representatives.7 He also continues to seek responses to various written discovery
requests.8 In light of his failure to comply with the Court’s generous discovery
calendar and despite the fact that trial is rapidly approaching, McDowell now moves
to extend the discovery and deposition deadlines.9
Federal Rule of Civil Procedure 16(b)(4) provides that a court’s scheduling
order “may be modified only for good cause and with the judge’s consent.” This “good
cause standard requires the party seeking relief to show that the deadlines cannot
reasonably be met despite the diligence of the party needing the extension.” S&W
Enters., LLC v. South Trust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003)
(quotation and citation omitted); see also Grochowski v. Phoenix Const., 318 F.3d 80
(2d Cir. 2003) (“A finding of good cause depends on the diligence of the moving
party.”).
The Fifth Circuit has applied a four-factor balancing test in certain contexts to
determine whether good cause exists to modify a scheduling order by weighing (1) the
explanation for the failure to adhere to the deadline at issue; (2) the availability of a
continuance to cure such prejudice; (3) potential prejudice; and (4) the importance of
the proposed modification to the scheduling order. See Geiserman v. MacDonald, 893

See R. Doc. No. 36.
R. Doc. No. 29-1.
8 See id.
9 R. Doc. No. 29.
6
7

2

F.2d 787, 790–92 (5th Cir. 1990) (untimely designation of expert witnesses); Reliance
Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257–58 (5th Cir. 1997) (untimely
submission of expert reports); S & W Enters., 315 F.3d at 536 (untimely amendment
of pleadings). Three of these four factors weigh strongly against modification of the
Court’s scheduling order.
First, McDowell offers no real explanation for his failure to adhere to the
discovery and deposition deadlines. McDowell asserts that he has made a “good faith
effort to comply with [the] Court’s deadline[s]” and that he has “diligently engaged in
written discovery” and “continued to confer regarding scheduling depositions.”10 The
Court, however, is not so convinced.
McDowell did not propound his first set of requests for production until April
3, 2018,11 nearly three and a half months after the Court’s scheduling order was
issued. Additionally, McDowell has inexplicably failed to conduct a single deposition
in relation to this case. Indeed, McDowell evidently did not even inform Galliano of
the nine specific individuals he intended to depose until May 2, 2018, a mere 12 days
before the deposition deadline.12 Finally, McDowell waited until the final day of the
discovery period to file the present motion to extend deadlines and a motion to

R. Doc. No. 29-1, at 1.
Id. at 2.
12 See R. Doc. No. 36 – Exhibit 12. In response, Galliano appears to have offered to
accommodate McDowell’s late request and inquire as to the feasibility of conducting
the requested depositions within the deadline. McDowell’s counsel, however, rejected
the dates offered and indicated that her paralegal would be in touch with Galliano’s
counsel to coordinate the scheduling of depositions. According to Galliano, no such
contact has been made.
10
11

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compel.13 McDowell has not provided any justifiable reason for these dilatory tactics.
The first factor, therefore, weighs heavily against extending the deadlines.
Second, the Court finds that “granting a continuance in this late hour would
unnecessarily delay trial.” Green v. Archer Daniels Midland, No. 10-4481, 2012 WL
85409, at *3 (E.D. La. Jan. 11, 2012) (Africk, J.). “District judges have the power to
control their dockets by refusing to give ineffective litigants a second chance to
develop their case.” Reliance Ins. Co. v. La. Land and Exploration Co., 110 F.3d 253,
358 (5th Cir. 1997).
McDowell has not requested a continuance, and in light of the Court’s current
trial calendar, any continuance would likely result in a delay of several months.
Thus, the second factor counsels against allowing a deviation from the Court’s
original scheduling order.
Third, extending the discovery and deposition deadlines at McDowell’s request
would prejudice Galliano by forcing it to divert resources from its trial preparation
efforts at this late stage of the litigation. Hence, the third factor weighs against the
granting of McDowell’s motion.14

McDowell’s motion to compel has been referred to the United States Magistrate
Judge.
14 The Court is aware that the fourth factor likely weighs in McDowell’s favor, as the
discovery and depositions McDowell seeks may be important to his defense at trial.
Nevertheless, McDowell was afforded nearly five months to obtain the information
he requires for trial, and he has not demonstrated any good cause as to why his lack
of diligence should be overlooked.
13

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Ultimately, McDowell simply has not been diligent in attempting to meet the
deadlines set forth in the Court’s scheduling order. Balancing all of the relevant
factors, no extension of the deadlines is warranted.
Accordingly,
IT IS ORDERED that McDowell’s motion to extend the discovery and
deposition deadlines is DENIED. Trial will proceed as originally scheduled.
New Orleans, Louisiana, May 21, 2018.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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