United States of America, ex rel., et al v. Sightpath Medical, Inc., et al

Filing 264

ORDER in Response to 244 Request. Plaintiffs' Request is GRANTED. Fact Discovery due by 10/17/2019. Motions (non-disp) due 11/29/2019. Motions (disp) due by 1/31/2020. Ready for trial due by 6/1/2020.(Written Opinion)Signed by Magistrate Judge David T. Schultz on 4/30/2019. (AJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

United States of America, ex rel., et al.,

Case No. 13-cv-3003 (WMW/DTS)

Plaintiffs,
v.

ORDER

Cameron-Ehlen Group, Inc., et al.,
Defendants.
______________________________________________________________________
INTRODUCTION
Plaintiffs request a 90-day extension of all remaining deadlines in the Pretrial
Scheduling Order, including the trial ready date. Defendants oppose, arguing that
Plaintiffs have not diligently pursued discovery and any enlargement of time would
prejudice Defendants. Because good cause exists to amend the Scheduling Order,
Plaintiffs’ request is granted.
FACTS
In October 2018, this Court issued a Pretrial Scheduling Order pursuant to
Federal Rule of Civil Procedure 16(b). Docket No. 151. Per the Order, the parties must
complete fact discovery by June 30, 2019 and expert discovery by September 30, 2019.
Id. at 2. The Order also set dates for filing and serving non-dispositive and dispositive
motions, and set a “trial ready date” of March 1, 2020. Id. at 2-4.
Since the Scheduling Order issued, the discovery process has been interrupted
on several occasions. Each side has sought to compel responses to their discovery
requests, and the Government’s attorneys were briefly furloughed. More recently,
Defendants have sought to extend the time for a third party to respond to Plaintiffs’
subpoena. Mot. to Extend Return Date of Subpoena, Docket No. 254. Plaintiffs

represent that they are currently working through third party discovery from the various
physicians connected to the alleged kickbacks and are encountering issues scheduling
the physicians’ depositions. Partially due to the bogging down of the discovery process,
the Court has begun to hold monthly status conferences with the parties.
ANALYSIS
Citing the impracticability of meeting the current discovery deadlines, and
recognizing that any change in the discovery dates would create a ripple effect,
Plaintiffs asks the Court to extend the deadline for fact discovery until October 17, 2019,
and extend all remaining deadlines by ninety days. The Court may, for good cause,
modify the Scheduling Order. Fed. R. Civ. P. 16(b)(4). 1 “The primary measure of good
cause is the movant’s diligence in attempting to meet the order’s requirements.”
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008) (quoting Rahn v.
Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). Although the good cause analysis
emphasizes diligence, “there is not a clear test for when a party is diligent enough to
establish good cause[,]” and the district court retains broad discretion. Shank v.
Carleton Coll., 329 F.R.D. 610, 614 (D. Minn. 2019) (quoting Portz v. St. Cloud State
Univ., No. 16-cv-1115 (JRT/LIB), 2017 WL 3332220, at 3-4 (D. Minn. Aug. 4, 2017)).

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Plaintiffs rely upon Rule 6(b) of the Federal Rules of Civil Procedure to seek the
modification as a request, rather than a motion. This reliance is unnecessary, as Rule
16, which governs scheduling orders, already countenances amendment without formal
motion. Fed. R. Civ. P. 16(b) advisory committee’s note to 1983 amendment (“After
consultation with the attorneys for the parties and any unrepresented parties—a formal
motion is not necessary—the court may modify the schedule . . . .”). Because they
requested every deadline be extended by three months, the Plaintiffs request is best
understood as a modification of the scheduling order, not an enlargement of time to
complete “an act.” See Fed. R. Civ. P. 6(b)(1). Indeed, even when a plaintiff seeks to
amend a complaint after the time set by the scheduling order to do so has passed, the
plaintiff must satisfy Rule 16, not Rule 6. Shank, 329 F.R.D. at 613 n. 2.
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Even when satisfied of a party’s diligence, the Court may consider possible prejudice to
the nonmovant. Id.
Plaintiffs have demonstrated good cause to extend the deadlines of the
Scheduling Order. Although not always at the pace Defendants would like, Plaintiffs
have actively pursued discovery since the Scheduling Order was issued. The Court
cannot hold against either party the time expended bringing good faith discovery
disputes for resolution, including disputes that have required in camera review. Nor can
it say Plaintiffs were dilatory in meeting discovery deadlines based upon the
Government’s—admittedly significant—delay in intervening in this matter, as there were
not yet discovery deadlines with which Plaintiffs could comply. Further, the remaining
discovery is not reasonably likely to be completed by the current June deadline,
irrespective of Plaintiff’s diligence. This Court continues to conduct in camera review of
potentially responsive but allegedly privileged documents. Defendants recently filed a
new motion to modify the time for a third party to respond to Plaintiffs’ subpoena, which
must now be resolved. Perhaps most obviously, the parties have numerous physician
depositions left to take, each of which requires coordinating between themselves and
with busy physicians who may not be readily available.
Moreover, the Court cannot find that any prejudice to the Defendants outweighs
good cause already shown. Defendants’ primary concern is that, as long as this matter
is ongoing, it hangs overhead like the Sword of Damocles, threatening both business
and personal relationships. This point is well taken, but it is afield of the concerns of
prejudice generally found in the caselaw, which tend to home in on the prejudicial
effects within the litigation. See, e.g., Hagen v. Siouxland Obstetrics & Gynecology,
P.C., 286 F.R.D. 423 (N.D. Iowa 2012) (finding defendant’s request to extend discovery
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would prejudice plaintiff, as dispositive motions had already been filed and plaintiff had
not contributed to need for extension). Perhaps recognizing this, Defendants argue the
prejudice of any extension would stem from a violation of Rule 1’s mandate of a “just,
speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P.
1. But this principle can only be viewed in light of the facts of the individual case.
Defendants rely too heavily on the time this case remained under seal because of a
separate—though

intertwined—criminal

investigation.

Any

actual

prejudice

to

Defendants from this extension is mitigated by the more active role the Court has begun
to take in the discovery process, which is meant to ensure that this is the last extension
necessary.
ORDER
Based upon the foregoing, and upon all the files, records and proceedings, IT IS
HEREBY ORDERED that:
1. Plaintiffs’ Request to Extend Remaining Deadlines [Docket No. 244] is
GRANTED.
2. The remaining deadlines set in this Court’s Pretrial Scheduling Order
[Docket No. 151] are AMENDED as follows:
a. Fact discovery shall be completed on or before October 17, 2019.
b. All other remaining deadlines shall be extended by 90 days from
the date provided in the PTO.
c. The case shall be ready for trial on or before June 1, 2020.
Dated: April 30, 2019
s/ David T. Schultz
DAVID T. SCHULTZ
United States Magistrate Judge
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