MCI Communications Services, Inc. et al v. Maverick Cutting and Breaking LLC

Filing 33

ORDER denying 23 Motion to Alter/Amend/Supplement Pleadings (Written Opinion). Signed by Magistrate Judge Steven E. Rau on 6/15/2018. (EMA)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

MCI Communications Services, Inc. and
MCImetro Access Transmission Services
LLC,

Case No. 17-cv-1117 (JRT/SER)

Plaintiffs,
ORDER
v.
Maverick Cutting and Breaking LLC,
Defendant.

Seth J.S. Leventhal, Esq., Leventhal PLLC, Minneapolis, Minnesota, for Plaintiffs.
Rachel B. Beauchamp, Esq., Cousineau, Van Bergen, McNee & Malone, PA,
Minnetonka, Minnesota, for Defendant.

STEVEN E. RAU, United States Magistrate Judge
This matter comes before the Court on Plaintiffs MCI Communications Services, Inc. and
MCImetro Access Transmission Services LLC’s (collectively, “MCI”) Motion to Amend
Scheduling Order to File Amended Complaint and Add a Party Based on Newly Discovered
Evidence (“Motion to Amend”) [Doc. No. 23]. This matter has been referred for the resolution of
pretrial matters pursuant to 28 U.S.C. § 636(b) and District of Minnesota Local Rule 72.1. For
the reasons stated below, the motion is denied.
I.

BACKGROUND
On April 14, 2015, Defendant Maverick Cutting and Breaking LLC (“Maverick”)

severed several fiber-optic cables belonging to MCI as part of a construction project. See
(Compl.) [Doc. No. 1 ¶¶ 14, 16]. The day after the incident, MCI representatives participated in a
meeting with Carl Bolander & Sons LLC (“Bolander”), the subcontractor that hired Maverick,

and other entities. (Minutes, Ex. D, Attached to Aff. of Rachel Beauchamp in Opp’n to Mot. to
Amend) [Doc. No. 30-1 at 10–13]; see also (Mem. in Supp. of Mot. to Amend, “Mem. in
Supp.”) [Doc. No. 25 at 2] (stating that at the time of this incident, “Maverick was working as a
subcontractor for Bolander”). Maverick did not participate in the meeting.
MCI initiated this lawsuit alleging that Maverick is responsible for the damage to its
cables under the legal theories of trespass, negligence, and statutory liability. (Compl. ¶¶ 12–26).
Following a scheduling conference, the Court issued the Pretrial Scheduling Order setting
November 3, 2017, as the last day for the parties to file motions to amend the pleadings to add
claims or parties. 1 [Doc. No. 16 at 1].
During the course of discovery in June 2017, MCI sought documents including contracts
relating to Maverick’s work on the construction project from the City of St. Paul (the “City”),
Kraemer North America, LLC (“Kraemer”), and Bolander. 2 (Proszek Decl. ¶¶ 5–6). When these
three entities responded to the requests during the months of June through August 2017, none of
them produced contracts. (Id. ¶¶ 8, 11–12). On March 22, 2018, however, Kraemer produced a
contract between itself and the City (the “Kraemer Contract”) and a contract between itself and
Bolander (the “Bolander Contract”) during Kraemer’s corporate deposition. (Id. ¶ 15).
MCI filed its Motion to Amend on April 26, 2018, arguing that the recently produced
contracts are new evidence that establish good cause for it to move to amend its complaint nearly
six months after the deadline established in the Pretrial Scheduling Order. See (Mem. in Supp.).
Specifically, MCI’s proposed amended complaint adds Bolander as a party, adds a claim for
breach of contract against Maverick and Bolander based on MCI’s status as an intended
1

Notably, this was the amended pleadings deadline the parties requested in their Rule 26(f)

report.
2

MCI submitted a public records request to the City, and served subpoenas duces tecum
on Bolander and Kraemer. (Decl. of James J. Proszek in Supp. of Mot. to Amend, “Proszek
Decl.”) [Doc. No. 26 ¶¶ 5–6].
2

beneficiary of both the Kraemer and Bolander Contracts, and adds a claim for negligence against
Bolander. (Proposed Am. Compl., Ex. 9, Attached to Proszek Decl.) [Doc. No. 26-9 at 1, 10–12].
The Court heard oral argument on June 13, 2018, and the matter is now ripe for adjudication.
(Minute Entry Dated June 13, 2018) [Doc. No. 31].
II.

DISCUSSION
A.

Legal Standard

Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order “may be
modified only for good cause and with the judge’s consent.” Good cause is an exacting standard
that focuses on “the diligence with which the moving party attempted to comply with the
scheduling order’s deadlines and not on the prejudice to the non-moving party.” Target Corp. v.
LCH Pavement Consultants, LLC, 960 F. Supp. 2d 999, 1006 (D. Minn. 2013) (Keyes, Mag. J.)
(citation omitted); see also Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 610 (8th Cir.
2011).
B.

Analysis

MCI has not established good cause. Scheduling orders “control litigation by managing
the timing, sequence, and closing of pleadings,” among other deadlines, as part of a court’s
“obligation to ‘secure the just, speedy, and inexpensive determination of every action and
proceeding.’” Target Corp., 960 F. Supp. 2d at 1007 (quoting Fed. R. Civ. P. 1). This Court in
particular makes an effort to issue a pretrial scheduling order that is the same or substantially
similar to the schedule the parties propose because, at the time of the pretrial scheduling
conference, the parties—not the Court—know more about their case and the time it will take to
effectively litigate it. To that end, the Court presumes that the parties will proceed with discovery
diligently in an effort to keep the case on schedule. But that is not what happened in this case.

3

According to MCI’s own timeline, as of August 2017, the City, Kraemer, and Bolander
had all responded to its requests for documents. (Mem. in Supp. at 4–5). As MCI’s counsel said
during the hearing, MCI expected that contracts existed regarding this construction project and it
therefore specifically noted that contracts were included in the types of documents it was looking
for. 3
When MCI learned that these productions did not include contracts, however, it took no
action until the corporate deposition of Kraemer. MCI did not informally reach out to anyone at
the City, Kraemer, or Bolander to ask whether contracts existed and why they had not been
produced. Nor did it file a motion to compel Kramer or Bolander to produce the contracts MCI
assumed existed. 4 See Fed. R. Civ. P. 37(a)(2) (stating that “[a] motion for an order to a nonparty
must be made in the court where the discovery is or will be taken”); Fed. R. Civ. P. 37(a)(4)
(stating that an incomplete disclosure “must be treated as a failure to disclose, answer, or
respond”). Instead, the only action MCI took was to participate in Kraemer’s corporate
deposition in March 2018. The Court cannot conclude that taking no action once it was clear that
no contracts were produced constitutes diligence in attempting to comply with the Pretrial
Scheduling Order. Thus, the Court concludes that MCI has not established good cause and denies
the Motion to Amend. 5

3

For example, in its subpoena to Kraemer, MCI requested “[a]ll documents evidencing,
referring or relating to any work you, Bolander and/or Maverick performed, or intended to
perform, on the Project on or before April 14, 2015 . . . including, but not limited to, contracts,
plans, drawings, bid documents, project specifications, invoices and/or inspection reports.” (Ex.
2 at 5, Attached to Proszek Decl.) [Doc. No. 26-2].
4
It is unclear, but ultimately irrelevant, what recourse MCI had against the City in light of
its tactical decision to submit a public records request instead of issuing a subpoena duces tecum
to the City.
5
Because MCI has not satisfied this threshold burden of good cause, the Court need not
consider Maverick’s arguments that the amendment is futile. See (Def.’s Mem. of Law in Opp’n
to Mot. to Amend) [Doc. No. 29 at 9–10, 12–13].
4

III.

CONCLUSION
Based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that

Plaintiffs MCI Communications Services, Inc. and MCImetro Access Transmission Services
LLC’s Motion to Amend Scheduling Order to File Amended Complaint and Add a Party Based
on Newly Discovered Evidence [Doc. No. 23] is DENIED.

Dated: June 15, 2018
s/Steven E. Rau
STEVEN E. RAU
United States Magistrate Judge

5