Coleman v. Minneapolis Public Schools
ORDER denying 68 Motion for Extension of Time; granting in part and denying in part 69 Motion to Quash and Motion for Protective Order. (Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 10/13/2020. (EMCS)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 18-cv-2283 (DSD/ECW)
Minneapolis Public Schools,
This case is before the Court on pro se Plaintiff Daniel Coleman’s (“Plaintiff”)
Motion to Extend Time to Complete Fact Discovery (Depositions) (“Motion for
Extension”) (Dkt. 68) and Minneapolis Public School’s (“the District”) Motion to Quash
Subpoenas and for a Protective Order (“Motion for Protective Order”) (Dkt. 69). For the
reasons stated below, the Court denies the Motion for Extension and grants the Motion
for Protective Order in part.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who worked as a Behavioral or Engagement Dean at Bryn Mawr
Elementary School during the 2016-2017 school year, alleges that the District terminated
his employment in violation of the Americans with Disabilities Act and Minnesota
Statutes § 179A.06. (Dkt. 23 at 2-3, 5; Dkt. 24 ¶ 13.)1 In particular, Plaintiff alleges that
the District failed to accommodate his asthma and retaliated against him after he sought
All page citations are to the CM/ECF system’s pagination unless otherwise
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accommodation for his asthma from Principal Kristiana Ward (“Principal Ward”) and
that he was retaliated against after his mother “sent a private/confidential email to the
Minnesota Department of Education Commissioner, Dr. Brenda Casellius[,] about [a]
student having a gun at Bryn Mawr School,” which was then forwarded to the
Superintendent of the District and for which Plaintiff allegedly was reprimanded. (Dkt.
23 at 5-6; Dkt. 24 ¶ 7.) Plaintiff also contends his PERLA rights were violated because
the District suspended him for exercising his right to express his views about the
conditions of his employment. (Dkt. 23 at 3.) The District contends that it terminated
Plaintiff for poor job performance, including “exacerbat[ing] the situation” when students
were misbehaving. (Dkt. 24 ¶¶ 14-15.)
Plaintiff filed this action on August 3, 2018. (Dkt. 1.) The Court held a Rule 16
conference and entered a scheduling order on January 24, 2019. (Dkts. 17, 18.) Plaintiff
filed the operative Amended Complaint on February 22, 2019. (Dkt. 23.) On June 10
and 11, 2019, Plaintiff emailed the names of several individuals he wished to depose in
connection with this case to the District’s counsel at the law firm of Bassford Remele.
(Dkt. 78 at 9-10.) On June 19, 2019, counsel responded that three of the individuals,
including Principal Ward, were no longer employed by the District, and that Plaintiff
would have to issue subpoenas for their depositions. (Id. at 8.) As to some of the
remaining individuals, counsel for the District informed Plaintiff that subpoenas would
also be required for their depositions because they were not “managing agents” who had
any authority over the decision to terminate Plaintiff’s employment. (Id.)
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On June 24, 2019, Plaintiff filed a Motion to Compel Discovery (Dkt. 33), and on
June 26, 2019, Plaintiff filed a Motion to Extend Fact Discovery (Dkt. 34). The Court
held several hearings (Dkts. 44, 46, 54, 57), the parties submitted several briefs, letters,
and affidavits (Dkts. 35, 36, 37, 38, 40, 41, 42, 47, 49, 50, 51, 55, 61, 62), and the Court
issued several orders (Dkt. 45, 48, 59) in an effort to narrow the issues raised by the June
24, 2019 Motion to Compel. At the December 4, 2019 hearing on the Motion to Compel,
the Court asked counsel for the District whether he was authorized to accept service on
behalf of the third parties that Plaintiff proposed to depose. Counsel responded that
Principal Ward had returned as an employee of the District but as to the third parties, he
was not authorized to accept service. (See Dkt. 63 at 5 n.4.) On January 9, 2020, the
Court issued its final order on the Motion to Compel, requiring the District to produce
certain documents by March 30, 2020, and extended the deadline for fact discovery in
this case until May 29, 2020. (Id. at 7-8.) The Court noted: “The parties need not wait
until the District’s March 30, 2020 production to issue deposition notices and
subpoenas.” (Id. at 7 n.5.)
On April 6, 2020, Plaintiff sent a letter to counsel for the District requesting a
meeting to discuss discovery. (Dkt. 78 at 2.) Counsel for the District responded on the
same day stating that his firm was operating remotely due to the COVID-19 pandemic
and that he could not speak with Plaintiff in person but they could speak by phone. (Id. at
3.) Plaintiff and counsel apparently spoke on April 9, 2020 and again on April 21, 2020.
(Id. at 6-7; Dkt. 79-1, Ex. A at 2, Ex. B at 4.) During the April 21, 2020 call, Plaintiff
and counsel discussed additional documents that Plaintiff was seeking and Plaintiff’s
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request for an extension of the May 29, 2020 fact discovery deadline. (Dkt. 79-1, Ex. B
at 4.) An April 21, 2020 summary email sent by counsel for the District noted that
Plaintiff “advised that [he] planned to contact the court to ask for another discovery
extension and to seek additional information relating to part 2c of the Court’s 1/9/2020
Order.” (Id.) Counsel’s email concluded: “From this point forward, I will welcome
written communication from you, but we will not participate in further telephone
discussions regarding this case.” (Id.) Plaintiff responded on the same day stating:
I am asking for what the court has ordered. I advised I will be moving to
have discovery extended due to court orders not being honored and due to
the current Covid 19 Pandemic.
You disagreed for an extension and have not provided information for part C
of the court order.
(Dkt. 79-1, Ex. C at 6.)
Two days later, on April 23, 2020, the Court held a pre-discovery dispute call with
Plaintiff and counsel for the District. (Dkt. 66.) The Court directed Plaintiff “to review
the Court’s previous orders regarding this discovery dispute to determine if requested
documents have already been ruled on by the Court and send counsel for [the District] a
list of any remaining documents that are sought by April 30, 2020.” (Id.) The Court also
ordered the parties, if they could not resolve the dispute, to “advise the Court by emailing
email@example.com on or before May 4, 2020 and inform
the Court whether both parties agree to IDR.” (Id.) No party sought relief from the
Court on or before May 4, 2020, and the deadline to file non-dispositive motions expired
on June 12, 2020. (Dkt. 64 at 1.)
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On June 30, 2020, at Plaintiff’s request, the Clerk’s Office issued ten subpoenas
directed to third parties, including Ward. (Dkt. 67.) Plaintiff filed proofs of service for
those subpoenas indicating they were served by delivery to Bassford Remele on July 8,
2020. (Id.) On July 9, 2020, counsel for the District emailed Plaintiff stating that the
subpoenas were untimely in view of the May 29, 2020 deadline for fact discovery and
demanding that Plaintiff withdraw the subpoenas. (Dkt. 72-1, Ex. D at 32.) Plaintiff
responded on the same day that he was not able to serve the subpoenas earlier due to
COVID and offices being closed2 and that he would not withdraw the subpoenas. (Id.)
Plaintiff filed his Motion for Extension on July 10, 2020 (Dkt. 68), and the District
filed its Motion for Protective Order on July 17, 2020 (Dkt. 69). The Court held a
hearing on the Motion for Extension and Motion for Protective Order on August 20,
2020, at which the Court granted the Motion for Protective Order insofar as prohibiting
either party from engaging in any discovery until the Court issued a written order on the
two Motions. (Dkt. 77.) Also at the hearing, the District advised the Court that two
additional subpoenas were served on Bassford Remele on August 19, 2020, one for the
District’s Crisis Prevention Intervention trainer Kevin Baker and the other for Candra
Bennett, who worked as a District Senior Employee Relations Associate. Plaintiff
explained to the Court that they were for “expert” depositions, although both depositions
are of District employees and it appears to be undisputed that Plaintiff did not serve any
Plaintiff appears to be referring to the process server’s offices being closed. (See
Dkt. 72-1, Ex. D at 32 (“My third part wasnt [sic] able to serve due to covid19 and there
[sic] offices being closed.”).)
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expert identities or disclosures on the District before serving the deposition notices.3 The
Court also ordered the parties to submit any supplemental evidence by August 27, 2020.
(Id.) The parties filed their supplemental evidence on August 27, 2020 (Dkts. 78, 79),
and the Motions are now ripe for decision.
MOTION FOR EXTENSION
Under Rule 16(b), a schedule “may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). Similarly, Local Rule 16.3 states: “A party
that moves to modify a scheduling order must: (1) establish good cause for the proposed
modification . . . .” D. Minn. LR 16.3(b)(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, 716-17 (8th Cir. 2008) (quoting Rahn v. Hawkins, 464
F.3d 813, 822 (8th Cir. 2006)); see also Fed. R. Civ. P. 16(b), advisory committee note
(1983 Amendment) (“[T]he court may modify the schedule on a showing of good cause if
it cannot reasonably be met despite the diligence of the party seeking the extension.”).
“The good cause standard of Rule 16(b) is an exacting one, for it demands a
demonstration that the existing schedule cannot reasonably be met despite the diligence
of the party seeking the extension.” IBEW Loc. 98 Pension Fund v. Best Buy Co., Inc.,
326 F.R.D. 513, 522 (D. Minn. 2018) (cleaned up). The “exacting” standard set by Rule
16(b) requires that a moving party first make the requisite good cause showing. E.E.O.C.
The Court notes that these disclosures were due on or before June 30, 2020. (Dkt.
64 at 1.)
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v. Hibbing Taconite Co., 266 F.R.D. 260, 265 (D. Minn. 2009). Even then, however “the
district court retains discretion as to whether to grant the motion.” Bradford v. DANA
Corp., 249 F.3d 807, 809 (8th Cir. 2001).
Because scheduling orders are “a vehicle designed to streamline the flow of
litigation through [the Court’s] crowded docket,” the Court does not take such orders
lightly and, where good cause to modify has not been shown, “will enforce them.” Id.
“While the prejudice to the nonmovant resulting from modification of the scheduling
order may also be a relevant factor, generally, [a court] will not consider prejudice if the
movant has not been diligent in meeting the scheduling order’s deadlines.” Sherman, 531
F.3d at 717 (citing Bradford, 249 F.3d at 809). Moreover, pursuant to the Local Rules,
“[e]xcept in extraordinary circumstances, before the passing of a deadline that a party
moves to modify, the party must obtain a hearing date on the party’s motion to modify
the scheduling order.” D. Minn. LR 16.3(d).
Although Rule 16 governs amendment of scheduling orders, Plaintiff seeks relief
under Federal Rule of Civil Procedure 6(b).4 Under Rule 6(b), “[w]hen an act may or
Plaintiff also seeks relief under Federal Rule of Civil Procedure 60(b)(1) (Dkt. 68
at 1), but paragraph (b) of Rule 60 “applies only to a ‘final judgment, order, or
proceeding,’” and does not apply here. See 11 Charles Alan Wright & Arthur R. Miller,
Fed. Prac. & Proc. § 2852 (3d ed. 2008); see also Mestecky v. N.Y.C.Dep’t of Educ., No.
13CV4302CBAVMS, 2016 WL 7217637, at *2 (E.D.N.Y. Dec. 12, 2016) (finding that
courts have “repeatedly held that a motion for reconsideration of a magistrate judge’s
ruling on a non-dispositive matter is not permitted by Rule 60 of the Federal Rules of
Civil Procedure . . . .”) (citations omitted). Rather than seeking reconsideration, pursuant
to Local Rule 72.2(a), a party may file and serve objections within 14 days of being
served with a copy of a magistrate judge’s order on a non-dispositive matter seeing
review of the order by a district judge. D. Minn. LR 72.2(a)(1).
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must be done within a specified time, the court may, for good cause, extend the time [to
complete an act] on motion made after the time has expired if the party failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “The determination as to what
sort of neglect is considered excusable is an equitable one, taking account of all relevant
circumstances surrounding the party’s own omission.” Hawks v. J.P. Morgan Chase
Bank, 591 F.3d 1043, 1048 (8th Cir. 2010) (citation omitted).
Plaintiff seeks a 90-day extension of the fact discovery deadline. (Dkt. 68 at 1.)
His Motion for Extension sets forth the following reasons why he needs an extension of
the fact discovery deadline:
Due to the unfortunate Pandemic COVID 19, it has been very challenging
being able to acquire court reporters and a suitable venue.
Due to Covid 19 restrictions and new procedures Plaintiff had difficulty
reaching the clerk’s office to drop off subpoenas. There is a drop box for
submissions and then subpoenas are sent back to Plaintiff. Plaintiff
submitted twice to make sure submissions were done correctly.
Plaintiff has scheduled the Defendants deposition for July 29, 2020 at 8:30
AM at 315 se Main st. in a Performance Hall. This hall was not available
until July, 2020.
Plaintiffs server was not able to deliver subpoenas to Defendant Minneapolis
Public Schools at 1250 W. Broadway in Minneapolis, MN due to Covid 19
restrictions. The Defendant’s offices are closed until further notice. The
process server finally was able to serve subpoenas at Bass[ford] and Remele
on July 8, 2020.
Plaintiff misunderstood the new scheduling order deadline and experienced
oversight thinking depositions were due August 31, 2020.
(Id. at 1-2.)
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In his opposition to the District’s Motion for Protective Order, Plaintiff also
asserts that he “faced many obstacles from the Defendant denying information or making
false claims regarding the lack of availability of documents/staff members,” was in a car
accident on April 27, 2020, and was quarantined from May 13, 2020 to May 27, 2020 due
to family members contracting COVID-19. (Dkt. 75 at 1-2.)
Plaintiff Has Not Shown the “Extraordinary Circumstances” Required
Under Local Rule 16.3(d).
The Court first considers whether Plaintiff has shown the “extraordinary
circumstances” required under Local Rule 16.3(d) to excuse the fact that he sought
modification of the fact discovery deadline after that May 29, 2020 deadline had passed.
In particular, Plaintiff did not seek relief from the Court with respect to the schedule until
July 9, 2020, when he emailed the undersigned’s chambers regarding his request and was
told to file a motion on CM/ECF. Plaintiff then filed his Motion on July 10, 2020, over a
month after the May 29, 2020 close of fact discovery deadline he now seeks to extend.
(Dkt. 68.) Plaintiff explains that he did not seek modification of the scheduling order
earlier because the District delayed in producing documents; he had difficulties arising
out of the COVID-19 pandemic, including because he was required to self-quarantine
from May 13 to May 27, 2020; he was in a car accident on April 27, 2020; and he
misunderstood the scheduling order. (Id. at 1-2; Dkt. 75 at 1-2.) For several reasons, the
Court concludes that those circumstances do not constitute the “extraordinary
circumstances” required under Local Rule 16.3(d).
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First, Plaintiff was on notice as of April 21, 2020 that the District would not agree
to an extension of the fact discovery deadline, and Plaintiff informed counsel for the
District on the same day that he planned on seeking an extension. (Dkt. 79-1, Ex. B at 4;
Dkt. 79-1, Ex. C at 6.) Second, as to any delay by the District in producing documents,
the Court held a pre-discovery dispute call with Plaintiff and counsel for the District on
April 23, 2020, and directed Plaintiff to review the Court’s previous orders to determine
if requested documents had already been ruled on by the Court and to send counsel for
Defendant a list of any remaining documents that were sought by April 30, 2020. (Dkt.
66.) The parties were directed to raise any remaining disputes regarding documents with
the Court by May 4, 2020. (Id.) Neither party brought any dispute to the Court’s
attention. Accordingly, to the extent Plaintiff contends that an extension is warranted
because the District obstructed discovery, Plaintiff has not explained how any such
obstruction prevented him from seeking relief from the Court.5
The Court next considers Plaintiff’s April 27, 2020 car accident and the effects of
the COVID-19 pandemic. Plaintiff did not identify any injuries arising from the April 27,
2020 accident that precluded him from seeking modification of the schedule before May
29, 2020. Moreover, while the Court takes seriously concerns regarding the COVID-19
pandemic, Plaintiff clarified at the August 20, 2020 hearing that, while he was told to
As to the argument that the District made false claims about the availability of
staff for deposition, the Court understands this to refer to the fact that counsel for the
District told Plaintiff in June 2019 that Principal Ward was no longer a District employee
and later informed him that she was again a District employee. That Principal Ward was
again a District employee was made clear at the December 4, 2019 hearing, and
consequently does not justify Plaintiff’s late motion to extend the schedule.
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self-quarantine from May 13 to May 27, 2020 due to his asthma and because certain
family members were infected with COVID-19, he personally did not experience any
COVID-19 symptoms.6 Plaintiff has had CM/ECF filing privileges since June 25, 2019
(Dkt. 32) and has repeatedly demonstrated his ability to file on CM/ECF. In view of
those facts, Plaintiff has not explained how the car accident and his self-quarantine
prevented him from seeking an extension by filing a motion on CM/ECF before May 29,
Finally, Plaintiff says that he misunderstood the scheduling order and thought the
deadline for depositions was August 31, 2020. The Court notes, however, that the only
August 31, 2020 deadline in the January 9, 2020 Amended Pretrial Scheduling Order is
for “[e]xpert discovery, including depositions.” (Dkt. 64 at 2.) The Court further notes
that Plaintiff’s Motion to Extend Fact Discovery filed on June 26, 2019 specifically
sought a 30-day extension of the fact discovery deadline “to subpoena witnesses, depose
witnesses and file dispositive motion after July 15, 2019 [the fact discovery deadline at
that time]” and stated that Plaintiff was “currently in the process of issuing subpoenas for
a future date in July and/or Late August .” (Dkt. 34 at 1.) In view of Plaintiff’s
earlier recognition that depositions needed to be complete by the close of fact discovery,
the Court finds any misunderstanding in Spring 2020 does not constitute “extraordinary
It is not clear whether Plaintiff contracted COVID-19, but rather simply that even
if he did, he was asymptomatic.
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In sum, for all of these reasons, the Court concludes that Plaintiff has not shown
the requisite “extraordinary circumstances” that would justify granting Plaintiff’s Motion
for Extension of the fact discovery deadline when it was brought after that deadline, and
denies the Motion for Extension on this ground.
Plaintiff Has Not Shown the “Good Cause” Required Under Federal
Rule of Civil Procedure 16(b)(4) and Local Rule 16.3(b)(1).
In view of the Court’s decision as to “extraordinary circumstances,” the Court
need not address whether Plaintiff has shown the “good cause” required for an extension
of the schedule under Federal Rule of Civil Procedure 16(b)(4) and Local Rule
16.3(b)(1). However, even if Plaintiff’s Motion for Extension had been timely brought,
the Court would find for the following reasons that Plaintiff had not demonstrated “good
To show “good cause” here, Plaintiff must show that the May 29, 2020 deadline
for fact discovery could not have “reasonably be[en] met despite the diligence of the
party seeking the extension.” See IBEW Loc. 98 Pension Fund, 326 F.R.D. at 522
(cleaned up). Plaintiff relies heavily on the difficulties in obtaining court reporters,
serving his subpoenas, and finding a location for the depositions in view of the COVID19 pandemic. (See Dkt. 68 at 1-2.) He also explained at the hearing that he did not want
to conduct his depositions until the District’s document production was complete, which
was not until March 30, 2020. The Court has carefully considered these arguments and
concludes that Plaintiff has not shown that he could not have reasonably completed his
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depositions before May 29, 2020 and therefore finds that he has failed to meet his burden
with respect to “good cause.”
As an initial matter, while the District was not required to complete its document
production until March 30, 2020, the Court instructed the parties in its January 9, 2020
Order that they “need not wait until the District’s March 30, 2020 production to issue
deposition notices and subpoenas.” (Dkt. 63 at 7 n.5 (emphasis added).) The Court
understands Plaintiff’s desire to have those documents in his possession before taking the
depositions, but nothing prevented Plaintiff from issuing subpoenas setting deposition
dates for after March 30, 2020 (and before the May 29, 2020 close of fact discovery) in
the meantime. Indeed, as noted above, Plaintiff stated he was in the process of issuing
subpoenas as early as June 26, 2019. (Dkt. 34 at 1.)
Plaintiff also referred to difficulties he had in obtaining subpoenas from the
Clerk’s Office in view of the COVID-19 pandemic. Again, the Court does not intend to
minimize the impact of the COVID-19 pandemic, but on March 13, 2020, a General
Order was posted on the District of Minnesota website stating that the U.S. Courthouses
in Minneapolis, St. Paul, Duluth, and Fergus Fall remained “open for business,”
including the Clerk’s Office intake desk and ECF helpdesks, which have been staffed
throughout the pandemic. See General Order In Re: Court Operations Under the Exigent
Circumstances Created by COVID-19 (March 13, 2020) at 1-2.7 In the absence of any
more specific explanation from Plaintiff of why it was difficult to obtain the subpoenas
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(including the dates when he first sought them), the Court cannot find that those
difficulties constitute “good cause” for an extension. Similarly, Plaintiff has referenced
difficulties he had in serving the subpoenas on Bassford Remele and his attempts to do
so. But the subpoenas served on July 8, 2020 were issued by the Clerk’s Office on June
30, 2020 (see Dkt. 67 (proofs of service of subpoenas)), and it is undisputed that Plaintiff
never contacted counsel for the District by email to discuss service of the subpoenas.
Consequently, the Court cannot find “good cause” based on any delay in service on
Finally, to the extent Plaintiff contends his misunderstanding of the schedule
constitutes “good cause,” the Court finds that argument unpersuasive in view of
Plaintiff’s recognition in June 2019 that depositions needed to be complete by the close
of fact discovery. (See Dkt. 34 at 1.)
For all of these reasons, the Court finds that Plaintiff has not shown the “good
cause” necessary under Federal Rule of Civil Procedure 16(b)(4) and Local Rule
16.3(b)(1) to extend the schedule. Because there is no “good cause” for the extension,
the Court need not and does not consider prejudice to the District. See Sherman, 531
F.3d at 717 (“[G]enerally, we will not consider prejudice if the movant has not been
diligent in meeting the scheduling order’s deadlines.”). The Court has considered
Plaintiff’s arguments in detail, but because scheduling orders are “a vehicle designed to
streamline the flow of litigation through [the Court’s] crowded docket,” the Court does
not take such orders lightly and, where good cause to modify has not been shown, “will
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enforce them.” Bradford, 249 F.3d at 809. The absence of “good cause” provides
another basis for denying Plaintiff’s Motion for Extension.
Plaintiff Has Not Shown “Excusable Neglect”
Because Plaintiff moved under Rule 6(b), the Court also considers whether he has
shown “excusable neglect” for his failure to complete depositions before the May 29,
2020 close of fact discovery or seek relief from the Court before that deadline and the
deadline for non-dispositive motions relating to fact discovery passed.8 See Fed. R. Civ.
P. 6(b)(1)(B). It appears that the Eighth Circuit requires a finding of “good cause” before
the question of “excusable neglect” need be considered. See Albright ex rel. Doe v.
Mountain Home Sch. Dist., 926 F.3d 942, 951 (8th Cir. 2019) (“Although [plaintiff’s]
counsel thereafter attempted with some diligence to complete her response, her filing it
ten days after the deadline did not create good cause where none previously existed. Nor
The Court notes that it is questionable whether Rule 6(b) applies in connection
with an extension of the scheduling order given that Rule 16 is specific to extensions of
the scheduling order. See Shank v. Carleton Coll., 329 F.R.D. 610, 614 n.2 (D. Minn.
2019) (“Arguably the excusable-neglect standard should apply when a party seeks to
modify the scheduling order after the deadline has passed. See Fed. R. Civ. P. 6(b)(1)(B)
(requiring a showing of good cause and excusable neglect to extend an expired deadline);
Portz v. St. Cloud State Univ., No. 16-cv-1115 (JRT/LIB), 2017 WL 3332220, at *3 n.1
(D. Minn. Aug. 4, 2017) (noting that ‘a somewhat different analysis may be warranted for
deadlines that have already run’). But the plain text of Rule 16 does not make this
distinction. And in Sherman, the Eighth Circuit was explicit that the ‘good-cause
standard governs when a party seeks leave to amend . . . outside of the time period
established by a scheduling order.’ 532 F.3d at 716. Accordingly, the Court considers
this appeal in light of the good-cause standard.”); Neighbors Law Firm, P.C. v. Highland
Capital Mgmt., L.P., No. 5:09-CV-352-F, 2011 WL 238605, at *2 (E.D.N.C. Jan. 24,
2011) (quoting Richardson v. United States, No. 5:08-CV-260-D, 2010 WL 3855193, at
*3 (E.D.N.C. Sept. 30, 2010)) (“‘The good cause modification provision specific to Rule
16(b)(4) takes precedence over the generally applicable extension provisions of Rule
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could [plaintiff] establish excusable neglect if good cause were found.”). Here, having
found no “good cause,” the Court need not reach the question of “excusable neglect.”
Even if the Court considered “excusable neglect,” it would find that Plaintiff’s
delay was not excusable. “Excusable neglect encompasses four factors: prejudice to the
non-moving party, the length of the delay, the movant’s good faith, and the reason for the
delay,” where “[t]he reason for the delay is a key factor in the analysis.” Id. For the
same reasons the Court finds Plaintiff has not shown the “extraordinary circumstances”
required under Local Rule 16.3(d) to excuse the fact that he sought modification of the
fact discovery deadline after that May 29, 2020 deadline had passed, the Court also finds
that Plaintiff’s delay in taking depositions and seeking an extension of the schedule does
not constitute “excusable neglect.”
THE DISTRICT’S MOTION FOR PROTECTIVE ORDER
“Federal Rule of Civil Procedure 45 provides that ‘the issuing court must quash or
modify a subpoena that’ among other things ‘requires disclosure of privileged or other
protected matter’ or ‘subjects a person to undue burden.’” Shukh v. Seagate Tech., LLC,
295 F.R.D. 228, 235 (D. Minn. 2013) (quoting Fed. R. Civ. P. 45(c)(3)). Similarly, Rule
26 permits “[a] party or any person from whom discovery is sought” to seek a protective
order, and provides that a court may, “for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.
R. Civ. P. 26(c)(1).
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The District asks the Court to quash Plaintiff’s subpoenas, primarily on grounds of
undue burden, and to issue a protective order preventing Plaintiff from conducting further
discovery in this case. (Dkt. 71 at 1, 10-11, 13.) The District contends that because
Plaintiff served his subpoenas after the May 29, 2020 close of fact discovery, a protective
order preventing Plaintiff from seeking further discovery is necessary. (Id. at 14-15.)
As an initial matter, the Court notes that the District maintained at the hearing that
of the twelve persons for whom Plaintiff served subpoenas, two are not District
employees and only one employee, the District Superintendent, is of a high enough level
that a deposition notice is sufficient to secure his attendance. Consequently, it is unclear
whether the District actually has standing to move to quash on behalf of any of the
subpoenaed persons other than the District Superintendent. See Shukh, 295 F.R.D. at 235
(“[P]arties to whom subpoenas are not directed lack standing to quash or modify such
subpoenas on the basis that the subpoenas impose an undue burden.”).
Nevertheless, the District has also sought a protective order in this case, and “Rule
26(c) provides that ‘[a] party or any person from whom discovery is sought may move
for a protective order in the court where the action is pending.’” Id. at 236 (quoting Fed.
R. Civ. P. 26(c)(1)). Rule 26(c) “also provides the Court with the authority to issue ‘for
good cause . . . an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Id. (quoting Fed. R. Civ. P. 26(c)). “‘The
explicit mention of “a party” in the rule has been interpreted to provide standing for a
party to contest discovery sought from third-parties.’” Id. (quoting Underwood v.
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Riverview of Ann Arbor, No. 08-CV-11024, 2008 WL 5235992, at * 2 (E.D. Mich. Dec.
15, 2008)). The Court therefore construes the District’s motion with respect to the
subpoenas as a motion for protective order ordering Plaintiff to withdraw the subpoenas.
See id. at 235 (“Consequently, the Magistrate Judge ordered [plaintiff] to withdraw the
five challenged subpoenas as well as his Rule 34 request for documents.”).
Here, in view of the Court’s denial of Plaintiff’s Motion for Extension, the Court
finds good cause for issuance of a protective order with respect to the subpoenas. As
explained in Marvin Lumber & Cedar Co. v. PPG Industries, Inc.:
[T]o allow a party to continue with formal discovery—that is, discovery
which invokes the authority of the Court—whether in the guise of Rule 45,
or any of the other discovery methods recognized by Rule 26(a)(5), after the
discovery deadline unnecessarily lengthens [the] discovery process, and
diverts the parties’ attention, from the post-discovery aspects of preparing a
case for Trial, to continued involvement in the discovery, and in the
nondispositive  Motion process[. W]e can find no plausible reason to
exempt Rule 45 discovery from the time constraints that are applicable to all
of the discovery methods recognized by the Federal Rules of Civil Procedure.
177 F.R.D. 443, 445 (D. Minn. 1997).
Pursuant to the January 9, 2020 Amended Pretrial Scheduling Order, fact
discovery closed on May 29, 2020. (Dkt. 64 at 1.) The Court therefore concludes that
requiring the third parties, ten of whom are current District employees and two of whom
appear to be former District employees, to appear for depositions after the close of fact
discovery would unduly burden the District and the third parties because it would require
those third parties and the District to expend time in preparing for and defending the
CASE 0:18-cv-02283-DSD-ECW Doc. 80 Filed 10/13/20 Page 19 of 21
depositions.9 See Marvin Lumber & Cedar, 177 F.R.D. at 445. The Court therefore
grants the District’s Motion for Protective Order insofar as the Court will deem the
twelve subpoenas Plaintiff served on current and former District employees in July and
August 2020 withdrawn. The Court will further grant the motion insofar as Plaintiff may
not serve any additional discovery (including requests for production of documents,
interrogatories, requests for admission, deposition notices, and subpoenas) in this action.
The District seeks sanctions under Federal Rule of Civil Procedure 16(f), which
provides that the Court may order sanctions if a party “fails to obey a scheduling or other
pretrial order,” and “must order the offending party ‘to pay the reasonable expenses—
including attorney’s fees—incurred because of any noncompliance with [Rule 16], unless
the noncompliance was substantially justified or other circumstances make an award of
expenses unjust,’” and Federal Rule of Civil Procedure 37(a)(5)(A), which provides that
a Court “must, after giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees.” (Dkt. 71 at 15 (quoting Fed.
The Court understands that Plaintiff believes that Mr. Baker and Ms. Bennett are
expert witnesses, but Plaintiff did not provide the identities or disclosures required for
experts as set forth in Federal Rule of Civil Procedure 26(a)(2)(B)-(C) by the June 30,
2020 deadline for doing so. (See Dkt. 64 at 1.) Plaintiff has not provided any
explanation as to why he did not comply with that deadline, nor has he provided any
evidence that he has retained Mr. Baker or Ms. Bennett to act as experts in this case. The
Court therefore will issue a protective order as to the subpoenas to Mr. Baker and Ms.
CASE 0:18-cv-02283-DSD-ECW Doc. 80 Filed 10/13/20 Page 20 of 21
R. Civ. P. 16(f)(1)(A)10, Fed. R. Civ. P. 16(f)(2), Fed. R. Civ. P. 37(a)(5)(A)).) The
District contends that sanctions are necessary because the Plaintiff’s issuance of
subpoenas after the deadline made it “necessary for the District to file its own motion.”
Under the circumstances here, the Court declines to award sanctions. While
Plaintiff’s pro se status and the circumstances of this case do not provide a basis for
extending the fact discovery deadline, the Court finds that Plaintiff’s attempts to
prosecute his case by seeking these depositions does not constitute the willful
disobedience of a scheduling order that would warrant sanctions. The Court further finds
that in view of Plaintiff’s pro se status, the COVID-19 pandemic, and the fact that the
parties were engaged in discussion about the production of documents up to and
including April 2020, Plaintiff’s conduct in serving the deposition notices and seeking
relief from the Court once informed of the District’s position in July 2020 was
substantially justified. For these reasons, the District’s request for sanctions is denied.
Accordingly, based on the files, records, and proceedings herein, IT IS
Plaintiff Daniel Coleman’s Motion to Extend Time to Complete Fact
Discovery (Depositions) (Dkt. 68) is DENIED.
The District cited paragraph (f)(1)(A) of Rule 16 (Dkt. 71 at 15), but the quoted
language comes from paragraph (f)(1)(C), see Fed. R. Civ. P. 16(f)(1)(C).
CASE 0:18-cv-02283-DSD-ECW Doc. 80 Filed 10/13/20 Page 21 of 21
Minneapolis Public School’s Motion to Quash Subpoenas and for a
Protective Order (Dkt. 69) is GRANTED IN PART insofar as it seeks a
protective order, as set forth in paragraphs 3 and 4 above, and DENIED IN
PART insofar as it seeks an order quashing the subpoenas.
The twelve subpoenas served by Plaintiff Daniel Coleman in July and
August 2020 are deemed WITHDRAWN.
Plaintiff Daniel Coleman may not serve any other discovery (including
requests for production of documents, interrogatories, requests for
admission, deposition notices, and subpoenas) in this matter.
Minneapolis Public School’s request for sanctions is DENIED.
DATED: October 13, 2020
s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
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