DeBuff v. Walgreen Co.

Filing 30

ORDER denying 21 Motion to Compel Discovery/Disclosures. Signed by Judge Donald W. Molloy on 10/5/2016. (NOS, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MARSHA DeBUFF,
Plaintiff,
ORDER

vs.
WALGREEN COMPANY,
Defendant.

Plaintiff seeks an order compelling disclosures and discovery. (Doc. 21).
Defendant opposes the motion. (Doc. 24).
A preliminary pretrial conference order issued in this case on October 14,
2015. (Doc. 5). Paragraph 7 of the order provides that the parties "may agree
among themselves to extend discovery," but that "the discovery deadline set by the
Court will not be continued, nor will the Court entertain discovery motions based
on post-deadline occurrences." Id. (emphasis in original). On December 11,
2015, the Court issued a scheduling order following a pretrial conference. (Doc.
14). It provided a discovery deadline of July 1, 2016, and a motions deadline of
July 29, 2016. Id. at ~ 1. It also provided that "parties seeking a continuance of
the motions deadline or any subsequent deadline must file a motion with the
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Court" and that "[s]uch motions will not be granted absent compelling
reasons, which do not include delay attributable to the parties' stipulated
extensions." Id. (emphasis in original).

Rule 16(b)(3)(A) of the Federal Rules of Civil Procedure states that a
scheduling order "must limit the time to join other parties, amend the pleadings,
complete discovery, andfile motions" (emphasis added). As the Court has
already noted in this case, (see Doc. 20), Rule 16(b)(4) requires "good cause" be
shown for modification of the scheduling order, while Local Rule 16.3(b)(l)
further requires "extraordinary circumstances" also be present. "[C]arelessness is
not compatible with a finding of diligence and offers no reason for a grant of
relief." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
As required by Rule 16(b)(3)(A), the scheduling order provided a series of
deadlines to which both parties agreed. Plaintiff has already failed to show the
requisite "good cause" for a modification of the scheduling order. (Doc. 20.)
Plaintiff again asks the Court to modify the scheduling order to accommodate a
lack of diligence. However, the rationale plaintiff's counsel proffers to support
the modification has shifted markedly. Where plaintiff's counsel initially
described "uncharacteristic cordiality and good faith attempts to resolve the
discovery issues between the parties," (Doc. 16-1 at ~ 6), he now argues "it is
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obvious defendant is gaming this case and has abandoned the principals of seeking
and finding truth and justice," (Doc. 21-1at~17). 1 This unexplained about-face
undermines both his initial and current argument. Plaintiff was fully aware of
discovery difficulties well in advance of the discovery deadline, but allowed that
deadline, and the motions deadline, to pass without notice. See Doe ex rel. Doe v.
State ofHawaii Dept. ofEduc., 351 F. Supp. 2d 998, 1008 (D. Hawai'i 2004)

(finding no "good cause" where movants were fully aware of arguments made in
untimely motion before they agreed to the deadlines set forth in the district court's
scheduling order). The now objectionable discovery responses were served June
30, 2016, yet no action to compel was taken until the request to continue the trial
date was denied. My examination of the responses, even as explained in
defendant's response to the motion to compel, is that far more detailed answers
could have been given. But I am still left with the belief there has been no good
cause shown to alter the dates that the parties and the Court set at the pre-trial
conference in this case.
Plaintiffs motion is untimely and beyond the date set to complete discovery
or to file motions.
1

At the hearing concerning Plaintiffs Motion to Continue, plaintiffs
counsel again asserted the parties had been working together in a collegial manner
to resolve their discovery disputes. (See Doc. 19, Minute Entry.)
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ACCORDINGLY, IT IS ORDERED that Plaintiffs motion (Doc. 21) is
DENIED.
DATED this

sf"d~y of October, 2016.

Donald W. ollo , District Judge
United Stat~s Dis ict Court

l

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