Exmark Manufacturing Company Inc. v. Briggs & Stratton Power Product Group
Filing
856
MEMORANDUM AND ORDER - that Plaintiff's motion to amend the scheduling order, (Filing No. 813 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EXMARK MANUFACTURING COMPANY
INC.,
8:10CV187
Plaintiff,
MEMORANDUM AND ORDER
vs.
BRIGGS & STRATTON POWER
PRODUCTS GROUP, LLC, SCHILLER
GROUNDS CARE, INC., and BRIGGS &
STRATTON CORPORATION,
Defendants.
This matter is before the court on Defendant Briggs & Stratton Corp.’s
(“Briggs”) motion to amend the scheduling order. (Filing No. 813). For the following
reasons, Defendant’s motion will be denied.
BACKGROUND
The relevant procedural history set forth in the court’s prior orders, including
its order denying Defendant’s motion to transfer venue, (Filing No. 754), and its
order granting Plaintiff’s motion to enforce the scheduling order. (Filing No. 788), is
incorporated by reference and will not be repeated here.
On October 5, 2018, this Court issued a Protective Order prohibiting
Defendant from enforcing third-party subpoenas served on MTD Products, Inc.
(“MTD”) and Husqvarna Professional Products, Inc. (“Husqvarna”). The
undersigned magistrate judge held the parties’ jointly suggested and courtapproved post-remand scheduling order did not re-open discovery beyond its
express terms, and those terms did not include depositions of third parties. The
court’s order further stated:
Defendant has not moved to amend the scheduling order, but even if
it had, any after-the-fact effort to modify the scheduling order would
fail as a matter of law. . . . Defendant has failed to show due diligence:
Defendant knew Plaintiff intended to rely on the MTD and Husqvarna
agreements and their application to the damages analysis since at
least May 7, 2018. . . . And even assuming a finding of due diligence,
Plaintiff will be prejudiced by Defendant’s late discovery attempts. The
pretrial conference is scheduled for October 16, 2018, the parties
must exchange exhibit lists by October 2, 2018, and motions in limine
are due on October 11, 2018. Defendant’s proposed additional
discovery will not only unduly interfere with Exmark’s trial preparation,
it will disrupt the court’s case progression order and calendar.
(Filing No. 788, at CM/ECF pp. 8-9) (internal citations omitted).
Defendant has filed an objection to that order (Filing No. 812), along with the
motion to amend the scheduling order addressed in this memorandum and order.
(Filing No. 813). As explained in Defendant’s brief,
Briggs is filing objections to the Court’s decision on Exmark’s motion
today, along with Briggs’s motion for amended scheduling order.
Briggs does not wish to burden the Court with unnecessary motion
practice. But to the extent that Briggs’s previous request to amend the
Scheduling Order was denied as “improper,” Briggs is filing this
motion such that the Court can rule definitively, so as to preserve all
appellate remedies, as necessary.
(Filing No. 815, at CM/ECF p. 4).1
My prior order did not deny Defendant’s request to amend the scheduling order
on only procedural grounds. Although Defendant’s request to extend the deadlines was
not previously mentioned in any motion, it was argued in the parties’ briefing. The court
has discretion to address arguments that were briefed but not raised by formal motion. I
chose to address the merits of Defendant’s request to extend the scheduling order
deadlines, applying Rule 16(b)(4)’s good cause standard. While Defendant’s current
motion now formally requests an extension of the scheduling order, it appears more akin
to a motion to reconsider my prior ruling. Nonetheless, this memorandum and order will
again address Defendant’s arguments.
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2
STATEMENT OF FACTS
The parties’ “Joint Stipulation for Scheduling Order to Trial,” (Filing No. 709),
described the permitted post-remand supplemental fact discovery as follows:
On or before April 13, 2018 the parties shall supplement document
production and written discovery responses relevant to the GeorgiaPacific factors. Supplementation shall be limited to documents and
facts arising since the close of fact discovery.
Each party may take one deposition regarding supplemental
discovery. The depositions shall be in accordance with Fed. R. Civ.
P. 30(b)(6) and shall be completed on or before May 11, 2018.
(Filing No. 709, at CM/ECF p. 1; Filing No. 710, at CM/ECF).
In April 2018, as part of its obligation to “supplement document
production. . . relevant to the Georgia-Pacific factors,” Exmark produced MTD and
Husqvarna license and settlement agreements. (Filing No. 778). Some of these
documents were produced two-weeks after the supplementation deadline. (Filing
No. 778). Briggs states it first learned of these agreements and of Exmark’s
accusations of infringement of the ‘863 patent against MTD and Husqvarna when
it received Plaintiff’s document production in April of 2018. (Filing No. 780).
On May 1, 2018, Briggs corresponded with Exmark to ask whether it
intended to rely on the MTD and/or Husqvarna agreements in any way in litigation.
If so, Briggs indicated that it would seek further discovery on these agreements.
(Filing No. 778-3). On May 7, 2018, Exmark responded that it anticipated its expert
witness, Bennis, would discuss the agreements in her upcoming report. (Id).
Rather than ask Exmark if it would stipulate to amend the scheduling order
to permit additional discovery, Briggs filed notices of intent to serve subpoenas on
MTD and Husqvarna on May 7, 2018. (Filing No. 733-1, 733-2). The document
and deposition topics Briggs sought from these third-parties were expressly “not
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limited by time or geography.” (Filing No. 733-1, at CM/ECF p. 46; Filing No. 7332, at CM/ECF p. 24).
On May 18, 2018, Exmark wrote to Briggs to object to the subpoenas, stating
they violated the scope of discovery permitted under the scheduling order.
Specifically, the letter stated:
The narrow scope of supplemental discovery authorized by the Court
is limited to the "the parties" and their supplementation of "document
production and written discovery responses relevant to the GeorgiaPacific factors." Moreover, such supplementation "shall be limited to
documents and facts arising since the close of fact discovery." In
addition, Briggs is limited to a maximum of "one deposition regarding
supplemental discovery," which "shall be completed on or before May
11, 2018." The Order does not allow Briggs to seek third-party
discovery of any kind, much less of the type and scope sought in these
subpoenas.
(Filing No. 772-6). Exmark requested a meet and confer discussion with Briggs if
Briggs intended to pursue the subpoenas despite Exmark’s objections.
During a meet and confer call between the parties on May 23, 2018, Briggs
stated it did not intend to withdraw its subpoenas. The defendant argued the
scheduling order governed only the parties’ obligations to each other. (Filing No.
780 at CM/ECF p.4; See also, Filing No. 709 at CM/ECF p. 1 (“the parties shall
supplement document production and written discovery responses . . .”). Briggs,
therefore, contended that it was not in violation of Federal Rule of Civil Procedure
16. At the end of the call, Exmark suggested scheduling a date and time to continue
the conversation, but Briggs advised it was not prepared with its calendar to do so.
Briggs stated it would get back to Exmark with a suggested date to continue the
meet and confer process. Later that same day, in a follow-up email recapping the
first meet and confer discussion, Exmark again reiterated its concerns:
4
Exmark was surprised to learn of these subpoenas, given that they
are not authorized by any Court Order or Federal Rule governing this
case . . . . To the extent that Briggs believed it was entitled to more
information about the MTD and Husquvarna settlement/license
agreements, we would have expected you to raise that issue with us
to determine whether an agreement could be reached . . . . Having
not even attempted to work with Exmark on this matter, Briggs has
created an unnecessary burden and distraction for parties and non‐
parties, alike. Nevertheless, Exmark is willing to continue the meet
and confer process in an effort to see if a reasonable resolution on
this issue can be reached.
(Filing No. 772-7).
Contrary to the parties’ agreement at the close of the May 23, 2018
conference, Briggs did not contact Exmark to schedule additional meet and confer
discussions regarding the third-party subpoenas. Rather, Briggs continued to
contact the third-parties, Husqvarna and MTD, as to compliance with the
subpoenas. (See Filing No. 778; Filing No. 780). On June 25, 2018, Exmark
reinitiated the conversation with Briggs as to the subpoenas, reinstating its prior
objections. (Filing No. 772).
On June 29, 2018, Briggs again responded that it did not intend to withdraw
its subpoenas to Husqvarna or MTD. As to Exmark’s continued objection that the
subpoenas violated the post-remand scheduling order, Briggs responded:
This is incorrect. As I explained during our meet and confer, the Joint
Stipulation contemplates only the parties’ obligations to each other; it
does not prohibit either party from pursuing third-party discovery as
Briggs did here.
(Filing No. 771-1).
In early July 2018, Exmark suggested that the parties meet and confer again
to discuss whether a compromise could be reached by narrowing the scope of
permissible discovery as to the MTD and Husqvarna agreements. No compromise
5
was reached during this call. Following the parties’ meet and confer discussion,
Exmark, “in the interest of finding a resolution to [the] issue,” proposed an
agreement to “stipulate to an amendment to the Scheduling Order that would allow
Briggs to seek documents from MTD and Husqvarna in . . . three categories”:
Communications and documents regarding the ‘863 patent and the
agreements between Exmark and MTD / Husqvarna insofar as those
agreements relate to the ‘863 patent,
Documents sufficient to identify the MTD / Husqvarna mowers
accused of infringing the ‘863 patent and the design of the baffle /
deck on these mowers, and
Documents sufficient to identify alterations to the accused mowers’
baffles / decks because of Exmark’s allegations of infringement and
the cost of these alterations, if any.
(Filing No. 772-9). Directly below these terms, Exmark stated that “[i]f Briggs
is not willing to compromise in this way, please advise us of that so we can seek
the assistance of the Court.” (Id). Briggs never responded to Exmark’s
correspondence and continued to seek the subpoenaed information from MTD and
Husqvarna.
On September 7, 2018, Exmark moved “To Enforce Scheduling Order and
for a Protective Order.” (Filing No. 768). The motion was fully submitted on
September 28, 2018, and the undersigned magistrate judge granted the motion on
October 3, 2018. (Filing No. 787).
The pretrial conference was held, as previously scheduled, on October 16,
2018. (Filing No. 802).
Briggs filed the pending motion to amend the scheduling order on October
19, 2018. (Filing No. 813).
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ANALYSIS
A scheduling order may be modified “for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). In making this determination, the court considers
the movant's level of diligence and the degree of prejudice to the parties when
assessing whether good cause exists. The movant may be considered diligent if, in
fairness, the existing schedule cannot be met due to “newly discovered facts” or
“any other changed circumstance after the scheduling deadline.” Fed. Ins. Co., 320
F.R.D. at 196-97 (citing Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir.
2012)). The extent of prejudice to either party is considered only following a
requisite threshold finding of due diligence.2 Sherman v. Winco Fireworks, Inc., 532
F.3d 709, 716-17 (8th Cir. 2008); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748,
759 (8th Cir. 2006).
The timeliness of discovery motions is an important consideration. A party’s
position may very well be “weaken[ed] or undermin[ed]” when there have been long
delays in requesting discovery, or in requesting remedies when discovery requests
have gone unanswered. Fed. Prac. & Proc. Civ. § 2285 (3d ed.). Generally, belated
discovery motions, especially those foisted on the court during the final trial
preparations, are not favored. Id. Courts often deny discovery motions when faced
with looming trials and a pattern of delayed discovery requests and extensive
motion practice. Mercantile Tr. Co. Nat. Ass'n v. Inland Marine Prod. Corp., 542
F.2d 1010, 1013 (8th Cir. 1976) (reasoning, in context of amending complaint, that
parties’ “leisurely approach to discovery” counseled against further delay of trial);
Haviland v. Catholic Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040, 1044
Briggs argues the court should grant its motion because “the discovery
sought is directly relevant and necessary to Exmark’s damages case” and will not
prejudice Exmark. (Filing No. 851, at CM/ECF pp. 2-4, 9-10). However, having
failed to demonstrate a threshold showing of due diligence, Briggs leaves no room
for the court to consider prejudice, or the lack thereof.
2
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(S.D. Iowa 2010) (“[d]iscovery is meant to be a balanced and, hopefully, frontloaded process, not one involving deadline brinkmanship”).
Here, Briggs knew as early as April 2018 that MTD and Husqvarna may be
sources of additional information relevant to this case. (Filing No. 778). Briggs
claims it believed the parties had “negotiated a partial resolution by agreeing to the
reduced scope of Brigg’s document subpoena” during the second meet and confer,
but despite the parties’ understanding, Exmark “filed [its] motion [to enforce the
Scheduling
Order
and
for
a
Protective
Order
without
any
additional
correspondence.” (Filing No. 777, at CM/ECF p. 11). (Filing No. 777, at CM/ECF p.
11). In essence, Briggs claims it was “sandbagged” by Exmark; that Exmark is
backing away from its earlier agreement and leaving Briggs without the evidence it
needs for trial.
The court’s record belies this characterization. The dispute between the
parties began over six months ago. Based on the evidence of record, on May 7,
2018, Briggs filed notices of subpoenas on MTD and Husqvarna. On May 18, 2018,
Exmark served its objections to Briggs’ subpoenas as beyond the scope of the
scheduling order, while Defendant adhered to its belief that the current scheduling
order permitted unrestrained discovery from third-parties.
Exmark and Briggs held their second meet and confer session on July 13,
2018. Exmark’s email to Briggs summarizing the outcome of that session
suggested narrowing the scope of the third-party subpoenas, concluding:
Although the subpoenas Briggs served violate the Joint Stipulation for
Scheduling Order to Trial (Dkt. 709) and at least Federal Rules of Civil
Procedure 16 and 26, in the interest of finding a resolution to this issue
Exmark would be willing to stipulate to an amendment to the
Scheduling Order that would allow Briggs to seek documents from
MTD and Husqvarna in the three categories identified above.
However, any continued effort by Briggs to depose these third parties
not only violates the Scheduling Order and the aforementioned Federal
8
Rules, it is harassing and unduly burdensome for everyone involved.
Exmark believes that the Court would agree and issue a Protective
Order to that end.
Please advise if Briggs is willing to agree to resolve this issue with a
stipulated amendment to the Scheduling Order that would allow Briggs
to seek documents in the three categories identified above from MTD
and Husqvarna. If Briggs is not willing to compromise in this way,
please advise us of that so we can seek the assistance of the Court.
(Filing No. 772-9). Briggs did not respond to this communication or bring the matter
to the court’s attention for a ruling, apparently standing firm on its interpretation of
the scope of discovery permitted under the scheduling order.
Under the facts presented, the undersigned magistrate judge restates her
prior ruling; that is, I find Defendant has failed to show that after obtaining “newly
discovered facts,” it promptly presented the parties’ dispute over third party
discovery to the court for a ruling on the scope of discovery permitted under the
court’s scheduling order and, if necessary, for modification of that order. Promptly
raising the issue could have eliminated or limited the likelihood that remaining dates
within the scheduling order, including the trial and pretrial conference settings,
would be disrupted. Instead, Briggs’ late attempt, made only after the undersigned
magistrate judge ruled that Briggs’ interpretation of the scheduling order was
incorrect, places the current trial date in jeopardy and it requests leave to perform
third party discovery after the pretrial conference was already held.
Furthermore, contrary to Briggs’ claim, “Failure to object to issuance of a
subpoena to a nonparty does not preclude an adverse party from moving for a
protective order under Federal Rule of Civil Procedure 26(c).” NECivR 45.1(c).
Therefore, Briggs’ argument that “Exmark did not avail itself of the objection
procedure provided for in Nebraska Civil Rule 45.1(b)” has no bearing on the instant
matter. (Filing No. 851, at CM/ECF p. 8). Although Exmark’s written objections to
Briggs notice of subpoenas on MTD and Husqvarna were served four days late,
9
Briggs has offered no proof to support its conclusory statement that but for this
delay “this dispute would have been resolved months ago.” (Filing No. 851, at
CM/ECF p. 8).3
Citing Gilkerson v. Nebraska Colocation Centers, L.L.C, No. 8:15CV37, 2017
WL 6209827, at *2 (D. Neb. Dec. 7, 2017), Defendant further argues “that four
months’ time, even if unexplained . . . does not necessarily demonstrate a lack of
diligence—especially when considering that this case has been pending for nearly
eight-and-one-half years.” (Filing No. 815, at CM/ECF p. 13). But in Gilkerson,
following remand from the Federal Circuit, a scheduling conference was held on
August 22, 2017. Only a month later, the undersigned was notified of a discovery
dispute over a newly filed parallel lawsuit and its potential impact on the discovery
in Gilkerson. Following expedited briefing, the court held that the moving party was
diligent. Unlike the present case, the moving party’s prompt notice of the dispute
had afforded a prompt resolution by the court, thus only minimally disrupting the
discovery deadline in the scheduling order and causing no anticipated disruption of
the remaining scheduling order deadlines, or the pretrial conference and trial
settings.
Briggs further argues the Court should now grant its motion to amend the
scheduling order because Defendant was merely trying “to avoid motion practice
before this Court.” (Filing No. 815, at CM/ECF p. 10). The defendant argues that it
did not “immediately move to modify the Scheduling Order” because (1) it “believed
3
Objections under NECivR 45.1(b) are to be served on the party proposing
service of third party subpoenas. These objections need not be and are not
typically filed of record with the court except as evidence in support of an
unresolved motion for protective order or to compel compliance with the
subpoenas. Thus, the failure to file a motion for court resolution, not the four-day
delay in serving objections to the subpoenas, is the source of delay in obtaining a
ruling on the current dispute.
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that its subpoenas were proper under the current Scheduling Order”; and (2) Briggs
was “negotiating the scope and terms of the subpoenas with MTD and Husqvarna”
. . . while simultaneously participating in meet and confer sessions with Exmark. Id.
In support of this argument, Defendant encourages this court to adopt the reasoning
set forth by the Minnesota district court in Cannon Technologies, Inc. v. Sensus
Metering Systems. Id., No. 08-CV-6456 (RHK/LIB), 2010 WL 11561192, at *3 (D.
Minn. Dec. 1, 2010).
The court is unconvinced. In Cannon, the Minnesota court held the movant
had acted with reasonable diligence despite the resultant delay because Cannon
did not learn, and could not have learned, of the importance of certain testimony
until opposing counsel submitted its affidavit in support of summary judgment on
August 2, 2010, the day after the discovery deadline; Cannon then moved to strike
the affidavit on August 9, 2010, but that motion was denied; less than a month later,
Cannon asked opposing counsel’s permission to depose the affiant, but that
request was denied; and thereafter, Cannon immediately filed a motion to compel
and a motion to amend the scheduling order. Under such facts, the Minnesota
district court found “Cannon acted reasonably promptly and did not unnecessarily
delay in filing its motion” because at all times during the discovery phase it had
actively undertaken the proper sequence of measures to resolve the discovery
dispute.
Here, as early as May 18, 2018, Exmark objected to Briggs’ notice of intent
to serve third party subpoenas. Meet and confer sessions were held in May and
early July, and the first this court knew of any discovery dispute was September 7,
2018 (only six weeks before the pretrial conference)—and then only upon the
motion to enforce the scheduling order filed by Exmark. Due to the disparate facts
at issue, Cannon’s holding is inapplicable to this case.
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Briggs argues that it was attempting to “avoid motion practice before this
Court.” (Filing No. 777, at CM/ECF p. 17). While the court strongly encourages all
parties to engage in informal resolution of discovery disputes before resorting to
court intervention, Briggs cannot validly assert that when those efforts fail, the
undersigned magistrate judge cannot be promptly contacted for a hearing or written
ruling. More importantly, when the parties’ efforts to resolve the dispute failed on
July 13, 2018, Briggs went silent. Neither Exmark nor the court were further
contacted for a resolution. Based on this record, it appears Briggs was confident in
its interpretation of the scope of third party discovery permitted under the
scheduling order, and with that interpretation, it concluded no motion practice was
necessary.
Contrary to Briggs’ argument, the undersigned magistrate judge has found
that the post-remand scheduling order did not permit third party subpoenas. That
order is now on appeal. And as explained above and in my prior order, I further find
Briggs has failed to show the good cause required under Rule 16(b)(4) for
modification of the post-remand scheduling order.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to amend the scheduling order, (Filing
No. 813), is denied.
November 14, 2018.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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