CMAC, Inc. v. City of Omaha

Filing 32

ORDER denying without prejudice 31 Joint Stipulation to Continue. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CMAC, INC.,
Plaintiff,

8:11CV337

vs.
ORDER
CITY OF OMAHA,
Defendant.
This matter is before the court on the parties’ Joint Stipulation to Continue (Filing
No. 31). The complaint was filed on August 28, 2011, in the District Court of Douglas
County, Nebraska, and removed to this court on September 28, 2011. See Filing No. 1.
After entering a show cause order reminding the parties of their obligation to file a Rule
26(f) planning report, the court filed the initial progression order, on December 21, 2011,
authorizing the parties to begin discovery. See Filing Nos. 15, 17. On March 30, 2012,
the court filed the Order Setting Final Schedule for Progression of Case, scheduling
discovery, summary judgment, and other deadlines along with trial. See Filing No. 23.
Approximately three months prior to the scheduled trial, the parties moved to continue
all deadlines by ninety days because “discovery is not complete,” “at least eight (8)
depositions are contemplated,” “[n]one of the planned depositions have yet been
scheduled,” the parties anticipated motions, evidentiary hearings, and a separate
Daubert motion, and the parties wanted to fully explore settlement. See Filing No. 26.
The court granted the extension moving trial from December 2012 to April 2013. See
Filing No. 27.

Two weeks after the extended deposition deadline, the parties filed

another motion to extend deadlines, such motion was identical to the earlier motion.
See Filing No. 28. On February 15, 2013, the court granted the motion moving the
discovery deadline to May 1, 2013, and moving trial to August 19, 2013. See Filing No.
29. The February 15, 2013, Order stated, “No further extensions of the deadlines will
be granted except on a showing that, after an exercise of due diligence by the parties, a
manifest injustice would occur if a requested extensions were not granted.” Id.
On May 7, 2013, the parties filed the instant motion seeking a one-hundred
eighty day extension of all deadlines. See Filing No. 31. Again the motion is identical to

previous motions indicating “discovery is not complete,” “at least eight (8) depositions
are contemplated,” “[n]one of the planned depositions have yet been scheduled,” the
parties anticipated motions, evidentiary hearings, and a separate Daubert motion, and
the parties wanted to fully explore settlement. Id.
The court cannot grant the extension sought by the parties for three reasons.
First, Rule 16(b)(4) requires the parties to show good cause justifying any modifications
to a scheduling order. See Fed. R. Civ. P. 16(b); Bradford v. DANA Corp., 249 F.3d
807, 809-10 (8th Cir. 2001); see also Fed. R. Civ. P. 6(b)(1); Thorn v. Blue Cross &
Blue Shield of Fla., Inc., 192 F.R.D. 308, 309 (M.D. Fla. 2000) (“In demonstrating good
cause, the moving party must establish that the ‘scheduling deadlines cannot be met
despite a party’s diligent efforts.’”) (paraphrasing Fed. R. Civ. P. 16 advisory committee
notes (1983 amendment)). Here, the moving parties fail to provide good cause for the
inadequate discovery completed to date or the lengthy extension of time.

Second,

Rule 6(b)(1)(B) imposes a greater burden on counsel when the motion is filed after the
deadlines has expired. In addition to showing good cause, Rule 6 authorizes the court
to extend the parties’ deadline only “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). This rule
applies with respect to the parties’ discovery deadline. Again, the parties fail to provide
any explanation demonstrating excusable neglect. Finally, the parties fail to meet the
stringent standard set by the February 15, 2013, Order by explaining what diligent
efforts counsel undertook to comply with the deadlines or the likely manifest injustice
absent the lengthy extension. Accordingly, the parties’ Joint Stipulation to Continue
(Filing No. 31) is denied without prejudice.

IT IS SO ORDERED.

Dated this 8th day of May, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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