Bethea v. Access Bank

Filing 29

ORDER sustaining 24 Defendant's Objection and denying 23 Motion to Extend the written discovery deadline. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NATHANIEL D. BETHEA, an individual;
8:17CV135

Plaintiff,
vs.

ORDER
ACCESS BANK, a Nebraska bank;
Defendant.
Plaintiff has moved to extend the written discovery deadline, explaining
Plaintiff’s counsel inadvertently failed to timely serve Plaintiff’s discovery
requests. (Filing No. 23, at CM/ECF p. 2). Plaintiff further argues that written
discovery served by Defendant on February 5, 2018 is untimely. In response,
Defendant argues: 1) Plaintiff has failed to prove good cause for extending the
discovery deadline; 2) Defendant’s supplemental written discovery served on
February 5, 2018 was timely; and 3) even if discovery must be served sufficiently
in advance to demand a response before the written discovery deadline,
Defendant had good cause for untimely serving the supplemental written
discovery because it follows up on matters first raised during Plaintiff’s
deposition, and Plaintiff delayed setting that deposition for over two months.

ANALYSIS

A case progression order was entered on September 1, 2017. (Filing No.
12). Under the terms of that order, the “deadline for completing written discovery
under Rules 33 through 36 of the Federal Rules of Civil Procedure [was]
February 5, 2018,” with “[m]otions to compel Rule 33 through 36 discovery must
be filed by February 19, 2018.” (Filing No. 12, at CM/ECF p. 2 (emphasis

added)). Pursuant to Rule 16(b)(4), a case management order setting
progression deadlines “may be modified only for good cause and with the judge's
consent.” Fed. R. Civ. P. 16(b)(4). The movant's level of diligence and the degree
of prejudice to the parties are both factors to consider when assessing if good
cause warrants extending a case management deadline, with the movant’s
diligence being the first consideration and the extent of prejudice to either party
considered only following a requisite threshold finding of due diligence. 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).

Counsel’s inadvertence in failing to serve written discovery cannot support
a finding of due diligence. As such, Plaintiff’s motion to extend the written
discovery deadline must be denied.

As to Defendant’s supplemental discovery served on February 5, 2018, the
discovery was untimely under the court’s progression order. The order states
written discovery must be “completed,” not served, by February 5, 2018. But
even assuming Defendant’s supplemental written discovery was untimely served,
Defendant states the discovery (one Interrogatory and three Requests for
Production) concerns matters that arose out of Plaintiff's deposition testimony.
The evidence reflects Defendant began asking for dates to depose Plaintiff as
early as November 10, 2017, (Filing No. 24-3, at CM/ECF p. 2), and repeated
that request on November 27, 2017, (Filing No. 24-3, at CM/ECF p. 1); on
December 8, 2017, (Filing No. 24-5); and on December 12, 2017, (Filing No. 246). On December 12, 2017, Plaintiff provided a proposed date—January 11,
2018. Defendant confirmed January 11, 2018 would work, but was then advised
it did not work for Plaintiff’s counsel. The deposition was re-scheduled for

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January 22, 2018, but was delayed to January 29, 2018 due to weather. (Filing
No. 24-7).

Under the facts presented, the court finds Defendant acted with due
diligence in attempting to depose Plaintiff while allowing sufficient time thereafter
to timely serve additional written discovery as needed. The court finds Defendant
will be prejudiced if unable to obtain discovery which follows up on Plaintiff’s
testimony.

Accordingly,

IT IS ORDERED:

1)

Defendant’s objection, (Filing No. 24), is sustained, and Plaintiff’s

motion to extend, (Filing No. 23), is denied.

2)

Defendant’s discovery served in February 5, 2018 is deemed timely

served, and Plaintiff must respond to this discovery. Any motion to compel
Plaintiff’s responses to the February 5, 2018 discovery shall be filed on or before
March 21, 2018.
Reminder: Motions to compel shall not be filed without first contacting the
chambers of the undersigned magistrate judge to set a conference for discussing
the parties’ dispute.
February 24, 2018.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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