Rodriguez v. Peak Pressure Control, LLC et al

Filing 37

REPORT AND RECOMMENDATIONS by Magistrate Judge Karen B. Molzen re 25 Plaintiff's Corrected MOTION to Extend Scheduling Order Deadlines and For Leave to File Second Amended Complaint. Objections to R&R due by 6/19/2018. Ad d 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JACOB RODRIGUEZ,
Plaintiff,
vs.

CIV 17-0576 JCH/KBM

PEAK PRESSURE CONTROL, LLC, &
NINE ENERGY SERVICES, LLC,
Defendants.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Plaintiff’s Corrected Motion to Extend
Scheduling Order Deadlines and for Leave to File Second Amended Complaint
(Doc. 25) (“Corrected Motion”). On May 15, 2018, the Honorable Judith C. Herrera
referred this motion to me for a recommended disposition. Doc. 29. Having reviewed the
parties’ submissions and all pertinent authority, the Court recommends granting in part
and denying in part Plaintiff’s Corrected Motion.
I.

Background
This case arises from a dispute regarding overtime pay. Plaintiff filed his Original

Class Action Complaint on May 23, 2017 on behalf of “NM Class Members.” Doc. 1 at 2,
¶ 5. In their Joint Status Report, the parties suggested “[d]iscovery on issues necessary
for class certification purposes to be commenced in time to be completed by April 1,
2018.” Doc. 9 at 5. They further suggested that “[w]ithin 30 days of the outcome on
Plaintiff’s motion for class certification, the parties request permission to file a
provisional discovery plan for the Court’s consideration regarding any additional

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discovery that either party believes necessary to prepare the case for trial.” Doc. 9 at 5.
The Court entered a Scheduling Order on August 9, 2017, that was silent as to that
request and that set the deadline for Plaintiff to move to amend pleadings to December
15, 2017 and the termination date for factual discovery to April 1, 2018. Doc. 11. On
November 21, 2017, with leave of the Court and within the Scheduling Order’s deadline,
Plaintiff filed his First Amended Complaint. Docs. 20, 21.
On April 1, 2018, the same day discovery closed, Plaintiff filed his request to
extend the Scheduling Order and for leave to file a Second Amended Complaint.
Doc. 24. The next day, Plaintiff re-filed the same motion (Doc. 25) but with fewer
exhibits, in order to comply with the page limit in Local Rule 10.5.1 See Doc. 28. On May
21, 2018, Plaintiff moved to certify the class. Doc. 30.
II.

Legal Standard
Under Federal Rule of Civil Procedure 16(b)(4) a scheduling order may be

modified “only for good cause and with the judge’s consent.” “Rule 16(b) does not focus
on the bad faith of the movant, or the prejudice to the opposing party. Rather, it focuses
on the diligence of the party seeking leave to modify the scheduling order to permit the
proposed amendment.” Trujillo v. Bd. of Educ. of the Albuquerque Pub. Sch., No. CIV
02-1146 JB/LFG, 2007 WL 2296955, at *3 (D.N.M. June 5, 2007). “[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.” Walker v. THI of New Mexico at Hobbs
Ctr., 262 F.R.D. 599, 603 (D.N.M. 2009) (citing Fed. R. Civ. P. 16 advisory committee’s
notes to 1983 amendment).
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The Court advises Plaintiff’s counsel to review all the Local Rules for the United States District
Court for the District of New Mexico. Specifically, Plaintiff’s counsel should review the formatting
requirements in Local Rule 10.1 and the page length limitations in Local Rule 7.5.

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Under Federal Rule of Civil Procedure 15(a)(2), a plaintiff may only amend a
complaint at a later stage of litigation “with the opposing party’s written consent or with
the court’s leave.” Rule 15(a)(2) also advises that “[t]he court should freely give leave
when justice so requires.” In this case, the Scheduling Order required Plaintiff to move
to amend by December 15, 2017, yet Plaintiff did not make this motion for leave to
amend until April 1, 2018. It does not appear that the Tenth Circuit has addressed the
appropriate standard for motions to amend filed after the scheduling order deadline.
See, e.g., Minter v. Prime Equipment Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006).
Judges in this District, however, have held that “a motion to amend a pleading, filed
after the deadlines imposed by a scheduling order, is governed by the ‘good cause’
standard of Rule 16(b) rather than the more lenient Rule 15(a) standard.” Zuniga v.
Bernalillo County, Civ. 11-877 RHS/ACT, 2013 WL 12334141, at * 2 (D.N.M. Mar. 18,
2013) (citations omitted). “The moving party must first succeed in showing ‘good cause’
for modifying the Scheduling Order deadline for amending pleadings, then the Court will
apply Rule 15(a)(2) to determine if it would be appropriate to grant the Motion to
Amend.” Id. (citations omitted).
III.

Analysis
a. The Scheduling Order
Although Plaintiff requests that the Court extend the Scheduling Order deadlines

to allow him additional time to complete class certification discovery, he has not shown
good cause to justify such an extension. Specifically, he fails to demonstrate due
diligence under the current Scheduling Order deadlines.

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Plaintiff first argues that he needs additional time for class certification discovery
because “Defendants have refused to provide answers to basic written discovery in this
case.” Doc. 25 at 8. Defendants responded to Plaintiff’s First Set of Interrogatories and
Requests for Production on September 18, 2017. Docs. 25-3 at 19; 26-2. Addressing
objections in the discovery responses, Plaintiff’s counsel sent a good faith letter to
Defendants’ counsel on October 24, 2017 (Doc. 25-7), and another on November 13,
2017 (Doc. 25-6). Defendants’ counsel responded on December 29, 2017 (Doc. 26-3)
and on January 11, 2018 (Doc. 26-4). Plaintiff then did nothing further to address
Defendants’ objections and did not send any additional written discovery.
To the extent that Plaintiff now wishes to compel further responses to his original
written discovery, time has run out. See Doc. 27 at 3, 7, 9 (arguing Defendants’
September 18, 2017 objections to written discovery were improper). Under this District’s
Local Rules, “[a] party served with objections to an interrogatory [or] request for
production or inspection . . . must proceed under D.N.M.LR-CIV 37.1 within twenty-one
(21) days of service of an objection . . . .” D.N.M.LR-CIV 26.6. “Failure to proceed within
this time period constitutes acceptance of the objection,” but the Court may alter this
deadline on a showing of good cause. Id. Plaintiff did not file a motion to compel within
the required time nor did he request an extension of time to do so. Moreover, he also
fails to show good cause to allow him to do so now, more than six months after
receiving Defendants’ responses, other than arguing that he needs certain “withheld”
information.
Plaintiff also contends that he needs additional time to complete class
certification discovery because “[t]he Parties have also yet to take a single deposition in

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this case to obtain necessary discovery to move for Rule 23 class certification, evaluate
the claims and defenses, evaluate potential settlement, prepare dispositive motions and
prepare for trial.” Doc. 25 at 5. Yet the lack of discovery conducted does not indicate
that Plaintiff has been diligent in completing discovery within the Scheduling Order
deadlines; rather, it has the opposite impact.
Plaintiff explains that there is a related action pending against Defendants in the
Western District of Texas (“Texas case”), see Snively v. Peak Pressure Control, LLC,
No. 7:15-cv-134-DC (W.D. Tex.), and that the parties have agreed to use discovery
from the Texas case in this action. Doc. 25 at 5-6. Plaintiff contends that more time for
certification discovery is needed here because Defendants have provided piecemeal
discovery responses in the Texas case only recently produced thousands of documents
in the that case. Doc. 25 at 10-11. While the Court appreciates Plaintiff’s desire not to
duplicate discovery between the two cases, and certainly encourages cost-saving
measures, Plaintiff has not shown how discovery in the Texas case excuses his lack of
diligence in this case. This Court has no control over discovery in the Texas case, and
Plaintiff is obliged to diligently pursue the discovery he needs here under this Court’s
Scheduling Order.
Finally, Plaintiff argues, but Defendants dispute, “the parties in this action were
both under the mistaken impression that the Court had bifurcated discovery in this
action between class certification and merits discovery.” Doc. 25 at 4. But even
operating under this impression, Plaintiff had eight months to conduct certification
discovery. And, as discussed above, he has not shown the required diligence in
conducting such discovery in the instant case.

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While Plaintiff has not shown good cause to extend the discovery deadline for
class certification discovery, the Court acknowledges that, in the parties’ Joint Status
Report, they requested deadlines for only certification discovery, with a chance to
provide a provisional discovery plan for additional discovery after class certification is
decided. Doc. 9 at 5. Although not explicitly set forth in the Scheduling Order, the Court
has always intended to honor the parties’ request, and therefore will recommend that
the parties submit a provisional discovery plan on any additional needed discovery
within 30 days of the Court’s order on class certification.
b. Amended Complaint
Plaintiff also seeks leave to file his Second Amended Complaint in order to
change the class definition based on information learned during discovery. Doc. 25 at 3.
Plaintiff argues that he “should be allowed to amend [his] complaint as a result of
Defendants’ position that Plaintiff did not work as a ‘Pressure Control Operator,’ but
rather as a ‘Field Service Trainee’ during his employment.” Doc. 25 at 5 (citing Doc. 253 at 4-5). However, Plaintiff learned this information on September 18, 2017 when
Defendants responded to Plaintiff’s First Set of Interrogatories. Under the Scheduling
Order, Plaintiff then had until December 15, 2017 to move to amend his pleading.
Instead, he waited until April 1, 2018 to request leave to amend.
Plaintiff contends that he has “only recently been able to obtain deposition
testimony necessary to redefine the class as employees ‘that perform pressure control
work’ rather than ‘pressure control operators’ . . . .” Doc. 25 at 13. But he provides no
information on this deposition, such as how recently it was taken or why it was only
taken recently. Under Rule 16, he has not shown good cause to modify the amendment

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deadline in the Scheduling Order. The Court, therefore, does not need to address the
second step of the inquiry, amendment under Rule 15(a)(2), and recommends denying
Plaintiff’s request to file his Second Amended Complaint.
Wherefore,
IT IS HEREBY RECOMMENDED that Plaintiff’s Corrected Motion (Doc. 25) is
granted in part and denied in part. The Court recommends:
(1) denying Plaintiff’s request for leave to file his Second Amended Complaint;
(2) denying Plaintiff’s request for additional time to conduct class certification
discovery;
(3) requiring the parties to submit a provisional discovery plan on any additional
needed discovery within 30 days of the Court’s order on class certification.

_______________________________________
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.

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