City of Las Cruces et al v. United States of America et al
Filing
333
ORDER by Magistrate Judge Gregory B. Wormuth granting 314 MOTION to Extend (other) Defendant American Linen Supply of New Mexico, Inc.'s Motion for Leave to Depose Plaintiffs City of Las Cruces and Dona Ana County Pursuant to Rule 30 (B)(6). (jls)
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CITY OF LAS CRUCES and
DOÑA ANA COUNTY,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
et al.,
Defendants.
Civ. No. 17‐809 JCH/GBW
ORDER GRANTING LEAVE TO DEPOSE PLAINTIFFS
THIS MATTER comes before the Court on Defendant American Linen Supply of
New Mexico, Inc’s Motion for Leave to Depose Plaintiffs City of Las Cruces and Doña
Ana County Pursuant to Rule 30(b)(6). Doc. 314. Having reviewed the Motion and the
attendant briefing (docs. 322, 329), the Court GRANTS the Motion and permits
Defendant American Linen Supply of New Mexico, Inc. (“American Linen”) to conduct
depositions of both Plaintiffs pursuant to Rule 30(b)(6).
I.
BACKGROUND
A detailed recounting of the factual and procedural history preceding this
Motion may be found in the Court’s order issued on February 1, 2021. Doc. 304 at 2–6.
The most pertinent facts are as follows: On May 29 and 30, 2019, Plaintiffs’ corporate
representatives were deposed by Defendant United States pursuant to Federal Rule of
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 2 of 10
Civil Procedure 30(b)(6). Id. at 4. Lead counsel for American Linen consented to the
depositions going forward on those dates despite his unavailability, apparently under
the belief that Plaintiffs had consented to sit for second depositions taken by American
Linen. Id. at 3–4. In August 2019, the parties discussed but evidently did not come to
any firm agreement on conducting (or scope) of any second depositions of Plaintiffs. Id.
at 4–5. On August 21, 2019, the case was stayed through July 17, 2020. Id. at 5.
American Linen noticed depositions on Plaintiffs’ corporate representatives on
September 25, 2020. Id. On October 2, 2020, Plaintiffs moved to quash and for a
protective order against these depositions. Id. at 6. Discovery officially closed on
October 9, 2020. Id.
In the Court’s February 1 order, the Court, inter alia, granted a protective order to
Plaintiffs to prevent the taking of second depositions without the Court’s leave. Id. at
65. The Court held that Rule 30(b)(6) is subject to the limitation on second depositions
expressed in Rule 30(a)(2)(A)(ii). Id. at 13–19. Federal Rule of Civil Procedure
30(a)(2)(A)(ii) requires that a party must seek the Court’s leave before taking a second
deposition, unless the parties have stipulated to it. Because American Linen had not
sought the Court’s leave, the Court held that it could not proceed with the noticed
second depositions. Id. at 28–34. In so holding, the Court rejected American Linen’s
contention that Plaintiffs had stipulated to sitting for second depositions, finding
insufficient evidence that Plaintiffs ever made such a stipulation. Id. at 29. Although
2
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 3 of 10
the Court granted protective orders, it did so expressly without prejudice to the parties
seeking the Court’s leave to take second depositions. Id. at 34, 65.
American Linen filed the present Motion on February 16, 2021, seeking the
Court’s leave to take second depositions of Plaintiffs’ corporate representatives. Doc.
314. Plaintiffs filed a response in opposition on March 2, 2021. Doc. 322. American
Linen filed a reply on March 16, 2021. Doc. 329.
While the dispute over second depositions was ongoing, the Court granted
Plaintiffs leave to file a Second Amended Complaint, which asserts a new theory of
liability against American Linen. Doc. 303. On March 22, 2021, the Court reopened
discovery limited to this new theory of liability. Doc. 332.
II.
LEGAL STANDARDS
A. Rule 16(b)(4)
Under Federal Rule of Civil Procedure 16(b)(4), the Court may only modify its
discovery schedule if good cause is shown. See Fed. R. Civ. P. 16(b)(4). Nonetheless,
“total inflexibility is undesirable.” Summer v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604 (10th
Cir. 1997) (citing Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir. 1987) and Fed
R. Civ. P. 16 advisory committee’s note). Courts have considered combinations of the
following factors when determining whether a movant has established good cause for
reopening discovery:
1) whether trial is imminent, 2) whether the request is opposed, 3)
whether the non‐moving party would be prejudiced, 4) whether the
3
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 4 of 10
moving party was diligent in obtaining discovery within the guidelines
established by the court, 5) the foreseeability of the need for additional
discovery in light of the time allowed for discovery by the district court,
and 6) the likelihood that the discovery will lead to relevant evidence.
Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).
In the Tenth Circuit and many of its sister circuits, the movant’s diligence is the
most paramount Smith factor. See, e.g., Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n,
771 F.3d 1230, 1240 (10th Cir. 2014); Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir.
2011); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000); Sosa v. Airprint
Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998); Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 609 (9th Cir. 1992). It “requires the movant to show the ‘scheduling deadlines
cannot be met despite [his] diligent efforts.’” Gorsuch, 771 F.3d at 1240 (quoting Pumpco
v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2018)).
B. Rule 6(b)
Rule 6(b) provides the general standard for extending time of “an act [that] may
or must be done within a specified time.” Fed. R. Civ. P 6(b)(1). It reads as follows:
When an act may or must be done within a specified time, the court may,
for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is
made, before the original time or its extension expires; or
(B) 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) (emphasis added). The applicable standard for extension under
Rule 6(b) therefore depends on whether the request is made prior or subsequent to the
4
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 5 of 10
deadline. In either case, a showing of good cause is required. See Utah Republican Party
v. Herbert, 678 F. App’x 697, 700 (10th Cir. 2017) (unpublished). However, if the request
is made after the deadline has already passed, the moving party must also satisfy the
excusable neglect standard. See id. (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 873
(1990)).
III.
ANALYSIS
American Linen presents two alternative arguments for granting leave to
conduct second depositions of Plaintiffs’ corporate representatives. Doc. 314. First,
American Linen asks the Court to reconsider its previous finding on whether the parties
stipulated to the second depositions. Id. at 3–5. Second, American Linen contends that
it satisfies the good‐cause and excusable‐neglect standards of Rules 6 and 16. Id. at 6–
12. As the additional materials presented by American Linen do not alter the Court’s
conclusion on the matter, the Court will not change its previous finding regarding the
absence of a stipulation. The Court does find that American Linen has established good
cause and excusable neglect.
A. Good Cause
Plaintiffs argue that each Smith factor favors denying American Linen leave to
conduct second 30(b)(6) depositions. Doc. 332 at 4. Their opposition to American
Linen’s request is clear. Additionally, foreseeability is in their favor. The
communications between the parties ought to have alerted American Linen to the fact
5
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 6 of 10
that Plaintiffs would have objections to the scope of the depositions if not the fact of
them. See, e.g., doc. 247‐5. Accordingly, it was foreseeable to American Linen that these
depositions would engender disputes necessitating additional time and potentially the
Court’s intervention.
Each of the remaining factors weighs at least slightly in American Linen’s favor.
On the first factor, Plaintiffs contend that trial would be imminent if not for various
challenged actions taken by American Linen. Doc. 322 at 4–5. Suffice it to say that both
sides have caused significant delays in this litigation. Moreover, the Court has
permitted additional discovery on Plaintiffs’ newly‐added theory of liability. In the
end, no trial date has been set in this case – therefore, trial is not imminent.
Regarding the prejudice to Plaintiffs, the Court takes American Linen’s point that
the need for more than one deposition is not more onerous than should be expected in a
case that has, at one time or another, had no fewer than six unrelated defendants.1 See
doc. 314 at 7. Moreover, the communications between the parties, while not establishing
that Plaintiffs stipulated to second depositions, at least demonstrate that Plaintiffs were
aware as early as May 2019 that American Linen might seek second depositions. See
doc. 256‐1 at 1; doc. 247‐5 at 2; doc. 271‐1 at 2; doc. 256‐3. The fact that American Linen
sought such depositions should not have come as a surprise to Plaintiffs. Finally, the
Plaintiffs apparently take issue with American Linen referring to “group[s] of defendants.” Doc. 322 at 6
n.15. If the defendants were “ungrouped,” then there have been nine defendants in this case in total,
which rather increases the justification for second depositions.
1
6
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 7 of 10
Court is unpersuaded that it will suffer prejudice especially given that additional
depositions of parties will be required given the reopening of discovery on the matter of
arranger liability. See doc. 332.
Turning to diligence, Plaintiffs emphasize a lack of diligence overall in American
Linen’s approach to discovery. It is true that the Court has had reason to doubt
American Linen’s diligence in discovery, so much so that it has found cause to impose
sanctions. See generally doc. 304. However, the question for the instant motion is
American Linen’s diligence with respect to taking second depositions of Plaintiffs. As
to this question, the Court is persuaded that American Linen genuinely believed that
Plaintiffs were amenable to second depositions focused on certain topics of particular
interest to American Linen. Thus, the question of diligence must be considered in light
of American Linen’s belief that Plaintiffs would not object to sitting for second
depositions. In this light, American Linen’s failure to adequately participate in the
depositions taken by Defendant United States was not due to a lack of diligence.
Following the first depositions, American Linen did take some steps to schedule second
depositions before the case was stayed. After the stay was lifted, American Linen
noticed the depositions within the discovery deadline consistent with its apparent belief
that the parties had already agreed to them. American Linen was as diligent as the
circumstances (as they appeared to American Linen) required.
7
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 8 of 10
Finally, in lieu of developing objections as to the relevance of American Linen’s
proposed topics for the depositions, Plaintiffs direct the Court’s attention to a
spreadsheet summarizing the topics proposed by American Linen in its earlier notices
and cursorily indicating some ground for objecting to each. See doc. 322 at 6; doc. 322‐1.
The Court will not construct Plaintiffs’ arguments for them from the fragmentary
objections contained in this “Analysis.” Based upon its knowledge of the case, the
Court is sufficiently persuaded that relevant evidence is likely to come out of these
depositions.
B. Excusable Neglect
Courts apply a four‐factor test for excusable neglect, considering: “(1) the danger
of prejudice; (2) the length of the delay and its potential impact on judicial proceedings;
(3) the reasons for the delay which includes whether it was within the reasonable
control of the party seeking to show excusable neglect; and (4) whether that party acted
in good faith.” Herbert, 678 F. App’x at 701 n.2 (citing Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 391 (1993)) (quotation marks omitted).
Because excusable neglect only comes into play if a deadline has passed, the
length of the delay should be calculated starting from the applicable deadline. Here,
the applicable deadline is the October 9, 2020 discovery deadline that applied before
discovery was reopened on Plaintiffs’ Second Amended Complaint. On that date,
American Linen had already noticed its depositions and the matter was pending before
8
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 9 of 10
this Court. Because the timing of the Court’s issuance of an order on this matter was
not within American Linen’s control, the only delay that is fairly attributed to American
Linen is the time that passed between the Court’s issuance of its order (doc. 304) and the
filing of the present Motion (doc. 314). The Court permitted the parties fourteen days in
which to file a motion to redepose a party and does not find that the additional day2
American Linen spent drafting the present Motion will have any significant impact on
these proceedings. See doc. 304.
Prejudice and good faith are also in American Linen’s favor. As previously
discussed, any prejudice to Plaintiffs from American Linen’s belatedness in seeking
these depositions is mitigated by the fact that they have had ample time to anticipate
them. Finally, American Linen’s belief that Plaintiffs had stipulated to second
depositions, whether correct or not, appears to be in good faith. In sum, American
Linen’s failure to timely seek the Court’s leave for second depositions satisfies the
excusable‐neglect standard.
C. Scope Permitted by Rule 26
Finally, Plaintiffs briefly argue that the Court should deny American Linen leave
pursuant to Rule 26(b)(2)(C) on the grounds that American Linen’s proposed topics are
2
The Court notes that its Order required “any party wishing to redepose a party move the Court for
leave to do so within fourteen (14) days of this order.” Doc. 304 at 66. Defendant American Linen’s
motion was filed a day later than this deadline. Nonetheless, as Plaintiffs do not argue for denying the
motion on that basis, the issue will be deemed waived.
9
Case 2:17-cv-00809-JCH-GBW Document 333 Filed 03/25/21 Page 10 of 10
unreasonably duplicative and that American Linen had ample opportunity to
participate in Plaintiffs’ first depositions. Doc. 322 at 9–10. As noted previously, the
Court will not draw arguments from the bare objections asserted in the “Analysis”
attached to Plaintiffs’ response, nor will it comb through the evidence cited therein to
assess whether Plaintiffs’ summarized versions of American Linen’s topics are
duplicative. As to whether the depositions conducted by Defendant United States
afforded American Linen ample opportunity to depose Plaintiffs, this assertion is
doubtful considering (i) the substantially different interests of American Linen and the
United States, and (ii) the apparent fact that American Linen’s lead counsel was
unavailable to participate in the first depositions and only consented to proceeding on
the assumption that American Linen would be allowed to conduct second depositions.
IV.
CONCLUSION
For the foregoing reasons, the Court finds good cause and excusable neglect to
permit American Linen to proceed with conducting second depositions of Plaintiffs.
American Linen’s Motion for Leave to Depose Plaintiffs City of Las Cruces and Doña
Ana County Pursuant to Rule 30(b)(6) (doc. 314) is GRANTED.
IT IS SO ORDERED.
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?