Velasquez v. Salsas and Beer Restaurant, Inc. et al

Filing 32

ORDER denying 26 Motion to Amend the scheduling order. Signed by Chief Judge James C. Dever III on 6/13/2016. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-146-D

CRISTIAN VELASQUEZ, on behalf
of himself and all others similarly situated,
Plaintiff,

v.
SALSAS AND BEER RESTAURANT,
INC., et. al.,
Defendants.

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ORDER

On April 7, 2015, Cristian Velasquez ("plaintiff''), on behalf of himself and all others
similarly situated, filed suit against Salsas and Beer Restaurant, Inc., Noe Patino, Patricia Patino,
Dionisio Patino, and Ismael Patino ("defendants") for unpaid overtime under the federal Fair Labor
Standards Act ("FLSA") and the North Carolina Wage and Hour Act. See Compl. [D.E. 1]. On July
31, 2015, the court entered a scheduling order with "critical deadlines." See [D.E. 24] 1. The court
incorporated the parties' deadline of January 6, 2016, for the parties to complete Phase I precertification discovery. See id.; [D.E. 23] 2. The court also incorporated the parties' deadline of
February 15, 2016, for plaintiffto file amotion for conditional certification ofcollective action under
the FLSA and a motion for class certification. See [D.E. 24]; see also [D.E. 23] 2, 6.
The time for plaintiff to complete Phase I pre-certification discovery expired on January 6,
2016. See [D.E. 24] 1; [D.E. 23] 2. The time for plaintiff to file a motion for conditional
certification of a collective action under the FLSA and for class certification under the North
Carolina Wage·and Hour Act expired on February 15, 2016. See [D.E. 24] 1; [D.E. 23]2, 6.
Plaintiff did not meet these deadlines.

On March 30, 2016, plaintiff moved to amend the scheduling order [D.E. 26] and filed a
memorandum in support [D.E. 27]. Essentially, plaintiff wants the court to impose new deadlines
for those that he missed. See [D.E. 26] 1; [D.E. 27] 12. In support, plaintiff asserts that his counsel
inadvertently calendared the wrong discovery deadline and that counsel's father became seriously

ill from late December 2015 until his death on March 9, 2016. See [D.E. 27] 1-2. Plaintiff argues
that leave to amend should be freely given under Rule 15, that good cause exists due to counsel's
inadvertent calendaring error and family circumstances, and that plaintiff's failure to meet the
deadlines in the scheduling order was due to excusable neglect. See id. 6-14. Alternatively, if the
court denies the motion to amend the scheduling order, plaintiff seeks leave to amend the complaint
to add named plaintiffs pursuant to Federal Rule of Civil Procedure 21. See id. 15-17.
On April25, 2016, defendants responded in opposition [D.E. 28]. Defendants argue that
Rule 15 does not inform a court's analysis of whether to grant leave to amend a scheduling order.
See id. 3--4. Rather, Rule 16 governs the analysis and requires a showing of good cause. See id. 4;
Nourison Rug Corp. v. Parvizim1 535 F .3d 295, 298-99 (4th Cir. 2008). Defendants then argue that
plaintiffhas not shown good cause because plaintiffhas not shown that plaintiff acted diligently and
that, despite plaintiff's diligence, the scheduling order's deadline could not reasonably have been
met. See [D.E. 28] 4-8 (citingCookv. Howard,484F.App'x805, 815 (4thCir. 2012) (per curiam)
(unpublished)). In support, defendants argue that plaintiff's counsel's calendaring error concerning
Phase-I pre-certification discovery does not amount to good cause and that the alleged calendaring
error concerning Phase-I pre-certification discovery does not explain counsel's missing the February
15,2016, deadline for collective/class certification. ld. 5-6. Defendants also argue that plaintiff's
counsel has not acted diligently throughout the discovery period, including the many months before
counsel's father became ill. See id. 6-9. Finally, defendants argue that plaintiff's counsel's

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misinterpretation of the scheduling order does not constitute excusable neglect warranting an
amended scheduling order. See id. 9-11 (citing Inre Veritas Software Corp. Sec. Lit., 496 F.3d 962,
973-74 (9thCir. 2007); Corwin v. Walt Disney Co., 475 F.3d 1239, 1255 (11thCir. 2007); Quigley
v. Rosenthal, 427 F.3d 1232, 1237-38 (lOth Cir. 2005); Thompson v. E.I. DuPont de NeMours &
Co., 76 F.3d 530, 534-35 (4th Cir. 1996)).
"Given their heavy case loads, district courts require the effective case management tools
provided by Rule 16." Nourison Rug Corp., 535 F.3d at 298. A trial court's scheduling order "is
not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without
peril." Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985).
In order to amend a scheduling order, a party must first establish "good cause" under Rule
16. See, e.g., Nourison Rug Corp., 535 F.3d at 298-99. If the party fails to establish "good cause"
under Rule 16, a trial court may deny the motion to amend the scheduling order. See id.; see also
Royce v. Wyeth, No. 2:04-0690, 2011 WL 1397043, at *1-2 (S.D. W. Va. Apr. 13, 2011)
(unpublished); Harev. OprylandHosp.. LLC, No. DKC 09-0599,2010 WL 3719915, at *3 (D. Md.
Sept. 17, 2010) (unpublished); Rodgers v. Hill, No. 5:08-CT-3105-D, 2010 WL 3239104, at *13
(E.D.N.C. Aug. 16, 2010) (unpublished); Halpern v. Wake Forest Univ. Health Scis., 268 F.R.D.
264, 266 (M.D.N.C. 2010); Remediation Prods .. Inc. v. Adventus Ams. Inc., No. 3:07CV00153RJC-DCK, 2009 WL 101692, at *1-2 (W.D.N.C. Jan. 8, 2009) (unpublished). Rule 16's "good
cause" focuses primarily on ''the diligence ofthe moving party." Montgomery v. Anne Arundel Cty.,
182 F. App'x 156, 162 (4th Cir. 2006) (per curiam) (unpublished). Establishing good cause requires
the moving party to show that the deadlines could not reasonably have been met despite the party's
diligence.

See,~'

Cook, 484 F. App'x at 815; United States v.

(E.D.N.C. 2007)~

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God~

247 F;R.D. 503, 506

Having reviewed the entire record, the court finds that plaintiff's conduct falls "far short of
[the diligence] required to satisfy the good cause standard." Nourison Rug Corp., 535 F.3d at 298;
see StonecrestPartners. LLC v. BankofHamptonRoads, 770 F. Supp. 2d 778,784 (E.D.N.C. 2011).
Accordingly, because plaintiffhas not demonstrated "good cause," the court denies plaintiff's motion
to amend the scheduling order. The court also denies plaintiff's alternative request to amend the
complaint. The proposed amendment also requires good cause, and plaintiff has not demonstrated
good cause. See Nourison Rug Corp., 535 F.3d at 298.

In sum, plaintiff's motion to amend the scheduling order [D.E. 26] is DENIED.
SO ORDERED. This jJ_ day of June 2016.

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