JONES v. NORTH CAROLINA DEPARTMENT OF CORRECTIONS
Filing
22
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 2/5/2013, that Plaintiff's Motion for Extension of Time for Discovery Period and to Continue Trial (Docket Entry 18 ) is DENIED. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LANCE A. JONES,
Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF
CORRECTION,
Defendant.
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1:11CV470
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Motion for
Extension of Time for Discovery Period and to Continue Trial
(Docket Entry 18).
(See Docket Entry dated Jan. 31, 2013.)
For
the reasons that follow, the Court will deny the instant Motion.
BACKGROUND
Plaintiff instituted this action by filing (through counsel)
a Complaint against Defendant.
(Docket Entry 1.)
By Order dated
November 10, 2011, the Court adopted the parties’ Joint Rule 26(f)
Report, except as to its request for a dispositive motions deadline
beyond that provided for by Local Rule 56.1(b),1 resulting in the
establishment of August 31, 2012, as the discovery deadline.
(See
Docket Entry 9.) Plaintiff’s original counsel died on December 21,
2011.
1
(See Docket Entry 13-1.)
On July 2, 2012, Plaintiff’s
The Court explained that the parties could obtain a later
deadline for dispositive motions by showing good cause to deviate
from Local Rule 56.1(b) (which sets the deadline for dispositive
motions at 30 days after discovery ends). (Docket Entry 9 at 1.)
current counsel appeared (Docket Entry 12)2 and “request[ed] that
the deadline to complete discovery be extended to the end of
January 2013” (Docket Entry 13 at 2).
The Court granted that
request and reset the discovery deadline for January 31, 2013.
(Text Order dated July 12, 2012.)3
In light of the new discovery
deadline, by Notice dated September 11, 2012, the Clerk set a trial
date of July 1, 2013.
(Docket Entry 14.)
Plaintiff filed the instant Motion.
On January 30, 2013,
(Docket Entry 18.)
DISCUSSION
With his instant Motion (filed the day before the close of
discovery), Plaintiff asks the Court to extend the discovery
deadline to “at least July 2013,” the dispositive motions deadline
to “at least October 31, 2013,” and the trial date to “January 31,
2014 or later.”
(Id. at 1.)
To the extent Plaintiff bases those
requests on the death of his original counsel and the fact that his
current counsel “are still relatively new to the case” (see id. at
2), his instant Motion must fail, because (as documented in the
Background
section
above)
the
Court
adopted
a
new
discovery
deadline (which led, by operation of Local Rule 56.1(b), to the
2
Although the associated Docket text references only
attorney, two attorneys appeared for Plaintiff pursuant
Notice. (See Docket Entry 12 at 1-2.) Perhaps because
error in the Docket text, both attorneys recently filed
Notice of Appearance. (Docket Entry 16.)
3
one new
to that
of that
another
The Court, however, denied a request to set the dispositive
motions deadline beyond that provided by Local Rule 56.1(b), for
lack of a showing of good cause. (Text Order dated July 7, 2012.)
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establishment of the dispositive motions deadline and, by action of
the Clerk, to the setting of the trial date) at the request of
Plaintiff’s current counsel after they appeared in July 2012.
The
only other specific justification cited in the instant Motion for
the requested relief appears as follows:
“Plaintiff is still in
the process of conducting discovery. Depositions are still pending
as counsel for the Plaintiff is still locating witnesses in order
that the notices for deposition may be served.”
(Id.)
“A schedule may be modified only for good cause and with the
judge’s consent.”
Fed. R. Civ. P. 16(b)(4) (emphasis added).4
4
Prior to the 1983 amendment of Federal Rule of Civil
Procedure 16 that mandated entry of scheduling orders, courts had
experimented with them.
See Fed. R. Civ. P. 16 advisory
committee’s note, 1983 Amend., Discussion, Subdiv. (b). In Barwick
v. Celotex Corp., 736 F.2d 946 (4th Cir. 1984), the United States
Court of Appeals for the Fourth Circuit confronted an appeal
related to a scheduling order entered by a district court prior to
the adoption of the 1983 Amendment. In affirming the district
court’s enforcement of the scheduling order in that case, the
Fourth Circuit stated: “The requirements of the pretrial order are
not set in stone, but may be relaxed for good cause, extraordinary
circumstances, or in the interest of justice.”
Id. at 954
(emphasis added). The existing Federal Rule of Civil Procedure
16(b) permits modification of scheduling orders “only for good
cause,” Fed. R. Civ. P. 16(b)(4) (emphasis added), and thus does
not authorize alteration of scheduling order deadlines based upon
a showing of “extraordinary circumstances” or “in the interest of
justice,” as Barwick did in connection with scheduling orders
entered prior to the 1983 Amendment. It does not appear that the
Fourth Circuit has repeated the relevant Barwick language in a
published opinion construing a scheduling order adopted pursuant to
the post–1983 Amendment version of Federal Rule of Civil Procedure
16.
The Fourth Circuit, however, has quoted that excerpt from
Barwick in a few unpublished decisions, including, most recently,
Wall v. Fruehauf Trailer Servs., Inc., 123 F. App’x 572, 576 (4th
Cir. 2005), but without addressing the intervening amendment of
Federal Rule of Civil Procedure 16. Plaintiff has not relied on
Barwick (or its unpublished progeny) (see Docket Entry 18) and, if
(continued...)
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“[T]he touchstone of ‘good cause’ under [Federal] Rule [of Civil
Procedure] 16(b) is diligence.”
Marcum v. Zimmer, 163 F.R.D. 250,
255 (S.D.W. Va. 1995) (emphasis added); see also Fed. R. Civ. P. 16
advisory committee’s note, 1983 Amend., Discussion, Subdiv. (b)
(“[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.” (emphasis added)); M.D.N.C. LR26.1(d)
(providing that motions seeking to extend discovery period “must
set forth good cause justifying the additional time and will be
granted or approved only upon a showing that the parties have
diligently
pursued
discovery”
(emphasis
added)).
Under
this
standard, simply asserting that Plaintiff has failed to complete
depositions he wishes to take because he has not located such
witnesses falls short of establishing good cause to alter the
discovery deadline (and, as a result, the dispositive motions
deadline and trial date).
Put another way, the instant Motion
offers no basis for the Court to conclude that Plaintiff acted with
reasonable diligence in pursuing the discovery which he now seeks
an extension of time to pursue.
Nor does any absence of prejudice to Defendant from or the
consent by Defendant to the requested extensions (see Docket Entry
4
(...continued)
he had, the Court would hold that the Barwick standard did not
survive the 1983 Amendment, see Halpern v. Wake Forest Univ. Health
Scis., 268 F.R.D. 264, 273–74 (M.D.N.C. 2010), aff’d, No. 1:09CV474
(M.D.N.C. Sept. 20, 2010) (Tilley, S.J.) (unpublished).
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18 at 2-3) warrant the granting of the instant Motion.
A lack of
prejudice to one’s opponent does not establish “good cause” to
alter scheduling order deadlines. See, e.g., Cole v. Principi, No.
1:02CV790, 2004 WL 878259, at *7 (M.D.N.C. Apr. 22, 2004) (Beaty,
J.) (unpublished); DeWitt v. Hutchins, 309 F. Supp. 2d 743, 748
(M.D.N.C. 2004) (Dixon, M.J.); 3 James Wm. Moore et al., Moore’s
Fed. Prac.—Civil § 16.14[b] (3d ed. 2009).
Similarly, “focus[ing]
on the purported agreement of the parties [to an extension] ignores
th[e] fact that the [C]ourt, too, has an interest in ensuring that
the parties abide by the deadlines it sets.”
Soroof Trading Dev.
Co., Ltd. v. GE Microgen, Inc., 283 F.R.D. 142, 148 n.4 (S.D.N.Y.
2012); see also Blue v. Hartford Life & Accident Ins. Co., 698 F.3d
587, 594 (7th Cir. 2012) (taking note of its prior “reason[ing]
that district courts have an interest in keeping litigation moving
forward and that maintaining respect for set deadlines is essential
to achieving that goal”).
In sum, “the scheduling order is not a frivolous piece of
paper, idly entered, which can be cavalierly disregarded by counsel
without peril.”
Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C.
1987) (internal quotation marks omitted).
To the contrary, it
represents “the critical path chosen by the [Court] and the parties
to fulfill the mandate of [Federal] Rule [of Civil Procedure] 1 in
securing the just, speedy, and inexpensive determination of every
action.”
Marcum,
163
F.R.D.
at
-5-
253
(internal
brackets
and
quotation marks omitted).
As a result, this Court has a strong
tradition of enforcing scheduling order deadlines to ensure that
trials take place as planned.
See Walter Kidde Portable Equip.,
Inc. v. Universal Sec. Instruments, Inc., No. 1:03CV537, 2005 WL
6043267, at *3 (M.D.N.C. July 7, 2005) (unpublished) (noting that
“[C]ourt’s scheduling practice has proven to be effective for the
management of individual cases and for overall docket control and
management” and citing “history of strict adherence to discovery
schedules”).
The instant Motion does not provide grounds to take
a different approach in this case.5
CONCLUSION
Plaintiff has not shown good cause to extend the discovery or
dispositive motions deadlines or to alter the trial date.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Extension
of Time for Discovery Period and to Continue Trial (Docket Entry
18) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 5, 2013
5
Nor does the instant Motion comply with the signature
requirements of Local Rule 40.1(b). (See Docket Entry 18 at 3.)
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