Camps v. Gore Capital LLC et al

Filing 198

MEMORANDUM ORDER: On November 18, 2020, Plaintiff Fernando Camps filed a motion to extend (Doc. No. 194 ) the November 13, 2020 deadline for serving written discovery in this action established by the amended initial case management order (Doc. N o. 183 ). On December 8, 2020, Camps filed a motion to ascertain the status of his motion for an extension. (Doc. No. 197 .) Camps's motion to ascertain status (Doc. No. 197 ) is GRANTED. Camps's motion to extend the deadline for serving written discovery in this action (Doc. No. 194 ) is DENIED. Signed by Magistrate Judge Alistair Newbern on 12/14/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

FERNANDO CAMPS,
Plaintiff,
v.

Case No. 3:17-cv-01039
Judge Eli J. Richardson
Magistrate Judge Alistair E. Newbern

GORE CAPITAL, LLC, et al.,
Defendants.

MEMORANDUM ORDER
On November 18, 2020, Plaintiff Fernando Camps filed a motion to extend (Doc. No. 194)
the November 13, 2020 deadline for serving written discovery in this action established by the
amended initial case management order (Doc. No. 183). Defendant Angela Evans opposes the
requested extension. (Doc. No. 195.) Camps has filed a reply in support of his motion. (Doc.
No. 196.) On December 8, 2020, Camps filed a motion to ascertain the status of his motion for an
extension. (Doc. No. 197.) Camps’s motion to ascertain status (Doc. No. 197) is GRANTED. The
status of his motion for an extension is as follows:
On September 8, 2020, the Court issued an amended initial case management order setting
November 13, 2020, as the deadline for service of written discovery and December 30, 2020, as
the deadline for completion of all written discovery and fact witness depositions. (Doc. No. 183.)
On November 5, 2020, as these deadlines approached, the Court held a telephonic case
management conference with the parties, who “report[ed] that discovery is progressing and will
conclude as scheduled by December 30, 2020.” (Doc. No. 193.) Following that conference, the
Court ordered that “[a]ll deadlines set by the Amended Initial Case Management Order (Doc.
No. 183) remain in place.” (Doc. No. 193.) On November 18, 2020, five days after the deadline

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for serving written discovery had passed, Camps filed his motion for an extension, asking for an
additional ten days “to issue and re-issue certain third-party subpoenas for documents.” (Doc.
No. 194, PageID# 1947.) Camps states that “[t]he reason for the delay in serving the subpoenas
was purely administrative error, as the subpoenas were substantially prepared but not finalized by
November 13, 2020.” (Id.) Evans opposes the extension.
Although Camps did not identify the subject of the tardy subpoenas in his motion, Evans
states—and Camps does not deny—that they “are intended for individuals and entities related to
#AE20, a car racing enterprise that was previously dismissed for lack of personal jurisdiction.”
(Doc. No. 195, PageID# 1951.) Camps first attempted to serve subpoenas on the same entities in
March 2020. (Doc. No. 164-1.) The intended targets filed a motion to quash (Doc. No. 164) and,
at the Court’s direction, the parties filed a joint discovery dispute statement (Doc. No. 174)
regarding the subpoenas, among other issues. The Court held a telephone conference with counsel
for the parties and the target entities on April 21, 2020, after which the Court terminated the motion
to quash to allow for independent resolution of the issues raised. (Doc. No. 172.) That is the last
that the Court heard from Camps regarding this discovery. Evans therefore argues that Camps’s
motion for an extension to serve third-party subpoenas is “belated and lethargic . . .” ; that the
proposed extension, combined with the third-parties’ anticipated opposition to the subpoenas, “will
result in delay and jeopardize the entire [case management] schedule[;]” and that granting the
extension will result in undue prejudice to Evans. (Doc. No. 195, PageID# 1951–52.) Camps
responds that his failure to meet the deadline for serving written discovery was the result of
excusable neglect and that Evans will not be prejudiced by the extension. (Doc. No. 196.)
Rule 16(b)(4) provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Where, as here, a party seeks to extend a

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deadline after it has passed, Rule 6(b)(1)(B) requires a showing of both “good cause” and
“excusable neglect” for failing to act before the deadline passed. Fed. R. Civ. P. 6(b)(1)(B); see
also Gardner v. Dye, No. 3:15 C 00669, 2016 WL 9244200, at *4 (M.D. Tenn. July 1, 2016)
(“Under Rule 6(b)(1)(B), we may extend a deadline after its expiration ‘for good cause . . . if the
party failed to act because of excusable neglect.’” (quoting Fed. R. Civ. P. 6(b)(1)(B))). The Court
balances five factors to determine whether excusable neglect is present: “(1) the danger of
prejudice to the nonmoving party, (2) the length of the delay and its potential impact on judicial
proceedings, (3) the reason for the delay, (4) whether the delay was within the reasonable control
of the moving party, and (5) whether the late-filing party acted in good faith.” Nafziger v.
McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006). With respect to finding good cause,
“[t]he primary measure . . . is the moving party’s diligence in attempting to meet the case
management order’s requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)
(quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)). The Sixth Circuit has held
that “a court choosing to modify the schedule upon a showing of good cause, may do so only ‘if it
cannot reasonably be met despite the diligence of the party seeking the extension.’” Leary v.
Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (quoting Fed. R. Civ. P. 16(b)(4) advisory
committee’s note to 1983 amendment). “Another relevant consideration is possible prejudice to
the party opposing the modification.” Inge, 281 F.3d at 625.
Camps has not offered any explanation for his failure to move for an extension before the
deadline to serve written discovery passed; he argues only that his failure to meet the deadline was
the result of “administrative error” and “miscommunications” with local counsel. (Doc. No. 196,
PageID# 1954.) Even assuming, however, that Camps’s failure to act by the deadline can be
characterized as excusable neglect, the Court finds that Camps has not shown the diligence

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necessary to demonstrate good cause for modifying the scheduling order. Camps has not addressed
the relevant standard for good cause, and his argument that his counsel’s “administrative error”
serves “as his ‘good cause’” misconstrues the well-established standard. (Id.) Courts in this circuit
have found that “[c]arelessness or attorney error is insufficient to constitute good cause . . . .”
Smith v. T. Marzetti Co., No. 1:18-CV-00089, 2019 WL 4044024, at *3 (W.D. Ky. Aug. 27, 2019);
see also Trs. of Plumbers & Steamfitters Local Union No. 43 Health & Welfare Fund v. Crawford,
No. 1:06-CV-245, 2007 WL 2905616, at *2 (E.D. Tenn. Oct. 2, 2007) (“‘[M]ere inadvertence’ by
the moving party, even coupled with an absence of prejudice to the non-moving party, is
insufficient to establish good cause.” (citation omitted)); Birge v. Dollar Gen. Corp., No. 04-2531,
2006 WL 133480, at *1 (W.D. Tenn. Jan. 12, 2006) (“A litigant’s inattention or error is not good
cause by any standard.” (citation omitted)). Camps concedes that he could have complied with the
deadline, if not for attorney error. He states that “[t]he subpoenas were completed and ready to be
noticed to opposing counsel by November 9, 2020[,]” but “the final steps were inadvertently
missed by the November 13, 2020 deadline.” (Doc. No. 196, PageID# 1954–55.) Camps therefore
could have met the scheduling order deadline at issue if his counsel had acted diligently. See Leary,
349 F.3d at 906; Crawford, 2007 WL 2905616, at *2. Finally, Camps states that, in the intervening
seven months, he was involved in “long, protracted, costly and ultimately futile” efforts to obtain
the requested discovery. (Doc. No. 196, PageID# 1956.) Given the nature of counsel’s
communications with the Court on this issue, the Court does not doubt that the negotiations were
contentious. But, if Camps anticipated he would not be able to resolve this issue independently, it

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was his responsibility to take the necessary steps to bring it back before the Court by issuing the
subpoenas. He had months to do so but did not.1
For these reasons, Camps’s motion to extend the deadline for serving written discovery in
this action (Doc. No. 194) is DENIED.
It is so ORDERED.

____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

1

As Evans points out, had Camps served the subpoenas on November 9 or November 13,
2020, as he states he intended to do, he would not have complied with this Court’s Local
Rule 45.01(d), which requires that, “[w]henever a party issues a subpoena for the production of
documents to a person not a party to the action pursuant to Fed. R. Civ. P. 45, the party issuing the
subpoena must serve a copy of the subpoena by facsimile, electronically, or by hand delivery upon
counsel for every other party to the action at least two (2) business days prior to service of the
subpoena.” M.D. Tenn. R. 45.01(d) (timing of subpoenas for production of documents).

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