Harper v. The City of Dallas Texas et al

Filing 117

MEMORANDUM OPINION AND ORDER: The Court DENIES Plaintiffs Tony S. Harper, Sandra Harper, and KH have filed an Emergency Motion to Extend the Discovery Deadline to Conduct Limited Discovery [Dkt. No. 110 ]. (Ordered by Magistrate Judge David L. Horan on 3/6/2018) (sss)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TONY S. HARPER, SANDRA HARPER,
individually and for the benefit of all
statutory beneficiaries of James Harper
and as the Estate of James Harper, and
KH, a minor by and through her mother
and guardian Ashlee Whadley,
Plaintiffs,
V.
THE CITY OF DALLAS, TEXAS,
and BRIAN ROWDEN,
Defendants.

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No. 3:14-cv-2647-M

MEMORANDUM OPINION AND ORDER1
Plaintiffs Tony S. Harper, Sandra Harper, and KH have filed an Emergency
Motion to Extend the Discovery Deadline to Conduct Limited Discovery, see Dkt. No.
110 (the “Motion to Extend”), which Chief Judge Barbara M. G. Lynn has referred to
the undersigned United States magistrate judge for a hearing, if necessary, and for
determination under 28 U.S.C. § 636(b), see Dkt. No. 111.
Defendants City of Dallas, Texas and Brian Rowden filed a response, see Dkt.
No. 113, and Plaintiffs a reply, see Dkt. No. 116.

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written
opinion[] issued by the court” because it “sets forth a reasoned explanation for [the]
court's decision.” It has been written, however, primarily for the parties, to decide
issues presented in this case, and not for publication in an official reporter, and should
be understood accordingly.
1

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Legal Standards and Analysis
Plaintiffs ask the Court to reopen discovery (or extend the already expired
discovery deadline) to grant them five days to serve a Request for Production on
Defendant Brian Rowden.
Federal Rule of Civil Procedure “16(b)(4) governs a party’s request to extend the
discovery period after the deadline established by a scheduling order has elapsed.”
Warner v. Lear Corp., No. 3:15-cv-1878-D, 2017 WL 930829, at *3 (N.D. Tex. Mar. 9,
2017). Plaintiffs’ request therefore is governed by Rule 16(b)(4), under which “[a]
schedule may be modified only for good cause and with the judge’s consent.” FED. R.
CIV. P. 16(b)(4).
“To show good cause, the party seeking to modify the scheduling order has the
burden of showing that the deadlines cannot reasonably be met despite the diligence
of the party needing the extension.” Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 237
(5th Cir. 2015) (internal quotation marks omitted); accord 839 East 19th Street, LP v.
CitiBank, N.A., No. 3:11-cv-1238-M, 2012 WL 13024000, at *1 (N.D. Tex. June 11,
2012) (“In order to establish good cause, a party must demonstrate that the deadline
could not ‘reasonably be met despite the diligence of the party needing the extension.’”
(quoting Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008))).
The Court considers four factors in determining whether to modify a scheduling
order for good cause under Rule 16(b)(4) to allow discovery after the court ordered cutoff: (1) the explanation for the failure to complete discovery on time, (2) the importance
of the modification to the scheduling order to permit the discovery, (3) the potential
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prejudice in allowing the modification, and (4) the availability of a continuance to cure
such prejudice. See Squyres, 782 F.3d at 237; Leza v. City of Laredo, 496 F. App’x 375,
376 (5th Cir. 2012). “The absence of prejudice to the nonmovant and inadvertence of
the party seeking the modification are insufficient to demonstrate ‘good cause.’” Barnes
v. Sanchez, No. 3:07-cv-1184-M, 2010 WL 5027040, at *1 (N.D. Tex. Dec. 2, 2010)
(footnote omitted).
The deadline for completion of discovery (already extended more than once)
expired on August 14, 2017. See Dkt. No. 77; Dkt. No. 115 at 2. Three days before that
deadline, Plaintiffs filed an Emergency Motion to Compel [Dkt. No. 79], seeking, among
other things, an order compelling production of “numerous e-mail communications and
recordings of telephone conversations” that Rowden admitted at his deposition that he
has in his possession. Dkt. No. 79 at 1-2. The Court ordered expedited briefing on the
Emergency Motion to Compel, held a 1-hour-and-14-minute hearing on the motion n
August 25, 2017, see Dkt. No. 94, and issued a 39-page Memorandum Opinion and
Order [Dkt. No. 95] denying the Emergency Motion to Compel that same day. In so
ruling, the Court also explained that
[c]ounsel for the City of Dallas repeatedly assured the Court during oral
argument that, in compliance with its ongoing supplementation
obligations, the City of Dallas is continuing to search for documents
responsive to Plaintiffs’ discovery requests served on the City of Dallas,
including documents described during Rowden’s deposition, and that it
will produce anything that it finds through a diligent search. As the
Court discussed with counsel during oral argument, and without
objection by the City of Dallas as to this proposed requirement, the Court
believes it is fair and appropriate to require the City of Dallas to serve a
sworn declaration by a person with knowledge on Plaintiffs’ counsel to

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describe the City of Dallas’s efforts in this regard and the results of those
efforts. The City of Dallas must do so by September 1, 2017.
Dkt. No. 110 at 33-34. Defendants explain that, “[o]n 1 September 2017, the City fully
complied with that order by serving to the Plaintiffs a declaration by the City’s Senior
Security Analyst, Greg Whipple.” Dkt. No. 113 at 4.
In their Emergency Motion to Extend the Discovery Deadline to Conduct
Limited Discovery, filed on February 15, 2018, Plaintiffs seek leave to reopen discovery
for the limited purpose of serving on Rowden a formal Federal Rule of Civil Procedure
34 request for production that requires him to produce the emails and recordings that
he stated existed, under oath, and, if he does not, would permit Plaintiffs file to a file
a Federal Rule of Civil Procedure 37(a) motion to compel the documents and/or seek
a spoilation instruction from the Court. See Dkt. No. 110.
Defendants have exhaustively briefed the Rule 16(b)(4) standards as applied to
the facts here, and much of the relevant background is also laid out in the Court’s
August 25, 2017 Memorandum Opinion and Order [Dkt. No. 95] and need not be
repeated here. The Court finds that Plaintiffs have not shown they have been diligent
in connection with the relief that they now request. They point to no new developments
that were not exhaustively discussed and briefed in connection with the August 2017
Emergency Motion to Compel. Plaintiffs simply did not follow up on taking steps to
serve a formal discovery request on Rowden between August 26, 2017 and February
15, 2018.

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Plaintiffs offer no meaningful explanation for their failure to more timely pursue
this additional discovery. They assert that Rowden “is now refusing to produce the
documents or has intentionally destroyed the documents and recordings,” Dkt. No. 110
at 3, but, back in August 2017, that was a basis for the Emergency Motion to Compel,
see Dkt. No. 79 at 1 (“At his deposition, Rowden admitted that he has numerous e-mail
communications and recordings of telephone conversations in his possession. Although
he agreed to produce them, he has not yet done so.”). Plaintiffs state in their Motion
to Extend that they “fully expected that Rowden would produce the documents and
recordings after he agreed to do so but unfortunately, that has not been the case”; that
“Rowden’s counsel, Jason Schuette, represented just today that Rowden will produce
the emails and recordings if he finds them but that has been the story for months now”;
and that “[i]t has now become apparent that Rowden will not produce the emails and
recordings since he is not legally obligated to do so.” Dkt. No. 110 at 4; see also id. at
5 (“Plaintiffs relied on Rowden’s representation that he would locate and produce the
requested information but with little over three months before trial, it’s now clear that
Rowden has no intention to produce the documents and recordings knowing there are
no legal consequences for his failure to do so.”).
But, as Plaintiffs explain elsewhere in their Motion to Extend, Rowden, through
his counsel, has taken that position since at the least the time of his response to the
August 2017 Emergency Motion to Compel. See id. at 2; see also Dkt. No. 113 at 17
(“The Plaintiffs sole explanation for not acting sooner, such as it is, is that ‘Plaintiffs
fully expected that Rowden would produce the documents and recordings after he
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agreed to do so.’ (See Motion at 4.) But the Defendants have shown that Officer Rowden
has done precisely what he said he would do. Officer Rowden undertook a reasonable
search for the subject materials, and he has already produced all of the e-mails and
audio recordings that he has found.”).
The Court cannot agree with Plaintiffs that their failure to seek this discovery
at the latest after the August 25, 2017 order or the City served the required declaration
on September 1, 2017 has not been unreasonable or that the reason for the delay was
beyond Plaintiffs’ control. Compare Dkt. No. 113 at 7-8 (“The Plaintiffs neglected to
serve any Rule 34 request to Officer Rowden before the close of the discovery period.
And, despite being on formal notice by the Court’s 25 August 2017 order that a verbal
request made during a deposition was insufficient under Rule 34, the Plaintiffs made
an affirmative choice not to seek an extension of the discovery deadline as to Rowden
right away, in August 2017. Or in September 2017. Or in October, November, or
December 2017. Not even in January 2018. The Plaintiffs waited 175 days – almost six
months – before filing the Motion” to Extend.), id. at 10-11 (“However, as discussed
above, Officer Rowden has stated under penalty of perjury that he has searched for the
subject materials, tendered everything that he found, and will tender anything that he
may locate in the future to his counsel. The Plaintiffs’ continued allegations of
misconduct by Officer Rowden are unjustified, and do nothing to advance this
litigation. More critically, the Plaintiffs do not explain how they could have a ‘good
faith belief’ that Officer Rowden was going to produce materials that he has failed to
locate after conducting a reasonable search, much less how an untimely Rule 34
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request will impose upon Officer Rowden greater penalties for allegedly hiding
documents than would false representations to the Court contained in a declaration
pursuant to 28 U.S.C. § 1746.”), with Dkt. No. 116 at 3 (“Because Rowden continues to
hide behind the fact that the Plaintiffs never served a proper Rule 34 Request for
Production and because the City claims that it is unable to locate any of the documents
Rowden sent to City employees, is more reason why the Plaintiffs seeks to modify the
scheduling order such that a limited discovery request can be sent to Rowden.”), and
id. at 3-4 (“Although Plaintiffs agree there’s been some delay in seeking this extension,
the Plaintiffs reason for waiting so long was because Rowden agreed to produce the
documents and recordings, a fact he does not dispute. The Plaintiffs fully expected that
Rowden would produce the documents and recordings after he agreed to do so but
unfortunately, that has not been the case. The Plaintiffs acted in good faith and were
diligent in their repeated attempts to obtain the documents from both Rowden and the
City. The Plaintiffs have requested the documents from Rowden's counsel on a number
of occasions and made every effort to obtain the documents without the need to seek
judicial intervention.”).
Like Defendants, the Court is not as sanguine as Plaintiffs about the limited
impact on this case’s deadlines from reopening even limited discovery. And the Court
does not accept Plaintiffs’ assertion, without explanation, that Rowden should not at
this point perhaps be even permitted to take the 30 days to respond that Federal Rule
of Civil Procedure 34(b)(2)(A) would presumptively allow him. See Dkt. No. 110 at 5.

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Plaintiffs contend that “Defendants will not be prejudiced if Rowden is served
with a limited request for production that requires him to produce the emails and
recordings he stated under oath, exist,” where, “[a]s a practical matter, the parties
have agreed to conduct at least 4-5 depositions after the discovery deadline so the fact
that Rowden is now being asked to respond to a request for production should not be
an issue.” Dkt. No. 116 at 3. The Court does not believe that that conclusion naturally
follows from the fact that the parties’ agreed to several late depositions. Even with the
extended trial date in October 2018, Plaintiffs promise more motion practice to follow
if they are granted leave at this late date to belatedly serve a Rule 34(a) request for
production on Rowden.
Accordingly, even in the face of the extended trial date occasioned by Plaintiffs’
counsel’s scheduling conflict with the previously set May 2018 trial date, Defendants
could be prejudiced by the additional expense from – and trial of the case may even be
further delayed based on – the additional discovery and motion practice that Plaintiffs
seek the Court’s leave to launch in the less than eight months before the continued
trial date and the less than seven months before final pretrial materials are due. See
Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990); cf. Reliance Ins. Co. v. La.
Land & Exploration Co., 110 F.3d 253, 258 (5th Cir. 1997) (“District judges have the
power to control their dockets by refusing to give ineffective litigants a second chance
to develop their case.”); Barnes, 2010 WL 5027040, at *2 (“Moreover, granting a
continuance would not deter future careless behavior nor serve to enforce this Court’s
Scheduling Order.”).
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In this analysis, the Court can assume that Plaintiffs are correct that this
requested discovery – for materials that Rowden and the City of Dallas’s declarant
have both stated under penalty of perjury (in what Plaintiffs call sham affidavits) that
they have already diligently searched for and failed to locate – is important to
Plaintiffs’ case. But, under these circumstances, the claimed importance of this
additional discovery request – for information that Plaintiffs contend that “Rowden is
obviously withholding,” Dkt. No. 116 at 4 – only underscores the need for Plaintiffs to
have exercised some diligence in complying with the scheduling order’s discovery
deadline or, at least, having much sooner sought to reopen discovery. See Geiserman,
893 F.2d at 792; see also Palomino v. Miller, No. 3:06-cv-932-M, 2007 WL 1650417, at
*2 (N.D. Tex. June 7, 2007) (“The only factor potentially weighing in Plaintiff's favor
here is the importance of the amendment, since Plaintiff has failed to state a claim for
which relief may be granted against the City of Irving in his Original Petition.
However, Plaintiff’s lack of diligence in timely amending his complaint undercuts the
importance of the amendment.”); cf. Rosario v. Livaditis, 963 F.2d 1013, 1019 (7th
Cir.1992) (“A party who fails to pursue discovery in the face of a court ordered cut-off
cannot plead prejudice from his own inaction.”).
Further, the Court notes the Plaintiffs already sought Federal Rule of Civil
Procedure 37(e) sanctions against the City of Dallas and Rowden, and the Court denied
that request on a basis that the proposed discovery request to Rowden does not appear
to remedy in connection with any hoped-for spoliation instruction See Dkt. No. 95 at
34 (“After considering Rowden’s deposition testimony and his declaration filed with
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Defendants’ response to the MTC, Plaintiffs have not made a sufficient showing under
Rule 37(e), which the Court finds to justly and practicably govern in this case, that
electronically stored information that should have been preserved in the anticipation
or conduct of this litigation is lost because Defendant Brian Rowden or Defendant City
of Dallas failed to take reasonable steps to preserve it or that it cannot be restored or
replaced through additional discovery or that either Defendant Brian Rowden or
Defendant City of Dallas acted with the intent to deprive another party of the
information’s use in the litigation.”); see generally FED. R. CIV. P. 37(e) (“If
electronically stored information that should have been preserved in the anticipation
or conduct of litigation is lost because a party failed to take reasonable steps to
preserve it, and it cannot be restored or replaced through additional discovery, the
court: (1) upon finding prejudice to another party from loss of the information, may
order measures no greater than necessary to cure the prejudice; or (2) only upon
finding that the party acted with the intent to deprive another party of the
information’s use in the litigation may: (A) presume that the lost information was
unfavorable to the party; (B) instruct the jury that it may or must presume the
information was unfavorable to the party; or (C) dismiss the action or enter a default
judgment.”).
In short, considering Rule 16(b)(4)’s good cause requirement dictating that
Plaintiffs show that the discovery deadline could not have been reasonably met despite
Plaintiffs’ diligence and the other Rule 16(b)(4) factors, the Court determines that
Plaintiffs have not shown the required good cause to reopen or extend the discovery
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deadline as they request. See Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d
875, 884 (5th Cir. 2004) (in the related context of deciding whether to exclude an
untimely expert designation, explaining that, if “the first and third factors militate
against permitting the testimony, the trial court was not obligated to continue the
trial,” where, “[o]therwise, the failure to satisfy the rules would never result in
exclusion, but only in a continuance,” and, “[b]ecause of a trial court’s need to control
its docket, a party’s violation of the court’s scheduling order should not routinely justify
a continuance).
And, after full briefing on this motion and an extensive hearing on the precursor
Emergency Motion to Compel, the Court determines that, despite Plaintiffs’ request
for oral argument to permit “Plaintiffs to more fully develop for the Court the need for
the additional discovery from Rowden,” Dkt. No. 110 at 9, permitting oral argument
would only increase the parties’ costs and would not affect the outcome of this motion.
The Court will therefore deny Plaintiff’s request for oral argument.
Conclusion
For the reasons explained above, the Court DENIES Plaintiffs Tony S. Harper,
Sandra Harper, and KH have filed an Emergency Motion to Extend the Discovery
Deadline to Conduct Limited Discovery [Dkt. No. 110].
SO ORDERED.
DATED: March 6, 2018
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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