C. v. San Marcos Consolidated Independent School District
ORDER DENYING 53 Second Motion for Extension of Time to Complete Discovery. Signed by Judge Andrew W. Austin. (jk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
RACHEL CRAWFORD ,
SAN MARCOS INDEPENDENT
Cause No. A-09-CA-649 LY
Before the Court are: Plaintiff’s Second Opposed Motion to Extend Discovery Deadline
(Clerk’s Doc. No. 53) filed June 23, 2011; and Defendant’s Response in Opposition to Plaintiff’s
Second Opposed Motion to Extend Discovery Deadline (Clerk’s Doc. No. 56) filed July 7, 2011.
The District Court referred the above-motions to the undersigned for resolution pursuant to 28
U.S.C. § 636(b)(1)(A), FED . R. CIV . P. 72, and Rule 1(c) of Appendix C of the Local Rules of this
Court. The Magistrate finds as follows.
Plaintiff Rachel Crawford (“Plaintiff” or “Crawford”), who is identified as having Asperger’s
Syndrome, was a student at the San Marcos Consolidated Independent School District and received
special education services pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. § 1401 et seq., and the federal and state laws and regulations issued thereunder. On or about
February 2, 2009, Crawford filed a complaint pursuant to 20 U.S.C. § 1415(b)(6) with the Texas
Education Agency requesting that an impartial Hearing Officer be appointed to hear her complaints
that San Marcos Consolidated Independent School District failed to provide her with a Free
Appropriate Public Education (“FAPE”) violating the requisites of the Individuals With Disabilities
Education Act (“IDEA”), 20 U.S.C. §1401 et seq. The Honorable S. Aleman conducted a “Due
Process Hearing” and on June 2, 2009, he issued Findings Of Fact and Conclusions Of Law. On
September 11, 2009, the Texas Education Agency sent a letter to the Defendant School District
giving notice that TEA “determined the decision to be adverse” to the San Marcos Consolidated
Independent School District.” Plaintiff’s Exh. A at ¶ 21. As a result of the Hearing Officer’s and
TEA’s letter, Plaintiff now argues that she is a prevailing party in substantial part in this case and
is entitled to seek attorney fees accordingly, 20 U.S.C. §1415(i)(3)(B)(i)(I).
Defendant maintains that the Special Education Hearing Officer granted only partial relief
in favor of Plaintiff on two of the eighteen issues that were raised on her behalf. Thus Defendant
denies that Plaintiff is a prevailing party and denies that she is entitled to attorney’s fees. Defendant
maintains that it is entitled to prevailing party status and is entitled to recover its attorneys’ fees,
costs, and expenses.
Motion to Extend Deadlines
The Scheduling Order in this case was entered on December 10, 2010. It provided that the
parties should complete discovery by June 30, 2011. The dispositive motions deadline is set for
August 8, 2011. On May 26, 2011, Judge Yeakel granted Plaintiff’s Opposed Motion to Extend
Time to Complete Discovery (Clerk’s Doc. No. 35), for the sole purpose of permitting Plaintiff to
respond to discovery that was past due. In that same Order Judge Yeakel granted Plaintiff leave to
file her First Amended Complaint.
Plaintiff now moves to extend the discovery deadline, not to respond to discovery, but rather
to take depositions herself. Plaintiff claims that she notified the School District that she wished to
depose certain individuals before the expiration of the discovery deadline, and that Defendant’s
counsel objected that the amount of notice for the depositions was inadequate if the depositions were
to take place within the discovery period. Plaintiff therefore seeks an extension of the discovery
deadline to permit her to take depositions within a 30-day period. Plaintiff further asserts that the
extension is justified by the Defendant’s recently-filed counterclaim.
Defendant opposes an extension, noting that Plaintiff did not request dates for depositions
until June 21, 2011—nine days prior to the expiration of the discovery period. Although it is not
entirely clear, Plaintiff’s counsel apparently wishes to depose Wesley Johnson and Stacey Ferguson,
attorneys who represented the School District during the Due Process hearing, and Denise Hays, a
shareholder in defense counsel’s firm that the School District has designated as an expert on
attorney’s fees. The School District notes that Plaintiff did not submit any expert reports on
attorneys fees and is therefore precluded from offering expert testimony on attorney’s fees, thereby
making it futile to allow Plaintiff to depose the school district’s fees expert. Lastly, the School
District notes that its counterclaim is not recently-filed, as it was initially asserted in 2009 when it
filed its Original Answer and Counterclaim, and was merely restated in the amended answer filed
when Plaintiff was granted leave to amend.
To justify the modification of a scheduling order, a movant must first show “good cause” for
failure to meet the scheduling order deadline under Rule 16(b). S & W Enters., L.L. C. v. Southwest
Bank of Alabama, 315 F.3d 533, 536 (5th Cir. 2003). A scheduling order “may be modified only
for good cause and with the judge’s consent.” FED .R.CIV .P. 16(b). The good cause standard
requires the “party seeking relief to show that the deadlines [could not] reasonably be met despite
the diligence of the party needing the extension.” S & W, 315 F.3d at 535 (citation omitted). In
deciding whether to allow an amendment to the scheduling order, a court considers: (1) the
explanation for the party’s failure to meet the deadline; (2) the importance of the amendment to the
scheduling order; (3) potential prejudice if the court allows the amendment; and (4) the availability
of a continuance to remedy such prejudice. Id. (internal quotation marks, brackets, and citations
Here, Plaintiff has offered no reason for her failure to conduct these depositions prior to the
discovery deadline. Her claim that Defendant recently filed a counterclaim carries no water, as the
counterclaim was filed along with the Original Answer more than a year ago, and the amended
version was only filed in response to Plaintiff’s Amended Complaint, and added no new issues.
Further, Plaintiff has failed to establish she has been diligent in completing discovery within the time
period permitted. Moreover, she does not identify who she wants to depose or the purpose of these
depositions, leaving the Court and the School District to speculate over that issue. With regard to
prejudice, and the availability of a continuance, the dispositive motions deadline in this case is
August 8, 2011. The Court is loathe to move this deadline without a good reason, and would almost
certainly be required to do so if the Plaintiff is permitted 30 days of discovery beginning at this time.
For all of these reasons, IT IS ORDERED that Plaintiff’s Second Opposed Motion to Extend
Discovery Deadline (Clerk’s Doc. No. 53) is DENIED.
SIGNED this 20th day of July, 2011.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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