Kindig-It Design v. Creative Controls

Filing 124

MEMORANDUM DECISION denying 117 Motion to Compel. Signed by Judge Jill N. Parrish on 4/21/17. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
KINDIG-IT DESIGN, INC.;
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
COMPEL

v.
Case No. 2:14-cv-00867-JNP-BCW
CREATIVE CONTROLS, INC.; SPEEDWAY
MOTORS, INC.; RUTTER’S ROD SHOP,
INC.; and Does 1-18;

District Judge Jill N. Parrish

Defendants.
Before the court is Kindig-It Design, Inc.’s motion to compel Creative Controls, Inc. to
provide further responses to its discovery request. [Docket 117]. The motion is DENIED.
The magistrate judge entered the first scheduling order in this case on March 4, 2016.
[Docket 82]. The order required fact discovery to be completed by November 18, 2016. A
default certificate was entered against Creative Controls on May 19, 2016. [Docket 99].
Thereafter, Kindig-It and defendant Speedway Motors, Inc. stipulated to a revised scheduling
order, noting that patent infringement claims, which had been dismissed as to Creative Controls,
were still at issue against Speedway and that specific deadlines under the local patent rules were
required. [Docket 102]. The magistrate judge entered a revised scheduling order on July 27,
2016. [Docket 103]. The revised order included a deadline to serve written discovery before
claim construction on February 7, 2016. The order closed fact discovery on March 9, 2017.
On November 23, 2016, Kindig-It served its first set of discovery requests on Creative
Controls. On January 17, 2017, Creative Controls responded to the request. On April 10, 2017,
Kindig-It filed the present motion to compel, arguing that the responses provided by Creative
Controls were inadequate. The court denies the motion to compel for two reasons.

First, the motion is late. There is some ambiguity as to whether the second scheduling
order, which established specific deadlines related to the patent claims against Speedway Motors,
applies to the claims against Creative Controls, which did not include any patent claims. But
even if the amended scheduling order controls, Kindig-It filed its motion to compel well after the
deadline. Written discovery had to be served by February 7, 2017 and fact discovery was closed
on March 9, 2017. The filing of a motion to compel a month after the close of discovery was
undoubtedly untimely.
Rule 16(b) of the Federal Rules of Civil Procedure requires either a district judge or a
magistrate judge to issue a scheduling order that limits the time to complete discovery. “[A]
‘Scheduling Order is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril.’” Washington v. Arapahoe Cty. Dep’t of Soc. Servs., 197
F.R.D. 439, 441 (D. Colo. 2000) (citation omitted). Once entered, the scheduling order “may be
modified only for good cause and with the judge’s consent.” FED. R. CIV. P. 16(b)(4). This good
cause requirement “requires the movant to show the ‘scheduling deadlines cannot be met despite
[the movant’s] diligent efforts.’” Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771 F.3d
1230, 1240 (10th Cir. 2014) (alteration in original) (citation omitted).
Despite the lateness of its motion to compel, Kindig-It makes no attempt to modify the
scheduling order for good cause. Nor can the court discern good cause given that the responses
to the discovery request were given 51 days before the close of fact discovery. Kindig-It had
time to either file a motion to compel or request to extend the discovery deadline before it
passed. Moreover, the fact that the parties may have been negotiating a settlement does not give
them license to ignore deadlines without seeking permission of the court. A private agreement
between the parties that “any discovery requests will be extended” does not extend the discovery

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cutoff. [See Docket 16-5]. Rule 16(b)(4) unambiguously provides that a scheduling order “may
be modified only for good cause and with the judge’s consent.”
Second, even if the motion to compel had been timely, the additional information sought
by Kindig-It was not “proportional to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.” FED. R.
CIV. P. 26(b)(1).1 Given the amount in controversy in this case and the limited scope of the sole
remaining issue of damages, the court concludes that the additional information requested was
not proportional to the needs of the case.
CONCLUSION
The Court DENIES Kindig-It’s motion to compel. [Docket 117].
Signed April 21, 2017.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

1

This language was added to Rule 26 in 2015, after this case had been initiated. By order of the
Supreme Court, the 2015 amendments took “effect on December 1, 2015, and . . . govern in all
proceedings in civil cases thereafter commenced and, insofar as just and practicable, all
proceedings then pending.” Order Amending the Federal Rules of Civil Procedure (April 29,
2015), found at http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf.
Because the amended language is similar to language from the previous version of Rule 26, see
FED. R. CIV. P.26(b)(2)(C)(iii) (2014), the court concludes that it is just and practicable to apply
the amended version of Rule 26 here, see Basulto v. Exact Staff, Inc., No. 15-CV-01566-MSK-NYW, 2016
WL 879861, at *2 (D. Colo. Mar. 8, 2016).

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