United States District Court, D. Minnesota
Michael L. Lansdale, Plaintiff,
UPS Supply Chain Solutions, Inc., Defendant.
R. THORSON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion to
Modify the Pretrial Scheduling Order, to Modify the Discovery
Deadline for Limited Purposes, to Compel Discovery for
Limited Purposes, and for Other Relief. (Doc. No. 253.) For
the reasons stated below, Plaintiff's motion is denied.
filed this lawsuit and it was removed to federal court on
December 7, 2016. (Doc. No. 1.) A Pretrial Scheduling Order
was entered on February 10, 2017. (Doc. No. 12.) The Court
adopted the parties' recommendation that “the
parties must commence fact discovery procedures in time to be
completed on or before September 15, 2017.”
(Id.) The deadline for filing non-dispositive
motions relating to fact discovery was also set for September
15, 2017. (Id.) The Pretrial Scheduling Order
provided that the “parties must meet and confer to
resolve fact and expert discovery disputes when they arise,
and if unresolved, bring discovery disputes promptly to the
Court's attention.” (Id. at 4.) The
Scheduling Order also required the parties to request an
informal conference to discuss discovery disputes before any
discovery motion is filed. (Id.) The Court provided
clear instructions on non-dispositive motion practice and
also offered an Informal Dispute Resolution process.
settlement conference was set for October 2, 2017. (Doc. No.
16.) The parties submitted a stipulation to amend the
deadline for fact discovery and for the filing of
non-dispositive motions relating to fact discovery. (Doc. No.
17.) The stipulation proposed a two-week extension of the
deadline for the close of discovery and the corresponding
non-dispositive motion deadline to accommodate three
depositions and supplemental document production. The parties
represented that “all written discovery and document
production by the Parties is substantially complete.”
(Id.) An Amended Pretrial Scheduling Order was
issued moving the fact discovery deadline and corresponding
non-dispositive motion deadline to September 29, 2017. (Doc.
parties participated in a settlement conference on October 2,
2017, however, a settlement was not reached at that time.
(Doc. No. 20.) On November 3, 2017, an informal conference
regarding discovery was held. (Doc. No. 22.) Following that
conference, the parties presented a proposed amended schedule
relating only to expert discovery. (Doc. No. 23.) The Court
entered an amended order modifying the schedule for expert
discovery. (Doc. No. 25.) No fact discovery issues were
February 20, 2018, Plaintiff filed a Motion for Partial
Summary Judgment. (Doc. No. 26.) Defendant filed its Motion
for Summary Judgment on March 9, 2018. (Doc. No. 41.) A
second settlement conference was held on March 19, 2018.
(Doc. No. 124.) No settlement was reached. (Id.) On
June 13, 2018, a hearing on the dispositive motions was held.
(Doc. No. 214.) Chief Judge John R. Tunheim issued his
Memorandum and Opinion and Order on the Motions for Summary
Judgment on August 17, 2018. (Doc. No. 237.) A Jury Trial
Notice was issued on September 4, 2018, setting trial for
December 3, 2018. (Doc. No. 242.) An Amended Jury Trial
Notice was issued on November 6, 2018, setting trial for
January 3, 2019. (Doc. No. 252.) A final settlement
conference was held on October 30, 2018. (Doc. No. 245.) No
settlement was reached. (Doc. No. 251.)
before the settlement conference, on October 29, 2018,
Plaintiff sent Defendant a discovery deficiency letter. (Doc.
No. 256, Affidavit of Thomas Glennon (“Glennon
Aff.”) Ex. 7.) Specifically, Plaintiff demanded
responses to Interrogatory Nos. 23 and 24 and Document
Request Nos. 25 and 26. (See id.) Defendant timely
objected to any discovery responsive to these requests in
April 2017. (Glennon Aff., Exs. 1 and 2.) Plaintiff did not
pursue responses to this discovery until sending the October
29, 2018 discovery deficiency letter. This fact discovery
dispute was first presented to the Court for resolution on
November 13, 2018. Plaintiff then filed his Motion to Amend
and Motion to Compel on November 15, 2018. (Doc. No. 253.)
Defendants' responded on November 21, 2018. (Doc. No.
258.) The Court contacted the parties on November 26, 2018,
to set a hearing and a hearing was held on December 4, 2018.
(Doc. No. 299.)
scheduling order “may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4); see also L.R. 16.3(b)(1). “The
primary measure of good cause is the movant's diligence
in attempting to meet the order's requirements.”
Sherman v. Winco Fireworks, Inc., 532 F.3d 709,
716-17 (8th Cir. 2008) (quoting Rahn v. Hawkins, 464
F.3d 813, 822 (8th Cir. 2006)); see also
Scheidecker v. Arvig Enterprises, 193 F.R.D. 630,
631 (D. Minn. 2000) (“[T]he ‘good cause'
standard [of Rule 16(b)] is an exacting one, for it demands a
demonstration that the existing schedule cannot be reasonably
be met despite the diligence of the party seeking the
extension.”); Fed.R.Civ.P. 16(b), advisory committee
note (1983 Amendment) (“[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
the prejudice to the nonmovant resulting from modification of
the scheduling order may also be a relevant factor,
generally, we will not consider prejudice if the movant has
not been diligent in meeting the scheduling order's
deadlines.” Sherman, 532 F.3d at 717 (citation
omitted); see also Archer Daniels Midland v.
Aon, 187 F.R.D. 578, 582 (D. Minn. 1999) (stating Rule
16(b) does not look at prejudice to the non-moving party)
(citing Luigino's, Inc. v. Pezrow Cos., Inc.,
178 F.R.D. 523, 525 (D. Minn. 1998)). In short, Rule 16(b)
focuses on “the diligence of the party seeking to
modify a Scheduling Order, as opposed to the litany of
unpersuasive excuses, inclusive or inadvertence and neglect,
which commonly undergird an untimely Motion to Amend.”
Archer Daniels Midland, 187 F.R.D. at 582 (citations
omitted). Local Rule 16.3 provides that “[e]xcept in
extraordinary circumstances, before the passing of a deadline
that a party moves to modify, the party must obtain a hearing
date on the party's motion to modify the scheduling
order.” Matson Logistics Services, LLC v.
Smiens, No. 12-400 (ADM/JSM), 2013 WL 12284469, *2 (D.
Minn. Sept. 9, 2013).
objections to the discovery now sought were made in April
2017. (Glennon Aff., Exs. 1 and 2.) Plaintiff did not move to
compel answers to the objected-to written discovery
responses. Aware of Defendant's objections, Plaintiff did
not craft new discovery requests relating to Mr. Flowers.
Plaintiff let the fact discovery deadline expire without any
approach to this Court.
was aware of the information Defendant filed in support of
its summary judgment papers in March 2018. (See
Glennon Aff. ¶¶ 8-9.) Indeed, Plaintiff's
awareness is memorialized in the hearing transcript.
(See Doc. No. 249, 6/13/18 Hr'g Tr. 7-8.)
Plaintiff also did not approach this Court to seek an
amendment to reopen discovery following the summary-judgment
hearing on June 13, 2018, when the subject of the unanswered
discovery was raised. At no time prior to November 13, 2018,
however, did Plaintiff attempt to compel discovery or seek to
amend the Scheduling Order.
Adams v. Citimortgage, Inc., the defendant moved to
compel discovery responses and to amend the pretrial
scheduling order after the deadline for completing fact
discovery and for bringing non-dispositive motions. Civ. No.
12-11 (SRN/JSM), 2013 WL 12145855, at *2 (D. Minn. Dec. 9,
2013) (denying motion to compel discovery responses and to
amend the pretrial scheduling order). The defendant had
served discovery requests during the discovery period but
plaintiff never responded. See id. There, the court
reasoned that -
[w]hile clearly plaintiff should have answered the written
discovery served upon her (and has offered no explanation as
to why she did not), it is not the conduct of plaintiff that
is at issue here. Once defendant received no response to its
discovery, it was incumbent upon it to take appropriate steps
to protect its interests and bring a motion to compel when
responses were not forthcoming . . . . Instead, defendant
waited almost a year after the responses to its discovery
were due to bring the present motion to compel, a clear
violation of the pretrial scheduling order. Had defendant
been diligent, it would have moved to compel the outstanding
discovery prior to April 4, 2013, or sought to amend the
dates for completion of discovery and nondispositive motions
prior to the deadlines. Instead, defendant made the tactical
decision to pursue no discovery or relief from this Court
within the timeframes afforded by the Court. This is a
strategic decision that defendant was within its right to
make, but one that it made at its own peril.
Id. Similarly here, Plaintiff made a strategic
decision not to pursue this discovery until the ...