United States District Court, D. Minnesota
Katherine Menendez United States Magistrate Judge.
Blue Package Delivery, LLC (“Blue Package”) has
moved to amend the amending scheduling order. (ECF No. 71.)
Defendant Express Messenger Systems, Inc.
(“OnTrac”) opposes the motion. (ECF No. 80.)
Because the Court finds good case to amend the scheduling
order, and finds little to no prejudice to OnTrac, Blue
Package's motion is GRANTED.
litigation has been plagued with delay for myriad reasons.
The first delay occurred in January 2018. On January 19,
2018, OnTrac served discovery on Blue Package. But discovery
responses were not provided to OnTrac within the 30-day
deadline. While the clock was running on the required
responses, Blue Package's first attorney, Dan Gallatin,
informed Blue Package that he would be seeking withdrawal,
and advised them to find new counsel. On February 19, 2018,
Mr. Gallatin formally moved to withdraw without substitute
counsel. (ECF No. 20.) Before the Court could rule on the
motion, Blue Package retained new counsel, Halpern Law Firm,
who entered a notice of appearance on March 7, 2018. (ECF No.
Halpern took over the case, they learned that Blue Package
had never received OnTrac's first set of discovery
requests. (ECF No. 29, Ex. C.) These requests were also
missing from the file that Mr. Gallatin had sent to Halpern.
(Id.) Halpern did receive the requests after this
oversight was discovered. However, delay in the discovery
Halpern met with Blue Package on May 16, 2018 to discuss
responding to discovery (Declaration of Lynn Terpstra, ECF
No. 77, ¶ 2), discovery responses were not timely
provided to OnTrac. On June 7, 2018, OnTrac filed a motion to
compel. (ECF No. 26.) Blue Package never responded to the
motion, so the Court granted the motion without their input.
(ECF No. 32.) Halpern then instructed Blue Package to collect
responsive documents and send them to OnTrac without
Halpern's review. (Terpstra Decl., Ex. B.) OnTrac
notified Blue Package and Halpern of deficiencies in the
response, and Halpern once again instructed Blue Package to
respond without providing guidance or input. (Id.
Ex. C.) They also acknowledged that they were unaware of what
had been produced to OnTrac. (Id.) On August 29,
Blue Package provided Halpern with its updated responses to
OnTrac's discovery as well as affirmative discovery
requests of its own. (Id. Ex. F.) Halpern never
served OnTrac with the discovery requests.
delay was caused by circumstances entirely out of Blue
Package's control. First, Steve Ugland, the primary
Halpern attorney working with Blue Package, suffered a stroke
in early September. (Terpstra Decl., Ex. G.) Litigation was
stalled for several weeks while Mr. Ugland recovered. Shortly
thereafter, Halpern moved to withdraw from litigation, citing
a refusal by Blue Package to communicate or engage in the
litigation. (ECF No. 48.) The Court granted the motion and
gave Blue Package time to find new counsel, which it did.
Blue Package's third attorney, Messerli and Kramer,
appeared on January 14, 2019. (ECF No. 68.) They promptly
filed this motion. (ECF No. 71.)
a scheduling order is governed by Federal Rule of Civil
Procedure 16. Under this rule, a movant must demonstrate that
there is good cause to modify the deadlines in a scheduling
order. Fed.R.Civ.P. 16(b)(4). “The primary measure of
good cause is the movant's diligence.” Kmak v.
American Century Companies, Inc., 873 F.3d 1030, 1034
(8th Cir. 2017) (quoting Harris v. FedEx Nat'l LTL,
Inc., 760 F.3d 780, 786 (8th Cir. 2014)). Prejudice to
the nonmovant is generally only considered when the movant
has not been diligent in meeting the deadlines of the
scheduling order. Cf. id.
Package argues that it has been as diligent as possible
considering the less-than-perfect actions of Halpern, and
that modification of the scheduling order is warranted.
OnTrac opposes Blue Package's motion, arguing that Blue
Package has caused much of the delay through its own actions,
rather than those of its counsel, and that it will be
prejudiced by the late modification of the scheduling order.
The Court finds that a modest change to the scheduling is
the Court does not seek to apportion blame between any
counsel or party for the delay that necessitates the current
motion. It is clear that actions by multiple actors have
converged to create the situation in which Blue Package now
finds itself-several months after discovery's close, with
no discovery conducted. And OnTrac is in a similar position
in some respects: it has been unable to collect necessary
discovery or conduct essential depositions to support either
its defenses or its counterclaims. Regardless, Blue Package
has submitted evidence that demonstrates their diligence in
providing discovery responses and information for discovery
requests to their attorney. (See, e.g., Terpstra
Decl. Ex. F.) Accordingly, the Court finds that at least part
of Halpern's failure to conduct discovery is not tied to
Blue Package's diligence. Although a litigant typically
hires an attorney at their own risk, see Link v. Wabash
Railroad Co., 370 U.S. 626, 633-34 (1962), courts in
other circuits have granted modest changes to a scheduling
order where extraordinary circumstances warrant.
E.g., Dunham v. City of New York, 295
F.Supp.3d 319, 328 (S.D.N.Y. 2018). Indeed, the Eighth
Circuit has considered conduct attributable to a
litigant's attorney in analogous cases, such as when
determining sanctions. See, e.g., Herring v.
City of Whitehall, 804 F.2d 464, 468 (8th Cir. 1986)
(considering potential harm to the client due to attorney
neglect); see also Bergstrom v. Frascone, 744 F.3d
571, 575 n.1 (8th Cir. 2014).
Court is careful to note that it makes no finding of
professional misconduct or malpractice in this Order, nor is
any such motion before it. Such a finding is not warranted by
the record before it, nor is it required for the result
reached here. Nor does the Court place blame squarely upon
any party's shoulders. But on the record before the Court
now, it is clear that, while Blue Package may not have
pursued discovery at times with perfect diligence, its
efforts were also thwarted by actions taken by its attorneys,
as well as an attorney illness that was certainly beyond
anyone's control. These are unusual circumstances, and
failing to adjust the schedule would not serve the goal of
securing an adjudication on the merits of this case.
the Court finds that OnTrac will not be prejudiced by this
adjustment. Prejudice is not always considered where an
adjustment to the scheduling order is made, but should be
examined when, in cases such as this, the movant has not
demonstrated perfect diligence in its attempts to adhere to
the scheduling order. E.g., Kmak, 873 F.3d
at 1034. The Court finds that OnTrac will suffer little
prejudice, and in fact may even benefit, from reopening
discovery. OnTrac has provided little to support its general
claim of prejudice stemming from this motion. Instead, OnTrac
simply argues that it was diligent, and so it is unfair that
Blue Package will get a second chance to conduct discovery.
It also appears that OnTrac believes that it should be
absolved of any possible liability for Blue Package's
claims, but awarded full recovery for its counterclaims as a
result of the delay at issue. (See ECF Nos. 66, 80.)
Such a windfall is unjustified. The Court understands
OnTrac's frustration, but finds that it does not amount
to prejudice. Indeed, by reopening discovery, OnTrac will
have the opportunity to conduct previously-noticed
depositions and will also gain insight into Blue
Package's theory of the case.