United States District Court, D. Minnesota
T. SCHULTZ, UNITED STATES MAGISTRATE JUDGE.
request a 90-day extension of all remaining deadlines in the
Pretrial Scheduling Order, including the trial ready date.
Defendants oppose, arguing that Plaintiffs have not
diligently pursued discovery and any enlargement of time
would prejudice Defendants. Because good cause exists to
amend the Scheduling Order, Plaintiffs' request is
October 2018, this Court issued a Pretrial Scheduling Order
pursuant to Federal Rule of Civil Procedure 16(b). Docket No.
151. Per the Order, the parties must complete fact discovery
by June 30, 2019 and expert discovery by September 30, 2019.
Id. at 2. The Order also set dates for filing and
serving non-dispositive and dispositive motions, and set a
“trial ready date” of March 1, 2020. Id.
the Scheduling Order issued, the discovery process has been
interrupted on several occasions. Each side has sought to
compel responses to their discovery requests, and the
Government's attorneys were briefly furloughed. More
recently, Defendants have sought to extend the time for a
third party to respond to Plaintiffs' subpoena. Mot. to
Extend Return Date of Subpoena, Docket No. 254. Plaintiffs
represent that they are currently working through third party
discovery from the various physicians connected to the
alleged kickbacks and are encountering issues scheduling the
physicians' depositions. Partially due to the bogging
down of the discovery process, the Court has begun to hold
monthly status conferences with the parties.
the impracticability of meeting the current discovery
deadlines, and recognizing that any change in the discovery
dates would create a ripple effect, Plaintiffs asks the Court
to extend the deadline for fact discovery until October 17,
2019, and extend all remaining deadlines by ninety days. The
Court may, for good cause, modify the Scheduling Order.
Fed.R.Civ.P. 16(b)(4). “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 (8th Cir. 2008)
(quoting Rahn v. Hawkins, 464 F.3d 813, 822 (8th
Cir. 2006)). Although the good cause analysis emphasizes
diligence, “there is not a clear test for when a party
is diligent enough to establish good cause[, ]” and the
district court retains broad discretion. Shank v.
Carleton Coll., 329 F.R.D. 610, 614 (D. Minn. 2019)
(quoting Portz v. St. Cloud State Univ., No.
16-cv-1115 (JRT/LIB), 2017 WL 3332220, at 3-4 (D. Minn. Aug.
when satisfied of a party's diligence, the Court may
consider possible prejudice to the nonmovant. Id.
have demonstrated good cause to extend the deadlines of the
Scheduling Order. Although not always at the pace Defendants
would like, Plaintiffs have actively pursued discovery since
the Scheduling Order was issued. The Court cannot hold
against either party the time expended bringing good faith
discovery disputes for resolution, including disputes that
have required in camera review. Nor can it say
Plaintiffs were dilatory in meeting discovery deadlines based
upon the Government's-admittedly significant-delay in
intervening in this matter, as there were not yet discovery
deadlines with which Plaintiffs could comply. Further, the
remaining discovery is not reasonably likely to be completed
by the current June deadline, irrespective of Plaintiff's
diligence. This Court continues to conduct in camera
review of potentially responsive but allegedly privileged
documents. Defendants recently filed a new motion to modify
the time for a third party to respond to Plaintiffs'
subpoena, which must now be resolved. Perhaps most obviously,
the parties have numerous physician depositions left to take,
each of which requires coordinating between themselves and
with busy physicians who may not be readily available.
the Court cannot find that any prejudice to the Defendants
outweighs good cause already shown. Defendants' primary
concern is that, as long as this matter is ongoing, it hangs
overhead like the Sword of Damocles, threatening both
business and personal relationships. This point is well
taken, but it is afield of the concerns of prejudice
generally found in the caselaw, which tend to home in on the
prejudicial effects within the litigation. See,
e.g., Hagen v. Siouxland Obstetrics &
Gynecology, P.C., 286 F.R.D. 423 (N.D. Iowa 2012)
(finding defendant's request to extend discovery would
prejudice plaintiff, as dispositive motions had already been
filed and plaintiff had not contributed to need for
extension). Perhaps recognizing this, Defendants argue the
prejudice of any extension would stem from a violation of
Rule 1's mandate of a “just, speedy, and
inexpensive determination of every action and
proceeding.” Fed.R.Civ.P. 1. But this principle can
only be viewed in light of the facts of the individual case.
Defendants rely too heavily on the time this case remained
under seal because of a separate-though intertwined-criminal
investigation. Any actual prejudice to Defendants from this
extension is mitigated by the more active role the Court has
begun to take in the discovery process, which is meant to
ensure that this is the last extension necessary.
upon the foregoing, and upon all the files, records and