Opinion
19-cv-2345 (LJL)
02-24-2020
FURRY PUPPET STUDIO INC., Plaintiff, v. FALL OUT BOY, et al, Defendants.
ORDER
LEWIS J. LIMAN UNITED STATES DISTRICT JUDGE
On February 14, 2020, the parties jointly moved for a second extension of the discovery deadlines set forth in the Court's Case Management Plan and Scheduling Order. Dkt. No. 90.
The Court's Case Management Plan was entered as an order on July 10, 2019. Dkt. No. 60. That order set a deadline of January 6, 2020 for the conclusion of fact discovery, including depositions and requests to admit, and a deadline of March 9, 2020 for the conclusion of expert discovery. Id. On November 27, 2019, the parties submitted an application to the Court, seeking a modification of that order in the form of an extension of the deadlines for the conclusion of fact discovery until June 5, 2020 and the conclusion of expert discovery until August 7, 2020. Dkt. No. 88. The parties argued then that the extension was based on their need for additional time to complete document production, party depositions, and third-party discovery. Judge Analisa Torres, to whom the case was then assigned, granted the application in part and denied it in part. Dkt. No. 89. The Court did not grant the parties the full relief they requested, instead extending the deadlines for the conclusion of fact discovery to April 6, 2020 and expert discovery to May 21, 2020.
On February 4, 2020, this case was randomly reassigned to me. The parties now seek from me a further modification of the Court's order. Specifically, they seek an extension of the time for the conclusion of fact discovery to July 6, 2020 and expert discovery to August 27, 2020-a greater extension than that which they first sought from Judge Torres and which was denied in November 2019. They argue that the extension is needed to have an opportunity to conduct meaningful settlement negotiations in advance of depositions, and in the absence of settlement, to have sufficient time to resolve open issues in their document productions and to prepare for and conduct depositions.
Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge's consent.” Several things are clear from that language.
First, a scheduling order is an order just like any other order of the Court. Although the consent of the parties to a proposed modification is important, it is not dispositive. The Court must also keep in mind the language of Rule 16(a) that makes clear that the judge has an important role in “expediting disposition of the action” and the language of Rule 1 that the Federal Rules of Civil Procedure should be construed “to secure the just, speedy, and inexpensive determination of every action and proceeding.” “Such orders and their enforcement are regarded as the essential mechanism for cases becoming trial-ready in an efficient, just and certain manner. The control of these schedules is deliberately reposed in the court, and not in counsel, so that this end may be achieved.” 3 J. Moore, Moore's Federal Practice § 16.14[1][a] (3d ed. 2019) (hereinafter, Moore's).
Second, the language of Rule 16(b)(4) makes clear that the Court may modify a scheduling order only if there is a showing of “good cause.” In the context of a request for the modification of a discovery schedule, that often means a showing by the movant that “despite due diligence, it could not have reasonably meet the scheduled deadlines.” Id.; see also Peterson v. Home Depot U.S.A., Inc., No. 11-cv-5747, 2013 WL 5502816, at *2 (S.D.N.Y. Oct. 3, 2013). As one commentator has put it, “‘good cause' is likely to be found when the moving party has been generally diligent, the need for more time was neither foreseeable nor its fault, and refusing to grant the continuance would create a substantial risk of unfairness to that party.” Moore's § 16.14[1][b]. The following factors are not compatible with a finding of diligence and do not provide a basis for relief: carelessness, an attorney's otherwise busy schedule, or a change in litigation strategy. Id. In short, and among other things, the party seeking an extension should demonstrate that it exercised diligence in conducting discovery by describing what discovery it conducted in the time period originally scheduled and that there are circumstances that were not foreseen at the time of the order sought to be modified nor the party's fault that give rise to the request for the extension. The movant should also set forth the remaining discovery to be conducted, why it is important and could not have been conducted earlier, why the requested time (and not some lesser time) is necessary, how allowing additional time would contribute to “the just, speedy, and inexpensive determination” of the matter, and any prejudice it would suffer if a modification is not made.
Finally, the use of the word “may” as opposed to the imperative “shall” reflects that in the end, and even after a showing of “good cause,” it remains within the sound discretion of the district judge whether to grant a modification or not.
The joint letter does not demonstrate good cause to the satisfaction of the Court. The letter says in general and conclusory terms that which most lawyers would be able to state-that “the parties have diligently participated in the discovery process, including by collecting, reviewing, and producing significant numbers of documents to each other” and that “the parties also have been working diligently to confirm deposition availability.” Dkt. No. at 90. The Court would expect no less. The letter does not describe in sufficient detail-or any detail at all-the status of discovery, including what discovery has been done and what remains to be done, nor does it describe whether and how many depositions remain to be taken, why they are necessary, and why they cannot be done in some lesser amount of time or why settlement discussions could not have been commenced earlier. Nor does it describe what events transpired after November 27, 2019 that were not anticipated on that date (such that this Court can consider the application something other than a motion for reconsideration of Judge Torres' earlier order).
The application for an extension of the discovery deadlines, in its current form, is DENIED without prejudice to renewal upon a properly supported application demonstrating good cause based on the guidance set forth in this Order.
SO ORDERED.