Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, JAMES A. SESTRICH, KELLEY S. CALDWELL, JOSEPH R. HART, FRANK J. HOFFMAN, Defendants. DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S FIRST SET OF INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION AND FOR A PROTECTIVE ORDER THAT THE DISCOVERY NOT BE HAD Defendants, by undersigned counsel, pursuant to Fed.R. Civ. P. 26 (c) move to strike Plaintiff's First Set of Interrogatories, Requests for Production of Documents and Requests for Admission (hereinafter "written discovery requests") and for a Protective Order that the discovery requested not be had. In support of this motion, Defendants state as follows: 1. On Saturday November 19, 2005, at 11:56 P.M. Plaintiff sent his written

discovery requests to Defendants via facsimile transmission and followed that up with an electronic transmission on Sunday, November 20, 2005. The written discovery

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requests consists of 17 Interrogatories, some with multiple parts, 19 Requests for Production, some containing multiple requests and 24 Requests for Admission, 20 of which have a "hidden interrogatory" attached asking, in the event the request is denied, that the Defendants " Identify each and every theory, principle, law, fact, circumstance, document or item of evidence upon which you rely to assert your denial." (A copy of Plaintiff's written discovery requests is attached as Exhibit A). 2. On December 22, 2004, this Court, by Magistrate Judge Shaffer, entered

a Scheduling Order in this matter which Order was filed with the Clerk of this Court on December 27, 2004. 2. Before entry, that Scheduling Order was approved by counsel for both the

Plaintiff and the Defendants. 3. In Section 7 of the Scheduling Order, "Case Plan and Schedule," it was

ordered in subsection f. thereof as follows "Last date to submit Interrogatories, Requests for Production, or Requests for Admission August 16, 2005." 4. In Section 12. of the Scheduling Order, "Amendments to Scheduling

Order," it was provided that the Scheduling Order may be altered or amended only upon a showing of good cause. 5. On or about June 17, 2005, Plaintiff filed an Unopposed Motion for a 90-

Day Extension of Discovery Deadlines and Corresponding Modification of Scheduling Order which requested that certain deadlines in the Scheduling Order be extended as follows: 7(b). Discovery Cut-off: from Sept. 19, 2005 to Dec. 19, 2005;

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7(c). 7(d)(3). 7(d)(4). 6.

Dispositive Motion Deadline: Plaintiff's 26(a)(2) Disclosures: Defendants' 26(a)(2) Disclosures:

from Oct. 21, 2005 to Jan. 19, 2006; from June 17, 2005 to Sept. 15, 2005; from Aug. 19, 2005 to Nov. 17. 2005.

On or about July 5, 2005, this Court per Magistrate Judge Shaffer entered

a Minute Order extending the deadlines requested in the motion as follows: Rule 26(a)(2) AFFIRMATIVE expert disclosures Rule 26(a)(2) REBUTTAL expert disclosures Discovery deadline Dispositive motion deadline 7. September 15, 2005 November 17, 2005 December 19, 2005 January 19, 2006

Thus, Plaintiff did not request a modification of, nor did the Court grant a

modification of, the provision in the Scheduling Order that the last date to submit Interrogatories, Requests for Production, or Requests for Admission was August 16, 2005. 8. Rule 16(b), Fed. R. Civ. P., provides that a deadline established in the

Scheduling Order may be extended only upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge. Washington v. Arapahoe County Dept. of Social Services, 197 F.R.D. 439, 440 (D. Colo. 2000). 9. In this case, Plaintiff sought no such extension and none was granted to

submit Interrogatories, Requests for Production or Requests for Admission. 10. Scheduling Orders and their enforcement are regarded as essential

mechanisms for cases becoming trial ready in an efficient, just and certain manner and 3

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their importance cannot be overstated. Kassim v. City of Schenectady, 221 F.R.D. 363, 365-66 (N.D.N.Y. 2003) (collecting cases). See also, Fed. R. Civ. P. 16 Advisory Committee Note. Their purpose is to encourage careful pretrial management. 6A C. Wright, C. Wright & M. Kane, Federal Practice and Procedure §1522.1 (1990), and they control the course of the action. Fed. R. Civ. P. Advisory Committee Note to 1983 Amendment to Rule 16. 11. Numerous courts, including this Court, have noted that a scheduling order

is not a frivolous piece of paper, idly entered which can be cavalierly disregarded by counsel without peril. Washington at 441, citing Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591, 593 (D. Neb. 1995). Rather, a scheduling order is an important tool necessary for the orderly preparation of a case for trial. Id. 12. Had Plaintiff here deemed it necessary to change the last day to

submit written discovery from August 16, 2005 to a later date, he certainly could have made that request. Instead, he opted to make specific requests to extend certain deadlines which were granted in the Court order of July 5, 2005, extending only those deadlines. 13. Here, Plaintiff at the stroke before midnight on November 19, 2005, sent

by facsimile to the Defendants his written discovery apparently assuming that such was timely because of the discovery cut-off date of December 19, 2005. However, because the last day for submitting such written discovery was August 16, 2005, which date was never changed, Plaintiff's written discovery was submitted too late. See Markay v. Yee, 2005 U.S. Dist. LEXIS 29586 (E.D. Ca. Case No. CV F 02 6173 OWW LJO P) (motion

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to compel discovery denied as to discovery requests served only 30 days before discovery deadline when Court's discovery order specifically required that discovery requests be served 45 days before discovery deadline). Also, the Scheduling Order here does not provide that discovery be served so that responses can be completed by the discovery deadline. Rather the order established a specific unambiguous deadline of August 16, 2005, for submission of written discovery which was not changed during the course of the litigation. 14. Additionally, Plaintiff should not be rewarded by allowing this discovery

when it was submitted by facsimile on Saturday, November 19, 2005 at 11:56 p.m. This is especially true when the parties have scheduled depositions as the close of discovery is eminent on December 19, 2005. The parties have scheduled depositions for December 13, 14, 16 and 19 as well as Thursday, December 8, 2005. 15. The decision of whether to enter a protective order is addressed to the

court's discretion. Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995). While the burden is on the proponent of the order to show good cause for it, that good cause is demonstrated by showing that the discovery sought violated the deadline established for that discovery. Sithon Maritime Company v. Holiday Mansion, 1999 U.S. Dist. LEXIS 1466 (D. Kan. Case No. 96-2262-KHV). Unless Plaintiff can show good cause within the meaning of Fed. R. Civ. P. 16(b) to extend the discovery deadline, the Court should grant a protective order against the discovery sought. Id. 16. Good cause to extend a discovery deadline requires that the party seeking

the extension (which Plaintiff has not sought here) establish that the scheduling order's

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deadline could not have been met with the exercise of diligence. See Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003); Kassim, 221 F.R.D. at 366; Parker v. Central Kansas Medical Center, 178 F. Supp. 2d 1205, 1210 (D. Kan. 2000); Sithon, Id. Good cause may be shown by demonstrating that reasonably unforeseeable events occurred after the entry of the scheduling order deadline which precluded compliance with the deadline set. Kassim, Id. But if the party seeking the extension of the deadline was not diligent the inquiry should end and the extension denied. Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087; Kassim, Id., citing Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 609 (9th Cir. 1992). 17. Plaintiff here cannot demonstrate that he was diligent in propounding the

written discovery or that unforeseen circumstances prevented him from propounding it by the deadline of August 16. 2005. Moreover Plaintiff sought and was granted extensions of other deadlines in the scheduling order and could have extended that for written discovery had he believed such necessary. Plaintiff's written discovery was more than three months beyond the deadline with no reason offered for the untimely submission. 18. Other factors which the Court may consider in evaluating a motion to

extend deadlines in a scheduling order include the prejudice to the non-moving party, and whether the party seeking the extension acted in good faith, if the moving party claims excusable neglect for the tardy discovery requests. See Walls v. International Paper Co., 2000 U.S. Dist. LEXIS 4525 (D.C. Kan. Case No. 99-2048-CM). While Plaintiff cannot claim excusable neglect here, the Defendants would be prejudiced if

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required to respond to the lengthy and late discovery given the deposition schedules and the dispositive motion deadline of January 19, 2006. Also, the date and time when the written discovery requests were served hardly demonstrates Plaintiff's good faith. 19. However, the good cause standard requires more than excusable

neglect. See In Re Kirkland, 86 F.3d 172 175 (10th Cir. 1996). It is closely related to the extraordinary circumstances standard. See Johnson v. Mammoth Recreations, supra at 610. Here, Plaintiff cannot show any extraordinary circumstances that prevented him from complying with the Scheduling Order's August 16, 2005, written discovery deadline 15. In the event that this Motion to Strike and for Protective Order is not

granted, Defendants request an extension of time to respond to Plaintiff's written discovery until January 10, 2006, (assuming that Plaintiff's written discovery was timely served), given that the discovery was served at literally the last possible minute, on a Saturday, and the parties are engaging in several depositions during the period of time between service of the written discovery and its potential due date of December 19, 2005. Additionally, undersigned counsel between the time of service of the written discovery and the time of filing of this motion represented the City in a hearing before the Career Service Authority on December 2, 2005 which continued through Monday, December 5, 2005 and prepared for that adversary hearing, was absent for the intervening Thanksgiving holiday and was required to attend to other matters including consultations regarding employment-related issues at the Denver Fire Department and the Denver Election Commission.

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16.

Pursuant to D.C.COLO.LCivR. 7.1(A) counsel for Plaintiff has been

consulted concerning the subject of this motion and opposes the motion to strike and for protective order but does not oppose the extension of time to respond to the written discovery if the motion to strike and for protective order is denied. WHEREFORE, Defendants request that Plaintiff's written discovery served by facsimile transmission at 11:56 p.m. on Saturday, November 19, 2005, be stricken as untimely and out of compliance with the requirements for submitting and serving such written discovery established in the Scheduling Order in this matter and that such discovery not be had. If such motion is denied then the Defendants request an additional 22 days to respond to the written discovery to and including January 10, 2005. Respectfully submitted this 9th day of December 2005. JACK M. WESOKY Assistant City Attorney

By:

s/Jack M. Wesoky Jack M. Wesoky Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720/913-3100 FAX: 720/913-3190 E-mail: [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on December 9th, 2005, I electronically filed the foregoing DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S FIRST SET OF INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUESTS FOR ADMISSION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan [email protected] and I hereby certify that I have served the document or paper to the following non CM/ECF participants via interoffice mail: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee St. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204

s/Jessica Schilling Jessica Schilling, Legal Secretary Office of the Denver City Attorney

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