United States District Court, D. Kansas
P. O'HARA U.S. MAGISTRATE JUDGE
a former salesman for defendant PrimeRevenue, Inc., filed
this action claiming defendants owe him commissions and the
value of stock options. Currently before the undersigned U.S.
Magistrate Judge, James P. O'Hara, is plaintiff's
motion for an extension of time to disclose expert witnesses
(ECF No. 48). Also pending is defendants' motion for
leave to file an amended answer and counterclaim (ECF No.
49). For the reasons set forth below, both motions are
to modify a scheduling order are governed by Fed.R.Civ.P.
16(b)(4), which provides, “A schedule may be modified
only for good cause and with the judge's consent.”
“In practice, this standard requires the movant to show
the ‘scheduling deadlines cannot be met despite [the
movant's] diligent efforts.'” “While a
scheduling order is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel
without peril, rigid adherence to the . . . scheduling order
is not advisable.”Ultimately, whether to modify the
scheduling order lies within the court's sound
Fed.R.Civ.P. 15(a)(2), once a responsive pleading has been
filed and 21 days have passed, “a party may amend its
pleading only with the opposing party's written consent
or the court's leave.” Rule 15 dictates the court
“should freely give leave when justice so
requires.” Nonetheless, a court may deny leave to
amend upon “a showing of undue delay, undue prejudice
to the opposing party, bad faith or dilatory motive, failure
to cure deficiencies by amendments previously allowed, or
futility of amendment.”When the deadline set in the
scheduling order for amending pleadings has passed,
Fed.R.Civ.P. 16(b)(4) also is implicated. As stated above,
Rule 16(b)(4) provides that a scheduling order may be
modified “only for good cause.” Thus, the Tenth
Circuit has directed courts to use “Rule 16's good
cause requirement as the threshold inquiry to consider
whether amendments should be allowed after a scheduling order
deadline has passed.”
for Extension of Time to Disclose Expert Witnesses (ECF No.
seeks an extension of his expert-disclosure deadline on the
grounds that a motion for injunctive relief filed by
defendants in Georgia state court has prevented plaintiff
from presenting certain “financial statements”
he's prepared to an expert for review in the instant
litigation. Defendants acknowledge they filed an action in
Georgia state court to prevent plaintiff “from
accessing and disclosing confidential information and trade
secrets, ” but claim the documents plaintiff
describes-i.e., financial statements plaintiff's prepared
for this case-are seemingly outside the scope of the Georgia
action insofar as they aren't PrimeRevenue's property
or subject to plaintiff's confidentiality
agreement. Defendants further argue that plaintiff
“has known about [d]efendants' Georgia action since
mid-October” but “waited until the afternoon of
his expert disclosure deadline to notify both the [c]ourt and
opposing counsel of what would seem to be a significant
hindrance in the prosecution of his
claims.” Finally, defendants ask the court to deny
plaintiff's motion on the basis that plaintiff failed to
produce the purported financial statements in response to
multiple requests for such information.
for Leave to File First Amended Answer and Counterclaim (ECF
seek leave to amend their answer “to include
affirmative defenses and a counterclaim related to
overpayments made to [plaintiff].” Plaintiff
opposes the motion on the grounds that the counterclaims are
compulsory, and therefore waived, and because defendants were
not diligent in pursuing their proposed amendments.
Additionally, plaintiff claims he will be prejudiced by
defendants' assertion of equitable claims in light of the
memorandum and order entered by Judge Marten on October 12,
2017, granting defendants' motion to dismiss
plaintiff's equitable claims. In their reply,
defendants make vague reference to plaintiff's September
7, 2017, document production, as well as the parties'
failed November 15, 2017 mediation, to explain
defendants' delay in seeking their proposed amendments.
court finds neither motion makes a particularly persuasive
good-cause showing. With respect to plaintiff's motion,
the court observes that plaintiff has apparently known of the
Georgia state-court litigation since mid-October, but failed
to address this perceived impediment to discovery until the
day his expert disclosures were to be served. Turning to
defendants' motion, the court finds defendants'
reliance on plaintiff's delayed discovery responses and
the parties' scheduled mediation questionable.
given the shortcomings of both sides in complying with the
scheduling order, the relatively limited nature of the
deviations, and the procedural posture of this case, the
court concludes the parties have been sufficiently diligent.
The court is not persuaded by plaintiff's prejudice
assertions, but notes that any prejudice arising from
existing scheduling-order deadlines and settings can be cured
by the court. In that regard, by January 5,
2018, the parties shall confer and jointly submit,
via email to the undersigned's chambers, a proposed
amended scheduling order.