United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. Rushfelt U.S. Magistrate Judges
Court has before it Plaintiff's Motion to Permit
Additional Discovery Following Entry of Order on
Defendant's Motion to Dismiss (ECF 21). The motion is now
fully briefed. For the reasons set forth below, the Court
denies the motion.
motion to dismiss was filed September 6, 2017. It remains
pending (ECF 6). The Court entered its scheduling order on
December 7, 2017. It set a deadline of May 7, 2018, to
complete discovery. Plaintiff filed the instant motion on May
16, 2018. It requests additional time to conduct depositions
“of appropriate parties, ” which Plaintiff did
not previously schedule and while anticipating a ruling on
the motion to dismiss. Plaintiff does not identify anyone who
may be an appropriate party for deposition.
opposes reopening discovery (ECF 22). It argues that
Plaintiff has failed to show good cause or excusable neglect,
because the motion was filed after the discovery deadline.
Plaintiff replies that he has shown excusable neglect (ECF
24). He suggests there is no danger of prejudice to
Defendant, if additional discovery is permitted, and that he
acted in good faith by not conducting discovery during
pendency of the motion to dismiss. He concedes that it would
have been better practice to have filed a motion for
discovery extension before the deadline expired.
to extend or reopen discovery addresses the sound discretion
of the trial court.
considers the following factors in determining if discovery
should be opened:
1) whether trial is imminent, 2) whether the request is
opposed, 3) whether the non-moving party would be prejudiced,
4) whether the moving party was diligent in obtaining
discovery within the guidelines established by the court, 5)
the foreseeability of the need for additional discovery in
light of the time allowed for discovery by the district
court, and 6) the likelihood that the discovery will lead to
Plaintiff filed his motion after the expiration of the
discovery deadline, he must also show excusable neglect to
obtain an extension of it. The Court considers several factors in
determining if a party has shown excusable neglect. As noted
by Plaintiff, these factors are:
1) the danger of prejudice to the opposing party, 2) the
length of delay caused by the neglect and its impact on
judicial proceedings, 3) the reason for the delay and whether
it was in the reasonable control of the moving party, and 4)
the existence of good faith on the part of the moving
argues there is no danger of prejudice to Defendant.
Defendant indeed does not allege any prejudice. Further, the
length of delay would be minimal, because there is no trial
date yet. And Plaintiff would need to depose only individuals
whose testimony would be relevant, based on the Court's
ruling on the motion to dismiss. His reason for the delay is
that Plaintiff sought to avoid costs of discovery while the
motion to dismiss was pending. Finally, he contends he acted
in good faith by trying to minimize discovery disputes.
Plaintiff provides no explanation for his waiting until after
the discovery deadline had passed to file his motion. He
indeed concedes that “it would have been better
practice for him to have filed a motion for discovery
extension prior to the expiration of time for
discovery.”The Court simply cannot find that Plaintiff
has carried his burden to show excusable neglect.
describes no need, moreover, for reopening discovery. In
fact, many of the factors identified above weigh against him.
His request is opposed. He proposes no particular discovery
other than perhaps a deposition of some unidentified person.
He sought no discovery within the previously set deadlines.
The scheduling order was entered December 7, 2017. Plaintiff
had five months in which to conduct discovery. It appears he
conducted none, despite Defendant's serving Requests for
Admissions and Interrogatories,  and taking Plaintiff's
deposition. Similarly, Plaintiff had more than
adequate time in which to file a timely motion to extend
discovery. He instead waited, for no apparent reason, until
after the deadline had passed.
every piece of litigation requires discovery, in order to
conduct an adequate trial. From the pleadings in this case,
the Court could well assume that Plaintiff will be his own
chief witness. It might further assume that this is a case in
which he can simply proceed to trial with adequate, if not
specific, knowledge or expectation as to what the opposing
evidence will be. Indeed, the Court could well assume that
this is one of those rare cases that, if not dismissed, can
proceed to trial without any real need for discovery. If such
a need exists, the Court simply does not see it. The parties
exchanged their Rule 26 disclosures in November 2017. The
response of Plaintiff to the pending motion to dismiss,
moreover, attaches exhibits that Plaintiff could well offer
into evidence at trial (ECF 9).
has not shown excusable neglect to justify an extension of
the discovery deadline. Additionally, he fails to show any
sound reason for discovery to be reopened. The Court perhaps
could simply ignore Rule 6 and grant the motion. That would
create a precedent to simply ignore ...