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Flanagan v. Scriptpro, LLC

United States District Court, D. Kansas

June 27, 2018

RYAN FLANAGAN, Plaintiff,
v.
SCRIPTPRO, LLC Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's Motion to Modify the Scheduling Order to Extend the Deadline for the Close of Discovery (“Motion”) (ECF No. 30) and certain disputes regarding Defendant's responses to Plaintiff's first set of written discovery. On June 13, 2018, the Court convened a conference to address the Motion and discovery disputes. Plaintiff appeared through counsel, Megan L. Stiles. Defendant appeared through counsel, Tammy M. Somogye. After consideration of all briefing related to the Motion and discovery disputes, hearing arguments of counsel and discussing the same, the Court GRANTED Plaintiff's Motion and OVERRULED Defendant's objections to Plaintiff's discovery requests. The previously-announced ruling of the Court is memorialized below.

         I. Background

         A. Nature of the Case[1]

         This matter arises from Plaintiff's claims of disability discrimination, interference and retaliation under the ADAAA[2] and FMLA[3] against Defendant ScriptPro, LLC. Plaintiff worked for Defendant at its Mission, Kansas location from June of 2014 until his termination on September 9, 2016. At the time of his termination, Plaintiff was employed in Defendant's Customer Service Department as a Technical Support Analyst I. According to his Supplemental Rule 26(a)(1) Disclosures, Plaintiff is seeking attorneys' fees and costs; front and back pay, including lost wages of approximately $23, 290.00 as of January 3, 2018; liquidated damages; emotional distress damages, pre- and post-judgement interest; and punitive damages. Defendant admits Plaintiff's employment was terminated on September 9, 2016, but denies any wrongdoing.

         B. Procedural Posture

         Plaintiff filed his Complaint on October 9, 2017, and Defendant answered on November 13, 2017.[4] On January 11, 2018, the Court entered a Scheduling Order setting, among other deadlines, a discovery completion deadline of June 4, 2018.[5] Although a few intermediate deadlines have been extended, Plaintiff's Motion is the first request to amend the Scheduling Order to allow additional time to complete discovery.

         Defendant has been granted several extensions in this case.[6] In particular and as relevant here, Plaintiff allowed Defendant extra time to answer the written discovery Plaintiff served to Defendant on March 28, 2018.[7] This resulted in Defendant not answering that discovery until May 14, 2018, approximately three weeks before the scheduled mediation and close of discovery.[8]

         Plaintiff, having issues with Defendant's discovery answers, conferred with Defendant on May 16, 2018 regarding a few issues.[9] But, to save potentially unnecessary time and expense, Defendant agreed to delay discussing a majority of the issues until after mediation.[10] The mediation, held on May 31, 2018, was unsuccessful.[11]

         On June 4, 2018, the discovery completion deadline, counsel conferred regarding the remaining discovery issues.[12] Unable to resolve the discovery disputes and agree on whether the discovery deadline should be extended, Plaintiff filed the instant Motion.[13] On June 13, 2018, the Court convened a conference to discuss the Motion and discovery disputes, each are discussed below.

         II. Plaintiff's Motion to Modify the Scheduling Order to Extend the Deadline for the Close of Discovery (ECF No. 30)

         A. Duty to Confer

         As a threshold matter, the Court first considers whether the parties have sufficiently conferred regarding this Motion and their discovery disputes, as required by D. Kan. Rule 37.2. In the briefing and at the conference, counsel explained their attempts, via email and telephone, to work through the issues. The Court also notes counsel resolved previous discovery issues in this case without court involvement.[14] As such, the Court is satisfied counsel have adequately conferred as required by the above-cited rule.

         B. Legal Standard

         Federal Rule of Civil Procedure 16(b)(4) states a scheduling order may be modified “only for good cause.” To establish good cause, the moving party must show that the deadline could not have been met even if it had acted with “due diligence.”[15] In making this showing, a party “must provide an adequate explanation for any delay.”[16] “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 [a] scheduling order is not advisable.”[17] Ultimately, whether to modify the scheduling order lies within the court's sound discretion.[18]

         C. Discussion

         Plaintiff argues he has been diligent in pursuing discovery by serving written discovery more than two months prior to the completion deadline. But, due to giving Defendant more time to respond to that discovery, answers to the same were not provided until May 14, 2018, less than a month prior to the close of discovery. After reviewing Defendant's answers, Plaintiff argues he has been timely working with Defendant to resolve Defendant's objections to producing certain discovery. However, in an effort to work with Defendant to keep costs down, Plaintiff agreed to participate in mediation before pressing the discovery issues.

         But, because mediation, which occurred two business days before the discovery completion deadline, was unsuccessful, Plaintiff asserts he now needs more time to prepare his case for trial. Plaintiff believes there is responsive discovery in Defendant's possession yet to be produced which precludes him from (1) being able to prepare for and depose Defendant on the extent of its discovery answers; and/or (2) serving follow-up discovery as it pertains to any new information disclosed in Defendant's recent production.

         Defendant, on the other hand, argues Plaintiff has not been diligent in attempting to meet deadlines and has not provided an adequate explanation for his delay. Defendant states it managed to complete its discovery within the allotted time and chastises Plaintiff for waiting until two months before the end of discovery to serve written discovery requests. Defendant also takes issue with Plaintiff's failure to identify any person for deposition or given notice of any deposition during the discovery period. Defendant further argues if Plaintiff wanted to await the outcome of mediation before moving forward with more discovery, he should have asked to extend the deadlines earlier instead of filing a motion on the last day of the discovery period. In summary, Defendant contends Plaintiff's request for additional time is due to carelessness and poor planning, which is not good cause to modify the Scheduling Order.

         In support of its arguments, Defendant cites three cases, each of which the Court finds distinguishable. In Stonebarger v. Union Pac. Corp., [19] the Court denied plaintiff's request to conduct additional depositions after (1) the discovery deadline, which had previously been extended three times, closed; (2) the final pretrial conference held; and (3) the pretrial order entered. Here, the discovery deadline has never been extended, the final pretrial conference has not occurred, and no pretrial order has been entered.

         In Tomelleri v. Zazzle, Inc., [20] the Court denied plaintiff's motion to extend a discovery deadline that was filed six weeks after the deadline passed. Similarly, in Semsroth v. City of Wichita, [21] the Court denied plaintiff's motion to amend her complaint that was filed a year and four months after the deadline. Here, even though Plaintiff filed his Motion on the last day of the discovery deadline, the request was timely.[22]

         In addition to finding these cases distinguishable, and while the Court encourages efficient practices when conducting discovery, it does not find Plaintiff acted carelessly in waiting until March to issue his first set of written discovery. The Court notes parties often need time to do further research and investigation before issuing written discovery and does not find Plaintiff's preference in developing his case careless. Nor does the Court find it careless for Plaintiff to want to review discovery responses before noticing depositions or issuing further discovery. Here, due to Plaintiff allowing Defendant more time to respond to his discovery requests and the pending mediation, Plaintiff was not able to receive full discovery responses before the discovery cutoff deadline, necessitating this current request for more time.

         Neither can the Court find it careless for Plaintiff to wait until after mediation to follow up on Defendant's discovery responses when the reason for doing so was to keep litigation costs down. The Court further notes this case (1) has only been pending since October of 2017, and written discovery has occurred; (2) Defendant has previously been granted extensions; and (3) this is the Plaintiff's first request to extend the discovery deadline. Therefore, the Court finds good cause to grant Plaintiff's Motion and modify the Scheduling Order as set forth below.

         IT IS THEREFORE ORDERED that Plaintiff's Motion to Modify the Scheduling Order to Extend the Deadline for the Close of Discovery (ECF No. 30) is GRANTED. The Scheduling Order (ECF No. 15) is modified as follows:

All discovery completed:

August 29, 2018

Pretrial Order due:

September 7, 2018

Pretrial conference:

September 12, 2018 at 10:00 AM

Dispositive motion deadline:

September 28, 2018

Jury Trial:

June 4, 2019 at 9:00 AM

         No further amendments to this schedule will be permitted without Court approval on a showing of good cause.

         III. Discovery Disputes

         During the June 13 status conference, Plaintiff also raised several discovery issues regarding Defendant's responses to his First Interrogatory Nos. 7, 8, and 9, and First Request for Production of Document Nos. 17, 18, 19, 20, 21, 22, and 23. As stated in section II.A. above, the Court finds the parties adequately conferred regarding these discovery disputes. After discussing the legal standard, the Court will address each discovery issue in turn.

         A. Legal Standard - ...


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