United States District Court, D. Kansas
SIXTH AMENDED SCHEDULING ORDER
D. Mitchell, U.S. Magistrate Judge
matter comes before the court on plaintiff Watchous
Enterprises, L.L.C.'s (“Watchous”) Motion to
Amend the Scheduling Order (ECF No. 226). For the reasons
discussed below, the court grants Watchous's motion and
amends the scheduling order as follows.
action arises out of Watchous's attempt to secure
financing for oil and gas explorations. Watchous contends
that it engaged defendant Pacific National Capital, LLC
(“Pacific”) to act as a broker to find a lender
or joint venture partner. Pacific connected Watchous with the
Waterfall defendants as potential lenders. Watchous gave
Waterfall a $175, 000 refundable deposit in connection with
executing a letter of intent. But Watchous and Waterfall
never reached a final agreement, and Watchous demanded that
Waterfall return the $175, 000 deposit. After Waterfall
allegedly did not refund the deposit, Watchous filed this
lawsuit in December of 2016.
25, 2018, the court granted Watchous leave to file a second
amended complaint bringing RICO claims against Pacific and
individual defendants associated with Pacific and Waterfall.
(ECF No. 167.) These RICO claims are premised on allegations
that the named defendants engaged in wire fraud when they
induced Watchous to send Waterfall the $175, 000 deposit.
Watchous alleges that these defendants also engaged in a
pattern of defrauding other oil and gas companies that were
seeking financing or a joint venture partner.
order to elicit testimony relating to these RICO claims,
Watchous filed a Motion for Leave to Take Trial Depositions
After the Deadline for Completion of Discovery (ECF No. 205).
Watchous's motion sought leave to conduct twelve nonparty
“trial depositions” in Utah, California,
Colorado, Canada, Mississippi, Louisiana, and Texas after the
court ruled on any dispositive motions, but at least three
weeks prior to trial. The court rejected Watchous's
argument to the extent that Watchous relied on a distinction
between “discovery depositions” and “trial
depositions, ” and construed Watchous's motion as a
motion to amend the scheduling order. (ECF No. 217, at 2-5.)
The court denied the motion on the grounds that Watchous had
not shown good cause for such a lengthy extension, but stated
that Watchous could renew its motion on more limited terms
following a discovery conference with the court.
(Id. at 4-6.)
court held a discovery conference on April 25, 2019. Pacific,
Mark M. Hasegawa, and Charles A. Elfsten (the “Pacific
defendants”) and Watchous appeared through counsel. The
individual defendants associated with Waterfall, William J.
Mournes, Gordon W. Duval, and Mark S. Zouvas (collectively
with Waterfall, the “Waterfall defendants”),
appeared pro se. Watchous's counsel noted that he
was having difficulty meeting and conferring with all
defendants about the proposed depositions because the
Waterfall defendants still appeared to be represented by an
attorney of record, Troy D. Renkemeyer, although Mr.
Renkemeyer no longer appeared to be participating in the
case. Mr. Mournes stated that the Waterfall
defendants were working to secure new counsel and had spoken
with a law firm that agreed to represent them. Mr. Duval
requested that the Waterfall defendants be allowed until May
1, 2019 to retain new counsel, and, if the individual pro
se defendants had not retained counsel at that point,
Watchous's counsel could contact them directly.
court gave defendants an opportunity to respond to
Watchous's plan to depose nonparty witnesses during the
conference. Neither counsel for the Pacific defendants nor
the pro se defendants stated any objection to
Watchous taking a limited number of depositions following the
close of discovery. Rather, counsel for the Pacific
defendants indicated that he was “fairly certain that
[he] would cover [the depositions] by telephone” and
that he was ready to discuss a schedule for the depositions.
The individual pro se defendants also indicated a
willingness to discuss how to proceed regarding the
depositions. The court therefore directed Watchous to file a
renewed motion to amend the scheduling order. (ECF No. 224.)
Based on the information provided by Mr. Mournes and Mr.
Duval, the court set a briefing schedule that would allow the
Waterfall defendants' new counsel-or the pro se
defendants if they could not retain new counsel-to respond to
Watchous's renewed motion.
has now filed a renewed Motion to Amend the Scheduling Order
(ECF No. 226). Watchous seeks an order amending the
scheduling order to allow it to take the depositions of seven
identified nonparty witnesses in California, Colorado, Texas,
Utah, and Canada on specific dates between May 20, 2019, and
June 4, 2019. Watchous also asks that the court continue the
final pretrial conference from May 23, 2019 to a date in
mid-June 2019. The Pacific defendants now oppose
Watchous's request to amend the scheduling order to take
these depositions. (ECF No. 228.) In support, the Pacific
defendants simply incorporate their prior arguments from
their opposition to Watchous's earlier motion. The
Pacific defendants do not oppose continuing the pretrial
conference. The Waterfall defendants, who are still
unrepresented, did not file a response to Watchous's
motion, and the court therefore considers the motion to be
unopposed by the Waterfall defendants. See D. Kan.
Rule 7.4(b) (noting that, when a party does not file a
response brief within the time allowed, the court will
consider the motion as uncontested).
scheduling order “may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). To establish “good cause, ” the party
seeking to modify a deadline must show that it “could
not have been met with diligence.” Parker v. Cent.
Kansas Med. Ctr., 178 F.Supp.2d 1205, 1210 (D. Kan.
2001), aff'd, 57 Fed.Appx. 401 (10th Cir. 2003).
The court is “afforded broad discretion in managing the
pretrial schedule.” Rimbert v. Eli Lilly &
Co., 647 F.3d 1247, 1254 (10th Cir. 2011).
“[T]otal inflexibility is undesirable, ” however,
because scheduling orders can have an
“outcome-determinative effect on the case.”
Id. “A scheduling order which results in the
exclusion of evidence is . . . ‘a drastic
sanction.'” Id. (quoting Summers v.
Mo. Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997)).
has shown good cause for amending the scheduling order to
take the identified depositions. As the court's prior
order suggested, Watchous is now seeking a more modest
extension as to specific, limited depositions and has
provided a concrete schedule for completing those
depositions. Watchous served defendants with discovery
requests relating to the nonparty witnesses on defendants in
February 2019. Defendants did not serve responsive documents
until mid-April 2019, which was only approximately two weeks
before the April 30, 2019 discovery deadline. Watchous could
not have realistically reviewed these documents and
coordinated with the nonparty witnesses and defendants to
complete seven depositions in the two-week period before the
close of discovery. Further, disallowing these depositions
would effectively exclude evidence relating to Watchous's
RICO claims. In order to alleviate any potential burdens on
defendants (who now all appear to be unrepresented), the
court will grant them leave to appear at the depositions by
telephone. See Fed. R. Civ. P. 30(b)(4).
Accordingly, the court finds good cause to amend the
scheduling order to permit Watchous to take the requested
depositions in May and June of 2019.