United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Plaintiff's Motion to
Amend Case Management Scheduling Order and to Reschedule
Settlement Conference (Doc. 69), filed August 4, 2017, and
Defendant Southwestern Treasures, Inc.'s Motion to Reopen
Discovery for a Limited Purpose (Doc. 71), filed August 9,
2017. Having reviewed the Motions and all pertinent
authority, the Court will grant them.
a designer and manufacturer of Native American headdresses,
seeks damages and injunctive relief in this copyright
infringement action. Doc. 35 (Second Amended Complaint) at
¶ 4. Plaintiff alleges that Defendants Theresa Greene
and David Singer purchased infringing headdresses from
Defendant Southwest Treasures and then, in turn, sold them to
customers throughout the United States. Id. ¶
16. Plaintiff brings claims for copyright infringement and
violation of New Mexico's Unfair Practices Act.
Id. ¶¶ 19-28.
Greene defaulted. See Doc. 56. After experiencing
difficulties serving Defendant Singer, Plaintiff moved this
Court to permit it to serve him by publication. See
Docs. 41, 67. The Honorable Circuit Judge Paul Kelly, sitting
by designation as the presiding judge in this case, recently
granted Plaintiff permission to do so on July 28, 2017.
See Doc. 68.
Plaintiff and Defendant Southwestern Treasures
(“Southwestern”) proceeded with and completed the
discovery process, which closed on May 1, 2017. See
Doc. 25. Pursuant to this Court's Scheduling Order, the
deadline for the parties to file their consolidated proposed
pretrial order is August 24, 2017. Id. The parties
also scheduled a settlement conference, which this Court
vacated for good cause on July 21, 2017. See Docs.
57, 65. Contrary to assertions in the briefing, this matter
is indeed set for a jury trial on January 2, 2018 before
Judge Kelly. See Doc. 28.
this backdrop, the parties' current motions seek a
variety of relief. Referencing its attempts to effect service
to bring Defendant Singer into the lawsuit, Plaintiff asks
the Court to extend the deadline to file the parties'
proposed pretrial order and to reset a settlement conference.
Doc. 69 at 1-2. Defendant, on the other hand, moves the Court
to reopen discovery for the limited purpose of permitting the
parties “to depose Mark Gates and obtain relevant
documents in his possession.” Doc. 71 at 1. Mr.
Gates' testimony will purportedly demonstrate “that
Plaintiff's claimed designs were actually created by
others. . . .” Id. at 3. Thus, Defendant does
not oppose Plaintiff's motion to amend the scheduling
order if such amendment would permit reopening of discovery
to permit a deposition of Mr. Gates. See Doc. 70 at
1. Plaintiff opposes Defendant's Motion to Reopen
Discovery. See Doc. 75.
to reopen discovery is within this Court's discretion.
See Smith v. United States, 834 F.2d 166,
170 (10th Cir. 1987). In Smith, the Tenth Circuit
“identified several relevant factors” to be
applied by a Court when exercising this discretion:
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
Id. at 169. Having considered these factors, the
Court will reopen discovery for the limited purpose
identified by Defendant.
trial may not be “imminent, ” but it is looming -
it is set for January 2, 2018, and the parties' jury
instructions are due to Judge Kelly by December 1, 2017.
See Doc. 28. This leaves approximately four months
for the parties to bring Defendant Singer up to speed,
coordinate, set, and take Mr. Gates' deposition, engage
in a settlement conference, and prepare for trial. While this
schedule is workable, it is not ideal. Accordingly, this
factor weighs slightly against reopening discovery.
not only is the request opposed, Plaintiff has labeled it a
“snipe hunt.” Doc. 75 at 3. While Defendant
protests that Plaintiff's objection is “limited and
not well-founded, ” Doc. 71 at 4, this factor
nevertheless weighs against reopening discovery.
Plaintiff asserts prejudice by the mere cost of proceeding
with additional discovery. Doc. 75 at 4 (citing Coombs v.
Hamilton, CIV 15-0898 WJ/WPL, Doc. 110 (D.N.M. Nov. 22,
2016)). The Court has reviewed the Coombs decision.
While it undoubtedly agrees with Magistrate Judge Lynch that
litigation is an expensive endeavor, the Court notes that
Judge Lynch ultimately reopened discovery in the
Coombs case. See Id. Moreover, here the
Court would not order that discovery be reopened carte
blanche, but for the limited purpose of allowing one
deposition. As Defendant Southwestern notes, Mr. Gates has
been cooperative, and it is unclear that a deposition will
even be required. However, Defendant Southwestern has
indicated that it will bear the burden and expense of
obtaining additional relevant documents from Gates and
provide them to Plaintiff. Accordingly, this factor weighs
neither for nor against reopening discovery.
Defendant asserts that it “only recently became aware
of Mr. Gates through a vendor/supplier after the close of
discovery in this case.” Doc. 71 at 1. Yet Defendant
does not detail its diligence other than to offer the
barebones conclusion that “discovery of this new
witness was unforseeable.” Doc. 71 at 5.
Plaintiff therefore protests that Defendant has
“offered no facts from which the Court could conclude
that it had been” diligent in obtaining discovery
during the Court's deadlines. Doc. 75 at 4. However, Mr.
Gates avers that he has “not utilized a bricks (sic)
and mortar-type store format for many years, nor do I operate
a website.” Doc. 71-1 at 2. And, nothing in
Plaintiff's discovery responses alerted Defendant
Southwestern to the location of Mr. ...