United States District Court, D. New Mexico
ORDER DENYING NMSU'S MOTION FOR LEAVE TO INCREASE
THE NUMBER OF INTERROGATORIES AND REQUEST FOR
Fashing, United States Magistrate Judge.
MATTER comes before the Court on defendants New Mexico State
University and New Mexico State University Board of
Regents' (collectively “NMSU”) Opposed Motion
Filed on Behalf of New Mexico State University for Leave to
Increase the Number of Interrogatories to be Answered by
Plaintiff and Extension of Time for Filing the Answers, filed
October 26, 2017 (Doc. 159), and Request for Setting Hearing
regarding the motion, filed November 16, 2017 (Doc. 184).
Plaintiff United States of America filed its response on
October 31, 2017 (Doc. 163), and NMSU filed a reply on
November 14, 2017, (Doc. 181).
motion, NMSU asks the Court to extend the maximum number of
interrogatories it may serve on the United States and for an
extension of time for the United States to respond. Doc. 159.
NMSU further requests a hearing on the motion. Doc. 184.
Having reviewed the submissions of the parties and the
relevant law, the Court finds that a hearing is unnecessary
and will deny the request. The Court further finds that the
motion is not well taken and will DENY it because it is
untimely and NMSU has not demonstrated excusable neglect for
its failure to file it on time.
Federal Rules of Civil Procedure provide that,
“[u]nless otherwise stipulated or ordered by the court,
a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts. Leave to
serve additional interrogatories may be granted to the extent
consistent with Rule 26(b)(1) and (2).” Fed.R.Civ.P.
33(a)(1). In this case, the parties agreed to serve a maximum
of 25 interrogatories on the other party. Doc. 22 at 9. Based
on this agreement, the Court issued a scheduling order on
October 17, 2016 that set the maximum number of
interrogatories each party may serve on the other party at
25. Doc. 27 at 1. The Local Rules require that, unless
otherwise ordered by the Court, a party must file a motion
seeking leave to serve more interrogatories than allowed by
Fed.R.Civ.P. 33. See D.N.M.LR-Civ. 26.5(b)
(“[A] party must file a motion in accordance
with D.N.M.LR-Civ. 7, which sets forth the proposed
interrogatories and explains why they are necessary.”)
(emphasis added). The Court's scheduling order advised
the parties that “[a]ny requests for additional
discovery must be submitted to the Court by motion prior
to the expiration of the discovery.” Doc. 27 at 2
(emphasis added). Despite these requirements, NMSU did not
file its motion seeking additional interrogatories until
after the fact discovery deadline passed. It therefore is
the course of discovery, the parties requested several
extensions of the scheduling order deadlines, which the Court
granted. See Docs. 43, 72, 79. In the Court's
most recent order, fact discovery was to be completed no
later than October 10, 2017. Doc. 79. On September 6, 2017,
NMSU propounded discovery to the United States that included
interrogatories 26 through 32-seven more than allowed in the
scheduling order-without first seeking leave to serve the
additional interrogatories. See Doc. 159 at 2-4. On
October 6, 2017, the United States served its responses and
objected to interrogatories 26 through 32 because they
exceeded the number of interrogatories permitted by the
scheduling order, and NMSU had not filed a motion for leave
to serve additional interrogatories. Doc. 159 at 2; Doc.
163-1 at 7-9. Instead of seeking leave to serve the
additional interrogatories prior to the October 10, 2017
deadline, NMSU waited until over two weeks after the deadline
to file its motion. Doc. 159 (filed October 26, 2017).
Court may, for good cause, extend the time “on [a]
motion made after the time has expired if the party failed to
act because of excusable neglect.” Fed.R.Civ.P.
6(1)(B). As the United States points out,
To demonstrate “excusable neglect” in these
circumstances, NMSU must show both “good faith”
in seeking the additional time to complete its discovery and
“a reasonable basis for not complying within the
specified time period.” Estate of Anderson v.
Denny's Inc., 291 F.R.D. 622, 631-31 (D.N.M. 2013)
(citing In re Four Season Sec. Law Litig., 493 F.2d
1288, 1290 (10th Cir. 1974)).
163 at 5. The Supreme Court has observed that “Congress
plainly contemplated that the courts would be permitted,
where appropriate, to accept late filings caused by
inadvertence, mistake, or carelessness, as well as by
intervening circumstances beyond the party's
control.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993). The
Supreme Court also observed, however, that
“inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute
‘excusable' neglect.” Id. at 392;
see also Quigley v. Rosenthal, 427 F.3d
1232, 1238 (10th Cir. 2005) (It is well established in the
Tenth Circuit “that inadvertence, ignorance of the
rules, and mistakes construing the rules do not constitute
excusable neglect for purposes of Rule 6(b).”).
“Even after Pioneer adopted an equitable
balancing test, several circuits have embraced the rule that
the excusable neglect standard can never be met by a showing
of inability or refusal to read and comprehend the plain
language of the federal rules.” United States v.
Torres, 372 F.3d 1159, 1163 (10th Cir. 2004) (collecting
cases) (internal citations and quotations omitted).
whether a party's neglect is excusable “is at
bottom an equitable one, taking account of all relevant
circumstances surrounding the party's omission.”
Pioneer, 507 U.S. at 395. To that end, in
determining whether a movant has shown excusable neglect, a
court should consider: (i) the danger of prejudice to the
opposing party; (ii) the length of the delay and its
potential impact on the judicial proceedings; (iii) the
reason for the delay, including whether it was within the
reasonable control of the movant; and (iv) whether the movant
acted in good faith. See Schupper v. Edie, 193
Fed.Appx. 744, 746 (10th Cir.2006) (unpublished) (internal
citations omitted). The reason for the delay is an important,
if not the most important, factor in this analysis.
Torres, 372 F.3d at 1163.
proffered reasons for failing to seek leave prior to the
close of fact discovery do not constitute excusable neglect.
NMSU first contends that counsel mistakenly applied the
interrogatory number limits applicable in state court as
opposed to the limits in the scheduling order. Doc. 181 at 3.
NMSU identified its mistake after the United States submitted
its responses on October 6, 2017. Id. NMSU then took
“action . . . to address the deficiencies in the United
States' [d]iscovery [r]esponses.” Id. That
“action, ” however, did not include filing a
motion seeking leave for additional interrogatories prior to
the October 10, 2017 deadline.NMSU explains that it was trying
to work out discovery disputes with the United States before
filing a motion. Doc. 181 at 5. While the Court appreciates
any attempt by the parties to resolve their differences, NMSU
did not begin to attempt to work out those disputes until
October 19, 2017-nine days after the fact discovery
deadline-and did not address the issue of the seven
additional interrogatories in her October 19, 2017 letter.
See Doc. 181 at 3; Doc. 181-1. NMSU also explains
that it was busy addressing discovery issues and responding
to discovery during this time frame, thereby neglecting to
file a motion for additional interrogatories. See
Doc. 181 at 4-5. Although the Court is sympathetic to the
large amount of time and energy that fact discovery in this
case has consumed, that counsel is overwhelmed with other
tasks does not constitute excusable neglect.
this is not the first time NMSU has been untimely in seeking
leave from the Court. Rather, NMSU has demonstrated a
consistent pattern of disregard for the deadlines throughout
the course of discovery. For example, NMSU failed to seek an
extension of time to respond to the United States' first
set of discovery requests until after its deadline to respond
had passed. Doc. 44 at 2. After the United States agreed to
an extension, NMSU failed to respond by the agreed-upon date.
Id.; see also Doc. 70 at 1-2 (in addressing
the timeliness issue, the Court found that NMSU's
response was untimely, but nonetheless addressed the
merits).NMSU filed its response to the United
States' first motion to compel more than 14 days after
the deadline. Docs. 45, 46. NMSU failed to comply with
the Court's June 30, 2017 order requiring that
descriptions of certain searches be produced by July 12,
2017. See Docs. 113 at 3, 113-1 at 2 n.1. Just
recently, on November 14, 2017, this Court granted the United
States' motion to quash subpoenas in part because NMSU
was not diligent in seeking the information, and because it
served the subpoenas after the discovery deadline had
passed. Doc. 179. NMSU's instant motion is the
latest in a series of failures to respect the deadlines in
the Federal Rules of Civil Procedure and those set by the
Court. NMSU's disregard for these rules does not exhibit
the fact discovery phase of this case was pending for almost
a year. Allowing additional interrogatories at this point
would require reopening fact discovery and cause further
delay. The United States would have to respond to the
additional interrogatories without the benefit of a
commensurate expansion of its own discovery requests, which
would be unfair. In short, the Pioneer factors weigh
decidedly in favor of denying NMSU's motion.
foregoing reasons, the Court finds that NMSU has not
demonstrated excusable neglect for failing to request leave
for additional interrogatories prior to the end of the
THEREFORE ORDERED that defendants' Opposed Motion Filed
on Behalf of New Mexico State University for Leave to
Increase the Number of Interrogatories to be Answered by
Plaintiff and ...