United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Plaintiff's Corrected
Motion to Extend Scheduling Order Deadlines and for Leave to
File Second Amended Complaint (Doc. 25) (“Corrected
Motion”). On May 15, 2018, the Honorable Judith C.
Herrera referred this motion to me for a recommended
disposition. Doc. 29. Having reviewed the parties'
submissions and all pertinent authority, the Court recommends
granting in part and denying in part Plaintiff's
case arises from a dispute regarding overtime pay. Plaintiff
filed his Original Class Action Complaint on May 23, 2017 on
behalf of “NM Class Members.” Doc. 1 at 2, ¶
5. In their Joint Status Report, the parties suggested
“[d]iscovery on issues necessary for class
certification purposes to be commenced in time to be
completed by April 1, 2018.” Doc. 9 at 5. They further
suggested that “[w]ithin 30 days of the outcome on
Plaintiff's motion for class certification, the parties
request permission to file a provisional discovery plan for
the Court's consideration regarding any additional
discovery that either party believes necessary to prepare the
case for trial.” Doc. 9 at 5. The Court entered a
Scheduling Order on August 9, 2017, that was silent as to
that request and that set the deadline for Plaintiff to move
to amend pleadings to December 15, 2017 and the termination
date for factual discovery to April 1, 2018. Doc. 11. On
November 21, 2017, with leave of the Court and within the
Scheduling Order's deadline, Plaintiff filed his First
Amended Complaint. Docs. 20, 21.
April 1, 2018, the same day discovery closed, Plaintiff filed
his request to extend the Scheduling Order and for leave to
file a Second Amended Complaint. Doc. 24. The next day,
Plaintiff re-filed the same motion (Doc. 25) but with fewer
exhibits, in order to comply with the page limit in Local
Rule 10.5. See Doc. 28. On May 21, 2018, Plaintiff
moved to certify the class. Doc. 30.
Federal Rule of Civil Procedure 16(b)(4) a scheduling order
may be modified “only for good cause and with the
judge's consent.” “Rule 16(b) does not focus
on the bad faith of the movant, or the prejudice to the
opposing party. Rather, it focuses on the diligence of the
party seeking leave to modify the scheduling order to permit
the proposed amendment.” Trujillo v. Bd. of Educ. of
the Albuquerque Pub. Sch., No. CIV 02-1146 JB/LFG, 2007 WL
2296955, at *3 (D.N.M. June 5, 2007). “[T]he court may
modify the schedule on a showing of good cause if it cannot
reasonably be met despite the diligence of the party seeking
the extension.” Walker v. THI of New Mexico at Hobbs
Ctr., 262 F.R.D. 599, 603 (D.N.M. 2009) (citing Fed.R.Civ.P.
16 advisory committee's notes to 1983 amendment).
Federal Rule of Civil Procedure 15(a)(2), a plaintiff may
only amend a complaint at a later stage of litigation
“with the opposing party's written consent or with
the court's leave.” Rule 15(a)(2) also advises that
“[t]he court should freely give leave when justice so
requires.” In this case, the Scheduling Order required
Plaintiff to move to amend by December 15, 2017, yet
Plaintiff did not make this motion for leave to amend until
April 1, 2018. It does not appear that the Tenth Circuit has
addressed the appropriate standard for motions to amend filed
after the scheduling order deadline. See, e.g., Minter v.
Prime Equipment Co., 451 F.3d 1196, 1205 n.4 (10th Cir.
2006). Judges in this District, however, have held that
“a motion to amend a pleading, filed after the
deadlines imposed by a scheduling order, is governed by the
‘good cause' standard of Rule 16(b) rather than the
more lenient Rule 15(a) standard.” Zuniga v. Bernalillo
County, Civ. 11-877 RHS/ACT, 2013 WL 12334141, at * 2 (D.N.M.
Mar. 18, 2013) (citations omitted). “The moving party
must first succeed in showing ‘good cause' for
modifying the Scheduling Order deadline for amending
pleadings, then the Court will apply Rule 15(a)(2) to
determine if it would be appropriate to grant the Motion to
Amend.” Id. (citations omitted).
Plaintiff requests that the Court extend the Scheduling Order
deadlines to allow him additional time to complete class
certification discovery, he has not shown good cause to
justify such an extension. Specifically, he fails to
demonstrate due diligence under the current Scheduling Order
first argues that he needs additional time for class
certification discovery because “Defendants have
refused to provide answers to basic written discovery in this
case.” Doc. 25 at 8. Defendants responded to
Plaintiff's First Set of Interrogatories and Requests for
Production on September 18, 2017. Docs. 25-3 at 19; 26-2.
Addressing objections in the discovery responses,
Plaintiff's counsel sent a good faith letter to
Defendants' counsel on October 24, 2017 (Doc. 25-7), and
another on November 13, 2017 (Doc. 25-6). Defendants'
counsel responded on December 29, 2017 (Doc. 26-3) and on
January 11, 2018 (Doc. 26-4). Plaintiff then did nothing
further to address Defendants' objections and did not
send any additional written discovery.
extent that Plaintiff now wishes to compel further responses
to his original written discovery, time has run out. See Doc.
27 at 3, 7, 9 (arguing Defendants' September 18, 2017
objections to written discovery were improper). Under this
District's Local Rules, “[a] party served with
objections to an interrogatory [or] request for production or
inspection . . . must proceed under D.N.M.LR-CIV 37.1 within
twenty-one (21) days of service of an objection . . .
.” D.N.M.LR-CIV 26.6. “Failure to proceed within
this time period constitutes acceptance of the objection,
” but the Court may alter this deadline on a showing of
good cause. Id. Plaintiff did not file a motion to
compel within the required time nor did he request an
extension of time to do so. Moreover, he also fails to show
good cause to allow him to do so now, more than six months
after receiving Defendants' responses, other than arguing
that he needs certain “withheld” information.
also contends that he needs additional time to complete class
certification discovery because “[t]he Parties have
also yet to take a single deposition in this case to obtain
necessary discovery to move for Rule 23 class certification,
evaluate the claims and defenses, evaluate potential
settlement, prepare dispositive motions and prepare for
trial.” Doc. 25 at 5. Yet the lack of discovery
conducted does not indicate that Plaintiff has been diligent
in completing discovery within the Scheduling Order
deadlines; rather, it has the opposite impact.
explains that there is a related action pending against
Defendants in the Western District of Texas (“Texas
case”), see Snively v. Peak Pressure Control, LLC, No.
7:15-cv-134-DC (W.D. Tex.), and that the parties have agreed
to use discovery from the Texas case in this action. Doc. 25
at 5-6. Plaintiff contends that more time for certification
discovery is needed here because Defendants have provided
piecemeal discovery responses in the Texas case only recently
produced thousands of documents in the that case. Doc. 25 at
10-11. While the Court appreciates Plaintiff's desire not
to duplicate discovery between the two cases, and certainly
encourages cost-saving measures, Plaintiff has not shown how
discovery in the Texas case excuses his lack ...