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Kennicott v. Sandia Corp.

United States District Court, D. New Mexico

November 20, 2018

LISA A. KENNICOTT, LISA A. GARCIA, SUE C. PHELPS, and JUDI DOOLITTLE, on behalf of themselves and a class of those similarly situated, Plaintiffs,
v.
SANDIA CORPORATION d/b/a SANDIA NATIONAL LABORATORIES, Defendant.

          Gretchen Mary Elsner Elsner Law & Policy, LLC Santa Fe, New Mexico --and-- Rachel Bien Outten & Golden LLP San Francisco, California --and-- Adam T. Klein Cheryl-Lyn D. Bentley Elizabeth V. Stork Outten & Golden LLP New York, New York --and-- David Lopez Outten & Golden LLP Washington, D.C. Anne Brackett Shaver Kelly Maureen Dermody Lin Yee Chan Michael Ian Levin-Gesundheit Shira J. Tevah Tiseme Gabriella Zegeye Lieff Cabraser Heimann & Bernstein, LLP San Francisco, California Attorneys for the Plaintiffs

          Justin E. Poore Cindy Jean Lovato-Farmer Sandia Corporation Albuquerque, New Mexico --and-- Michael S. Burkhardt Grace E. Speights Krissy A. Katzenstein Morgan, Lewis & Bockius LLP Washington, D.C. --and-- Scott D. Gordon Theresa W. Parrish Jeffrey L. Lowry Paola Viviana Jaime Stephanie L. Latimer Rodey, Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Plaintiffs' Letter from Anne B. Shaver, Lieff, Cabraser, Heimann & Bernstein, LLP, to the Court (dated November 12, 2018), filed November 12, 2018 (Doc. 187)(“Letter”); and (ii) the Letter from Krissy A. Katzenstein, Morgan Lewis, to the Court (dated November 15, 2018), filed November 15, 2018 (Doc. 188)(“Letter Response”). The primary issues are: (i) whether the Court should, at this time, decide Defendant's Motion to Dismiss Plaintiffs' Class Claims, filed August 9, 2018 (Doc. 155)(“MTD”); (ii) whether the Court should grant the proposed case schedule in the Plaintiffs' Letter, which modifies pretrial deadlines to which the parties stipulated in the Joint Proposed Case Schedule at 4, filed October 11, 2018 (Doc. 183), by requiring Defendant Sandia Corporation (“Sandia Labs”) to complete electronically stored information (“ESI”) production by January 4, 2019, and the Plaintiffs to submit their motion for class certification and expert reports by April 5, 2019, to accommodate a July 1, 2019, class certification hearing deadline; and (iii) whether the Court should grant the proposed case schedule in Sandia Labs' Letter Response, which modifies pretrial deadlines for the same reason and requires Sandia Labs to complete ESI production by February 1, 2019, and the Plaintiffs to submit their motion for class certification and expert reports by March 25, 2019. The Court will not, at this time, decide the MTD, because the Court will address the MTD after the class certification hearing. The Court will amend the Joint Proposed Case Schedule as described below and require Sandia Labs to complete ESI production on January 15, 2019, and the Plaintiffs to submit their motion for class certification and expert reports by March 25, 2019.

         FACTUAL BACKGROUND

         Plaintiffs Lisa A. Kennicott, Lisa A. Garcia, Sue C. Phelps, and Judi Doolittle allege that Sandia Labs, “a federally-funded research and development contractor operating under contract for the Department of Energy and managed by Sandia Corporation, ” First Amended Class Action Complaint ¶ 1, at 1, filed July 5, 2018 (Doc. 146)(“First Amended Complaint”), has “policies, patterns, and practices, ” which result in female employees earning lower compensation and fewer promotions than “their male counterparts, ” First Amended Complaint, ¶ 3, at 2. According to the Plaintiffs, Sandia Labs applies uniform policies in its offices throughout the United States of America. See First Amended Complaint ¶¶ 22-23, at 5-6. The Plaintiffs allege that Sandia Labs' employee performance evaluation process, see First Amended Complaint ¶¶ 26-30, at 6-7, initial salary calculations, see First Amended Complaint ¶¶ 31-35, at 7-8, and promotion system, see First Amended Complaint ¶¶ 36-40, at 8-9, disadvantage women, see First Amended Complaint ¶¶ 26-40, at 6-9.

         PROCEDURAL BACKGROUND

         Kennicott, Garcia, and Phelps sue Sandia Labs on behalf of themselves and a class of those similarly situated. See Class Action Complaint, filed February 7, 2017 (Doc. 1)(“Complaint”).[1]Doolittle joined Kennicott, Garcia, and Phelps as a named plaintiff when the Plaintiffs amended their Complaint. See First Amended Complaint at 1. In the First Amended Complaint, the Plaintiffs assert: (i) that Sandia Labs engages in intentional discrimination, violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-15 (“Title VII”); and (ii) that Sandia Labs engages in disparate impact discrimination in violation of Title VII. See Amended Complaint ¶¶ 85-99, at 21-23. Kennicott asserts individual Title VII claims against Sandia Labs for retaliation and constructive discharge. See Amended Complaint ¶¶ 100-08, at 23-24. Sandia Labs filed its MTD on August 9, 2018, arguing that the Plaintiffs are on a fishing expedition, because the First Amended Complaint is inconsistent with the Complaint; that the Plaintiffs cannot satisfy rule 23(a) of the Federal Rules of Civil Procedure's commonality requirement, or rule 23(b)(2)'s or (b)(3)'s requirements for class action certification; and that the Plaintiffs have not identified specific actions resulting in a disparate impact. See MTD at 1-3. Simultaneously, Sandia Labs requests that, to conserve resources, the Court stay discovery until the Court decides the MTD. See Motion to Stay Discovery Pending Ruling on Defendant's MTD Class Claims at 4, filed August 9, 2018 (Doc. 156). The Plaintiffs respond, averring that the First Amended Complaint satisfies the pleading requirements and that Sandia Labs' MTD mainly addresses class certification, which the parties will address when the Plaintiffs move to certify a class. See Plaintiffs' Response in Opposition to Defendant's MTD Plaintiffs' Class Claims at 1, filed August 23, 2018 (Doc. 157). In response to Sandia Labs' request to stay discovery, the Plaintiffs accuse Sandia Labs of attempting to delay discovery and argue that, because Sandia Labs will lose the MTD, discovery will continue regardless the MTD. See Plaintiffs' Response in Opposition to Defendant's Motion to Stay Discovery at 1, filed August 23, 2018 (Doc. 158).

         On October 11, 2018, the Plaintiffs filed a Joint Proposed Case Schedule. See Joint Proposed Case Schedule at 4. As part of the Joint Proposed Case Schedule, the parties stipulated to a discovery stay to end on December 14, 2018. See Joint Proposed Case Schedule at 2. The Joint Proposed Case Schedule provides for the following deadlines:

Event

Proposed Deadline

Stipulated discovery stay ends

December 14, 2018

Sandia completes production of ESI, including final privilege log

March 1, 2019

Pre-class certification discovery deadline

April 12, 2019

Plaintiffs submit motion for class certification and expert reports

May 9, 2019

Sandia submits opposition to class certification and expert reports

July 25, 2019

Plaintiffs submit reply motion and expert reports

September 13, 2019

Joint Proposed Case Schedule at 2.

         The Court held a hearing on the MTD on October 17, 2018. See Draft Transcript of Hearing at 1 (taken October 17, 2018)(“Tr.”).[2] At the hearing, the Court said it thought the MTD was an attempt to preempt and shortcut the Plaintiffs' upcoming motion for class certification without allowing the Plaintiffs to conduct discovery, and the Court said it would “sit” on the MTD for a while, planning to decide the MTD at or after the class certification hearing.[3] Tr. at 4:5-4:12 (Court). Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1234 (11th Cir. 2000)(“Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”). “In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982)(citing Fed.R.Civ.P. 23). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-52 (2011)("Wal-Mart”); Vallario v. Vandehey, 554 F.3d 1259, 1267 (10th Cir. 2009). In response to the Court's declination to decide the MTD immediately or promptly, the Court and the parties agreed that the parties and the Court would schedule a class certification hearing for July 1, 2019, and that the parties would modify the Joint Proposed Case Schedule to account for the July 1, 2019, class certification hearing. See Tr. at 37:25-38:12 (Court, Shaver, Katzenstein).

         1. The Letter.

         The Plaintiffs filed the Letter to notify the Court that the parties could not agree to a modified case schedule. See Letter at 1. The Plaintiffs state that they will struggle to meet the July 1, 2019, class certification hearing deadline and explain that Sandia Labs has refused to withdraw its MTD or speed its ESI production to allow the Plaintiffs to meet the July 1, 2019, class certification hearing deadline. See Letter at 2. According to the Plaintiffs, the parties each proposed a modified case schedule, and the Plaintiffs summarize the proposed schedules:

Event

Sandia's Proposed Deadline

Plaintiffs' Proposed Deadline

Stipulated discovery stay ends

November 30, 2018

November 26, 2018

Sandia completes production of ESI, including final privilege log

February 1, 2019

January 4, 2019

Pre-class certification discovery deadline

March 24, 2019

April 4, 2019

Plaintiffs submit motion for class certification and expert reports

March 25, 2019

April 5, 2019

Sandia submits opposition to class certification and expert reports

May 16, 2019

May 16, 2019

Plaintiffs submit reply motion and expert reports

June 18, 2019

June 18, 2019

Class certification hearing

July 1, 2019

July 1, 2019

Letter at 5.

         The Plaintiffs ask for “a minimum of three months after ESI is produced” to file the class certification motion and expert reports, but, according to the Plaintiffs, Sandia Labs wants to limit the Plaintiffs to seven weeks for the task. See Letter at 3. The Plaintiffs justify their request, explaining that Sandia Labs has refused to provide relevant compensation documents, promotion policy documents, and email information; that the Plaintiffs intend to compel Sandia Labs to produce these documents; and that the Plaintiffs anticipate needing to compel additional information, because Sandia Labs has been slow to provide discovery documents. See Letter at 3. The Plaintiffs also expect that the parties will “need to litigate a number of privilege-related disputes, ” because Sandia Labs produced an incomplete privilege log and has refused to produce “an augmented privilege log.” Letter at 4. The Plaintiffs further explain that the parties agreed to defer litigating the privilege log issues until after Sandia Labs completes ESI production and that the Plaintiffs anticipate other litigation following the ESI production's completion. See Letter at 4. According to the Plaintiffs, they will “have to review potentially millions of pages of documents, identify witnesses for fact depositions, and schedule and take those depositions” before filing their class certification motion and expert reports, and that the parties anticipate logistical difficulties scheduling witness meetings, because they must accommodate the witnesses' and the parties' schedules. Letter at 4. The Plaintiffs complain that Sandia Labs' schedule allows the Plaintiffs only seven weeks to complete the tasks listed above, and it grants Sandia Labs two months for ESI production, and six weeks for drafting responses to the class certification motion and expert reports. See Letter at 4. Accordingly, the Plaintiffs request either that the Court dismiss Sandia Labs' MTD or that the Court grant the Plaintiffs' proposed case schedule. See Letter at 5.

         2.The Letter Response.

         Sandia Labs responded to the Plaintiffs' Letter on November 15, 2018. See Letter Response at 1. In the Letter Response, Sandia Labs explains that, following the October 17, 2018, hearing, Sandia Labs proposed a case schedule that maintained the discovery stay, reduced Sandia Labs' time to complete ESI production, and reduced proportionately the parties' time to complete the class certification responses and replies. See Letter Response at 1. According to Sandia Labs, the Plaintiffs, in response, suggested that Sandia Labs complete ESI production by December 14, 2018, the date that the parties' stipulated discovery stay ends. Sandia Labs depicts this proposal as an attempt to “back out of the stipulated discovery stay.” Letter Response at 1. Sandia Labs explains that it then proposed two months for its ESI production and two months for pre-class certification discovery. See Letter Response at 2.

         Sandia Labs complains that the Plaintiffs' proposed case schedule requires Sandia Labs to complete ESI production, involving “millions of pages of documents, ” in six weeks “during the holiday season.” Letter Response at 2. Sandia Labs also worries that the Plaintiffs' proposed case schedule shortens Sandia Labs' time for responding to the Plaintiffs' class certification motion and expert reports from seventy-five to forty-one days, but gives the Plaintiffs thirty-two days for replying to the response; this change shortens Sandia Labs' response time by forty-five percent and the Plaintiffs' reply time by thirty-six percent. See Letter Response at 2. Sandia Labs avers that the Plaintiffs' request for additional time for discovery and preparation before their class certification motion reflects that the Plaintiffs “have no idea what this case is about or who the relevant witnesses are.” Letter Response at 2.

         Sandia Labs also responds to the Plaintiffs' complaints about its discovery production. See Letter Response at 3. Addressing the Letter's allegations, Sandia Labs indicates that: (i) the parties have disputed the 2018 policy document production since May, 2018, and the Plaintiffs could move to compel the information; (ii) the Plaintiffs identified their concerns about deficiencies regarding other policy, compensation, and correspondence production shortly before the stipulated discovery stay, and Sandia Labs is prepared to address these issues; (iii) the Plaintiffs addressed their concerns about the privilege log shortly before the parties agreed to the stipulated discovery stay, although Sandia Labs produced the privilege log more than nine months before the Plaintiffs mentioned their concerns; (iv) the Plaintiffs could have challenged Sandia Labs' attorney-client privilege assertions earlier. See Letter Response at 3. Accordingly, Sandia Labs asks the Court to grant its MTD or adopt Sandia Labs' proposed case schedule. See Letter Response at 4.

         3.The Letter Reply.

         The Plaintiffs replied on November 15, 2018, to Sandia Labs' Letter Response. See Letter from Anne B. Shaver, Lieff, Cabraser, Heimann & Bernstein, LLP, to the Court at 1-2 (dated November 15, 2018), filed November 15, 2018 (Doc. 189)(“Letter Reply”). First, the Plaintiffs dispute Sandia Labs' allegations that the Plaintiffs have delayed in bringing motions to compel. See Letter Reply at 1. The Plaintiffs explain that the parties agreed, and informed the Court, that the parties would resolve the motions to compel “once the ESI custodians are resolved or ESI production is complete.” Letter Reply at 1. Second, the Plaintiffs aver that the parties have recognized since the case's beginning that the Plaintiffs require ESI production, and that commonsense dictates that ESI production will help the Plaintiffs identify witnesses to depose. See Letter Reply at 2. Third, the Plaintiffs explain that they identified discovery deficiencies well before agreeing to the stipulated discovery stay in October, 2018. See Letter Reply at 2. Finally, the Plaintiffs note that Sandia Labs has offered no reason why it cannot complete ESI production by January 4, 2019, the Plaintiffs' proposed ESI production deadline. See Letter Reply at 2. The Plaintiffs summarize:

[A]ssuming Sandia has a good faith reason for not completing ESI production by January 4, the appropriate remedy is not simply to move that date in a way that prejudices Plaintiffs by unfairly squeezing their review time but to adjust the remainder of the schedule so that neither side is prejudiced.

Letter Reply at 2.

         LAW REGARDING RULE 12(b)(6)

         Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The Complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a MTD.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006))).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555.

         To survive an MTD, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit has stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Bd. of Cty. Comm'rs, 278 F.Supp.3d 1245, 1259 (D.N.M. 2017)(Browning, J.).

         “When a party presents matters outside of the pleadings for consideration, as a general rule ‘the court must either exclude the material or treat the motion as one for summary judgment.'” Brokers' Choice of Am., Inc. v. NBC Universal Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322; (ii) ”documents referred to in the complaint if the documents are central to the plaintiffs claim and the parties do not dispute the documents' authenticity, ” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and (iii) ”matters of which a court may take judicial notice, ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. See Brokers' Choice of Am., Inc. v. NBC Universal Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a TV episode on a rule 12(b)(6) motion, which were “attached to or referenced in the amended complaint, ” central to the plaintiffs claim, and “undisputed as to their accuracy and authenticity”). “[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).

         In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their motion with numerous documents, and the district court cited portions of those motions in granting the [MTD].” 627 F.3d at 1186. The Tenth Circuit held that “[s]uch reliance was improper” and that, even if “the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee's factual assertions and effectively convert the motion to one for summary judgment.” 627 F.3d at 1186-87. In other cases, the Tenth Circuit has emphasized that, “[b]ecause the district court considered facts outside of the complaint . . . it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).” Nard v. City of Okla. City, 153 Fed.Appx. 529, 534 n.4 (10th Cir. 2005)(unpublished).[4] In Douglas v. Norton, 167 Fed.Appx. 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission -- which the Tenth Circuit analogized to a statute of limitations -- and concluded that, because the requirement was not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and “because the district court considered evidentiary materials outside of Douglas' complaint, it should have treated Norton's motion as a motion for summary judgment.” 167 Fed.Appx. at 704-05.

         The Court has previously ruled that, when a plaintiff references and summarizes defendants' statements in a complaint, the Court cannot rely on documents containing those statements that the defendants attach in their briefing. See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court reasoned that the statements were neither incorporated by reference nor central to the plaintiff's allegations in the complaint, because the plaintiff cited the statements only to attack the defendant's reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when determining whether to toll a statute of limitations in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to an MTD, which show that a plaintiff was aware of the defendant's alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, No. CIV 11-1129 JB/KBM, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.)(“Crabtree”). The Court in Crabtree determined that the documents did not fall within any of the Tenth Circuit's exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23; Mocek v. City of Albuquerque, 2013 WL 312881, at *50 (refusing to consider statements that were not “central to [the plaintiffs] claims”).

         On the other hand, in a securities class action, the Court has ruled that a defendant's operating certification, to which plaintiffs refer in their complaint, and which was central to whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule, so the Court may consider the operating certification when ruling on the defendant's MTD without converting the motion into one for summary judgment. See Genesee Cty. Emps.' Ret. Sys. v. Thornburg Mortg. Secs. Tr. 2006-3, 825 F.Supp.2d 1082, 1150-51 (D.N.M. 2011)(Browning, J.). See also Sec. & Exch. Comm'n v. Goldstone, 952 F.Supp.2d 1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering, on a MTD, electronic mail transmissions referenced in the complaint as “documents referred to in the complaint, ” which are “central to the plaintiffs claim” and whose authenticity the plaintiff did not challenge); Mata v. Anderson, 760 F.Supp.2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents outside of the complaint because they were “documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute”).

         LAW REGARDING MODIFICATION OF SCHEDULING ORDERS

         Rule 16 of the Federal Rules of Civil Procedure provides that courts will, with some exceptions, issue scheduling orders in each case:

         (b) Scheduling.

(1) Scheduling Order Except in categories of actions exempted by local rule, the district judge -- or a magistrate judge when authorized by local rule -- must issue a scheduling order:
(A) after receiving the parties' report under Rule 26(f);[5] or
(B) after consulting with the parties' attorneys and any unrepresented parties at a scheduling conference.
(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.
(3) Contents of the Order.
(A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.
(B) Permitted Contents. The scheduling order may:
(i) modify the timing of disclosures under Rules 26(a)[6] and 26(e)(1);[7]
(ii) modify the extent of discovery;
(iii) provide for disclosure, discovery, or preservation of electronically stored information;
(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;[8]
(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;
(vi) set dates for pretrial conferences and for trial; and
(vii) include other appropriate matters.

Fed. R. Civ. P. 16(b).

         “The District Court has wide discretion in its regulation of pretrial matters.” Si-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990). Scheduling orders, however, “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). Accord Street v. Curry Bd. of Cty. Comm'rs, No. CIV 06-0776 JB/KBM, 2008 WL 2397671, at *6 (D.N.M. Jan. 30, 2008)(Browning, J.). The advisory committee notes to rule 16 observe:

[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. Since the scheduling order is entered early in the litigation, this standard seems more appropriate than a “manifest injustice” or “substantial hardship” test. Otherwise, a fear that extensions will not be granted may encourage counsel to request the longest possible periods for completing pleading, joinder, and discovery.

Fed. R. Civ. P. 16(b)(4) advisory committee's note to 1983 amendment.

         The Tenth Circuit has held that the concepts of good cause, excusable neglect, and diligence are related. “The Tenth Circuit . . . has recognized the interrelation between ‘excusable neglect' and ‘good cause.'” Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. 295, 301 (D. Kan. 1996)(Rushfelt, J.)(citing Broitman v. Kirkland (In re Kirkland), 86 F.3d 172, 175 (10th Cir. 1996)(“In re Kirkland”)). “Properly construed, ‘good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts.” Street v. Curry Bd. of Cty. Comm'rs, 2008 WL 2397671, at *6 (quoting Fed.R.Civ.P. 16(b)). See Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d 1285, 1313 (D.N.M. 2010)(Browning, J.)(noting that the “rule 16(b) good-cause inquiry focuses on the diligence of the party seeking [to] amend the scheduling order.”). In In re Kirkland, the Tenth Circuit dealt with the definition of “good cause” in the context of a predecessor to modern rule 4(m) of the Federal Rules of Civil Procedure, [9] and noted:

[W]ithout attempting a rigid or all-encompassing definition of “good cause, ” it would appear to require at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice, and some showing of “good faith on the part of the party seeking the enlargement and some reasonable basis for noncompliance within the time specified” is normally required.

86 F.3d at 175 (emphasis in original)(internal quotation marks omitted)(quoting Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987)). The Tenth Circuit explained that Putnam v. Morris “thus recognized that the two standards, although interrelated, are not identical and that ‘good cause' requires a greater showing than ‘excusable neglect.'” In re Kirkland, 86 F.3d at 175.

         Where a party is diligent in its discovery efforts and nevertheless cannot comply with the scheduling order, the Court has found good cause to modify the scheduling order if the requesting party timely brings forward its request. In Advanced Optics Electronics, Inc. v. Robins, the Court concluded that, where the defendant did not conduct discovery or make any good-faith discovery requests, and where the defendant did not make efforts “diligent or otherwise” to conduct discovery, the defendant did not, therefore, show good cause to modify the scheduling order. 769 F.Supp.2d at 1313 n.8. In Street v. Curry Board of County Commissioners, No. CIV 06-0776 JB/KBM, 2008 WL 2397671 (D.N.M. Jan. 30, 2008)(Browning, J.), however, the Court concluded that the plaintiff had “shown good cause for a delay in seeking leave to amend, ” because she “was diligent in pursuing discovery . . . [and] brought to the Court's attention her identification of an additional claim in a timely manner, ” where she discovered the claim through “documents provided in discovery.” 2008 WL 2397671, at *11. In Montoya v. Sheldon, No. CIV 10-0360 JB/WDS, 2012 WL 5353493 (D.N.M. Oct. 7, 2012)(Browning, J.), the Court did not find good cause to modify the scheduling order and reopen discovery, and refused to grant the plaintiffs' request to do so, where the plaintiffs' excuse for not disclosing their expert before the close of discovery was that they thought that the case would settle and they would thus not require expert testimony. See 2012 WL 5353493, at *14. The Court noted:

The [plaintiffs] filed this case on April 15, 2010. Because [Plaintiff] D. Montoya had seen the physician before that date, the fact that the [plaintiffs] are only now bringing the physician forward as a newly identified expert witness, over two years later, and over one and a half years after the deadline to disclose expert witnesses, does not evidence circumstances in which the Court can find excusable neglect nor good cause.

2012 WL 5353493, at *14.

         In Scull v. Management & Training Corp., No. CIV 11-0207 JB/RHS, 2012 WL 1596962 (D.N.M. May 2, 2012)(Browning, J.), the Court denied a plaintiffs request for an extension of time to name an expert witness against a defendant. 2012 WL 1596962, at *9. The plaintiff asserted that he had waited to name an expert witness until a second defendant joined the case, but a scheduling order was in effect before the second defendant entered the case. 2012 WL 1596962, at *4, *8-9. The Court concluded that the plaintiff should have known that he would need to name an expert witness against the defendant already in the case. See 2012 WL 1596962, at *8. The Court determined that the plaintiff was seeking “relief from his own disregard” for the deadline. 2012 WL 1596962, at *8. “Despite his knowledge that [defendant] PNA had yet to enter the case, [plaintiff] Scull chose to allow the deadline to pass without naming expert witnesses against [defendant] MTC.” 2012 WL 1596962, at *8. Regarding the defendant who entered the case at a later date, however, the Court allowed the plaintiff an extension of time to name an expert witness, because it “was not unreasonable for Scull to expect a new deadline to name expert witnesses upon PNA's entrance into the case because he had not yet had the opportunity to engage in discovery against PNA as he had against MTC.” 2012 WL 1596962, at *9. The Court also noted that not naming an expert witness “is a high price to pay for missing a deadline that was arguably unrealistic when it was set, ” as Scull could not have determined the need for an expert witness until after PNA entered the case. 2012 WL 1596962, at *9.

         In Stark-Romero v. National Railroad Passenger Co. (AMTRAK), 275 F.R.D. 544 (D.N.M. 2011)(Browning, J.), the Court concluded that a lawyer had shown excusable neglect when he missed a scheduling deadline because, soon after his son's wedding, his father-in-law developed a tumor in his chest, and the lawyer arranged his father-in-law's medical care, and only after the lawyer returned to his work did he realize that a deadline passed. See 275 F.R.D. 549-50. The Court noted that the lawyer could have avoided missing the deadline had he not left his work until the last minute, just before his son's wedding, but concluded that the lawyer had demonstrated good faith and missed the deadline because of “life crises, ” and not because of his inadvertence. 275 F.R.D. 549-50. In West v. New Mexico Taxation and Revenue Department, No. CIV 09-0631 JB/CEG, 2010 WL 3834341 (D.N.M. July 29, 2010)(Browning, J.), the Court allowed a plaintiff extended time to file a response to a defendant's motion for summary judgment, in part because of the difficulty that the plaintiffs counsel experienced attempting to obtain depositions with certain defense witnesses, and thus it was not her fault, and in part because cross-motions on summary judgment are particularly helpful for the Court:

[C]ross-motions tend to narrow the factual issues that would proceed to trial and promote reasonable settlements. In some cases, it allows the Court to determine that there are no genuine issues for trial and thereby avoid the expenses associated with trial. The Court prefers to reach the merits of motions for summary judgment when possible.

2010 WL 3834341, at *4-5. On the other hand, in Liles v. Washington Tru Solutions, LLC, No. CIV 06-854 JB/CEG, 2007 WL 2298440 (D.N.M. June 13, 2007)(Browning, J.), the Court denied a plaintiffs request for additional time to respond to a defendant's motion for summary judgment, when the only rationale that the plaintiff provided was that its counsel's “family and medical emergencies” precluded the plaintiff from timely responding. 2007 WL 2298440, at *2. See Gallegos v. Wood, No. CIV 13-1055 JB/KBM, 2017 WL 3701866, at *38 (D.N.M. Aug. 25, 2017)(Browning, J.)(determining that the plaintiffs established “good cause” when the plaintiffs relied on the United States' initial assurances that it would not object to an extension for designating expert witnesses); Trujillo v. Rio Arriba Cty., No. CIV 15-0901 JB/WPL, 2016 WL 4035340, at *10 (D.N.M. June 15, 2016)(Browning, J.)(concluding that “good cause” existed for extending discovery when a plaintiff missed a discovery deadline, because the plaintiff relied on the defendants' assertions while working with the defendants' schedule to organize depositions); Upky v. Lindsey, No. CIV 13-0553 JB/GBW, 2015 WL 3543058, at *6-7 (D.N.M. May 14, 2015)(Browning, J.)(granting a scheduling modification to obtain a firm trial date, and stating that the Court would not modify a pretrial schedule because a witness' deposition could only be done by videotape); Peshlakai v. Ruiz, No. CIV 13-0752 JB/ACT, 2013 WL 6503604, at *14-15 (D.N.M. Nov. 20, 2013)(Browning, J.)(allowing a scheduling modification where the plaintiffs shaped “their initial expert strategy around apparent misinformation” and later discovered that they required an expert, and rejecting the argument that postponing trial and requiring the defendants' to revise their summary judgment briefing would incurably prejudice the defendants); United States v. Hopkins, No. CIV 11-0416 JB/CG, 2012 WL 6846400, at *6 (D.N.M. Dec. 22, 2012)(Browning, J.)(concluding that, where a plaintiff proceeded “pro se, from federal prison, ” and sought information from the United States, which possessed the information sought, the plaintiff showed good cause).

         LAW REGARDING GOOD CAUSE AND EXCUSABLE NEGLECT

         The Tenth Circuit has “recognized the interrelation between ‘excusable neglect' and ‘good cause.'” Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. at 301 (citing In re Kirkland, 86 F.3d at 175). In general, the phrases “good cause” and “excusable neglect” are assumed to have the same meaning in various statutory contexts. Courts generally presume that a drafter of a statute intends identical language in statutes with similar purposes to have the same meaning. See Merrill Lynch, Pierce, Fenner & Smith v. Dabit 547 U.S. 71, 85-86 (2006)(Stevens, J.). Moreover, “[t]he rules of statutory construction apply to the Federal Rules.” In re Kubler, No. MC 11-0048 JB, 2012 WL 394680, at *11 (D.N.M. Jan. 25, 2012)(Browning, J.). Accord Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)(applying the expressio unius est exclusio alterius canon[10] to interpret rule 9(b) of the Federal Rules of Civil Procedure); Hillis v. Heineman, 626 F.3d 1014, 1017-18 (9th Cir. 2010)(“This same principle of statutory construction applies to interpreting the Federal Rules of Civil Procedure.”). The Court, for example, has relied upon the meaning of “good cause” under rule 16 of the Federal Rules of Civil Procedure -- which concerns amendments of scheduling orders -- when interpreting “good cause” under rule 32 of the Federal Rules of Criminal Procedure -- which concerns criminal sentencing and judgment. United States v. Jones, No. CR 14-0769 JB, 2016 U.S. Dist. LEXIS 9938, at *8-11 (D.N.M. Jan. 15, 2016)(Browning, J.).

         In the civil rule 16 context, the Court has stated that the good-cause inquiry focuses on the diligence of the party seeking to amend a scheduling deadline. See Walker v. THI of N.M. at Hobbs Ctr., 262 F.R.D. 599, 602-03 (D.N.M. 2009)(Browning, J.); Guidance Endodontics, LLC v. Dentsply Int'l, Inc., No. CIV 08-1101 JB/RLP, 2009 WL 3672505, at *2-3 (D.N.M. Sept. 29, 2009)(Browning, J.); Trujillo v. Bd. of Educ. of the Albuquerque Pub. Schs., Nos. CIV 02-1146 JB/LFG, CIV 03-1185 JB/LFG, 2007 WL 2296955, at *3 (D.N.M. June 5, 2007)(Browning, J.). The Court has concluded that, “[p]roperly construed, ‘good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts.” Advanced Optics Elecs., Inc. v. Robins, 769 F.Supp.2d at 1313. Accord Gerald v. Locksley, No. CIV 10-0721 JB/LFG, 2011 WL 3510845, at *13-14 (D.N.M. Aug. 1, 2011)(Browning, J.). Thus, “the moving party [must] show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006).

         Where a party is diligent in its discovery efforts and nevertheless cannot comply with the scheduling order, the Court has found good cause to modify the scheduling order if the requesting party timely brings forward its request. For example, in Advanced Optics Electronics, Inc. v. Robins, the Court found that, where the defendant did not conduct discovery or make any good-faith discovery requests, and where the defendant did not make efforts “diligent or otherwise” to conduct discovery, the defendant did not show good cause to modify the scheduling order. 769 F.Supp.2d at 1313 n.8. By contrast, in Street v. Curry Board of County Commissioners, the Court found that the plaintiff had “shown good cause for a delay in seeking leave to amend, ” because she “was diligent in pursuing discovery . . . [and] brought to the Court's attention her identification of an additional claim in a timely manner, ” where she discovered the claim through “documents provided in discovery.” 2008 WL 2397671, at *11. The Court arrived at a similar determination in Abraham v. WPX Production Productions, LLC, No. CIV 06-0776 JB/KBM, 2016 WL 548251 (D.N.M. Jan. 25, 2016)(Browning, J.). There, the Court found good cause to amend a pleading when the plaintiffs had a very short amount of time to amend the pleadings, “even though discovery had only just begun.” 2016 WL 548251, at *20. “The Plaintiffs may not have obtained or reviewed all of the documents that might reveal their conspiracy claim's existence before the deadline to amend passed.” 2016 WL 548251, at *20. Furthermore, the delay was minimal and would not prejudice the defendants. See 2016 WL 548251, at *20.

         Overall, good cause requires diligence and a conscientious attempt to comply with the Court's scheduling order. When parties have not done so, the Court has not found good cause. In Montoya v. Sheldon, the Court did not find good cause to modify the scheduling order and reopen discovery where the plaintiffs' excuse for not disclosing their expert before the close of discovery was that they thought the case would settle and they would thus not require expert testimony. See 2012 WL 5353493, at *14. The Court noted:

The [plaintiffs] filed this case on April 15, 2010. Because [Plaintiff] D. Montoya had seen the physician before that date, the fact that the [plaintiffs] are only now bringing the physician forward as a newly identified expert witness, over two years later, and over one and a half years after the deadline to disclose expert witnesses, does not evidence circumstances in which the Court can find excusable neglect nor good cause.

2012 WL 5353493, at *14.

         The Tenth Circuit has previously considered the meaning of “excusable neglect” in the context of relief from a final judgment, order, or proceeding under rule 60(b) of the Federal Rules of Civil Procedure. United States v. Timers Pres., 999 F.2d 452, 454 (10th Cir. 1993). “[T]hree requirements . . . must be met when setting aside a default judgment under Rule 60(b): (1) the moving party's culpable conduct did not cause the default; (2) the moving party has a meritorious defense; and (3) the non-moving party will not be prejudiced by setting aside the judgment.” United States v. Timers Pres., 999 F.2d at 454 (citing Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987); INVST Fin. Grp., Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 398 (6th Cir. 1987); 6 James W. Moore, et al., Moore's Federal Practice ¶ 55.10[1] (2d ed. 1992)). In determining whether a party's neglect is excusable, the question

“is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Relevant factors include “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.”

Jennings v. Rivers, 394 F.3d 850, 856-57 (10th Cir. 2005)(quoting Pioneer Inv. Servs. Co. v. Brunswich Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)(“Pioneer”)). In this context, as in others, the Tenth Circuit has stated that the reason for delay is an important, if not the most important, factor in this analysis. See Hamilton v. Water Whole Int'l Corp., 302 Fed.Appx. 789');">302 Fed.Appx. 789, 798 (10th Cir. 2008)(unpublished)(citing United States v. Torres, 372 F.3d 1159, 1163 (10th Cir. 2004)(analyzing the excusable neglect standard in the context of rule 4(b)(4) of the Federal Rules of Appellate Procedure, where the party filed an untimely notice of appeal)).

         The relevant factors that the Tenth Circuit used in Jennings v. Rivers with regard to 60(b)(1) have been used to determine whether excusable neglect exists in a number of other contexts. See Pioneer, 507 U.S. at 395 (discussing application of the excusable neglect standard to Federal Rules Bankruptcy Procedure 9006(b)(1)); In re Kirkland, 86 F.3d at 175 (concluding that in Pioneer “the Supreme Court [ of the United States] relied upon use of the term ‘excusable neglect' in a broad sense in Rules 6(b), 13(f), 60(b)(1), and 60(b)(6), ” but that the Pioneer factors did not apply to the “good cause” standard under rule 4(j)); City of Chanute v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994)(“Thus, we apply the Pioneer test for ‘excusable neglect' under Fed. R App. P. 4(a)(5).”); United States v. Torres, 372 F.3d at 1162 (“We now likewise conclude that the Supreme Court's construction of ‘excusable neglect' in Pioneer also applies to the term ‘excusable neglect' as it is used in Federal Rule of Appellate Procedure 4(b)(4).”). Deliberate tactics do not create excusable neglect; “‘[e]xcusable litigation mistakes are not those which were the result of a deliberate and counseled decision by the complaining party . . . .;' rather, they are the ‘kinds of mistakes that a party could not have protected against.'” Thompson v. THI of N.M. at Casa Arena, No. CIV 05-1331 JB/LCS, 2008 WL 5999653, at *18 (D.N.M. Dec. 24, 2008)(Browning, J.)(quoting Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999)).

         The Court has applied the Pioneer factors to find that a party demonstrated excusable neglect when its attorney failed to respond to a motion for summary judgment, because its attorney mistakenly thought that the Court's vacating a scheduling order meant there was no deadline for filing responsive pleadings. See Estate of Anderson v. Denny's, Inc., No. CIV 12-0605 JB/GBW, 2013 WL 690809, at *13-14 (D.N.M. Feb. 7, 2013)(Browning, J.). The Court noted that the attorney's failure to file a responsive pleading was not unintentional, as the attorneys' misunderstanding of local court rules caused him to think that he did not need to respond. See 2013 WL 690809, at *14. The Court also noted that the attorney was honest with his reason for not filing, as he did not make up an excuse of catastrophic circumstances precluding him from responding. See 2013 WL 690809, at *14. The Court recognized that granting the party leave to file a late response was “generous, ” and that the attorney's failure to respond was “barely excusable.” 2013 WL 690809, at *14. The Court also explained that it is bound by Tenth Circuit precedent requiring the Court to determine motions for summary judgment on their merits, rather than granting such motions for procedural defaults. See 2013 WL 690809, at *14 (citing Reed v. Bennett, 312 F.3d 1190, 1196 (10th Cir. 2002)). The Court also found that the prejudice to the party requesting summary judgment was little, as the only costs the party would incur are those it would also have incurred had the attorney timely responded. See Estate of Anderson v. Denny's, Inc., 2013 WL 690809, at *14-15.

         By contrast, the Court has denied a plaintiffs request for an extension of time to name an expert witness against a defendant, when the plaintiff asserted that he had waited to name an expert witness until a second defendant joined the case, because, before the second defendant entered the case, a scheduling order was in effect, and the plaintiff should have known that he would need to name an expert witness against the defendant already in the case. See Scull v. Mgmt. & Training Corp., 2012 WL 1596962, at *8. The Court stated that the plaintiff was seeking “relief from his own disregard” for the deadline. 2012 WL 1596962, at *8. “Despite his knowledge that [Defendant] PNA had yet to enter the case, [Plaintiff] Scull chose to allow the deadline to pass without naming expert witnesses against [Defendant] MTC.” 2012 WL 1596962, at *8. Regarding the defendant who entered the case at a later date, however, the Court allowed the plaintiff an extension of time to name an expert witness, as it “was not unreasonable for Scull to expect a new deadline to name expert witnesses upon PNA's entrance into the case because he had not yet had the opportunity to engage in discovery against PNA as he had against MTC.” 2012 WL 1596962, at *9. The Court also noted that not naming an expert witness “is a high price to pay for missing a deadline that was arguably unrealistic when it was set, ” as Scull could not have determined the need for an expert witness until after PNA entered the case. 2012 WL 1596962, at *9.

         In Stark-Romero v. National Railroad Passenger Co. (AMTRAK), the Court found that a lawyer had shown excusable neglect when his reason for missing a scheduling deadline was that soon after his son's wedding, his father-in-law developed a tumor in his chest, the lawyer arranged his father-in-law's medical care, and only after the lawyer returned to his work did he realize that a deadline passed. See 275 F.R.D. at 549-50. The Court noted that the lawyer could have avoided missing the deadline had he not left his work until the last minute, just before his son's wedding, but found that the lawyer had demonstrated good faith and missed the deadline because of “life crises, ” and not his own inadvertence. 275 F.R.D. at 549-50. On the other hand, in Liles v. Washington Tru Solutions, LLC, the Court denied a plaintiffs request for additional time to respond to a defendant's ...


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