United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING FIDELITY
BANK'S MOTION TO EXTEND EXPERT DISCLOSURE
H. RITTER UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Fidelity Bank's
Motion to Extend Expert Disclosure Deadline.
[Doc. 58]. The Court, having considered the parties'
submissions, the relevant law, and being otherwise fully
advised in the premises finds that the Motion is well taken
and should be granted.
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of alleged breaches of a Mortgage Loan
Servicing Rights Purchase Agreement (Agreement) by which LANB
sold Fidelity the servicing rights to approximately 4, 500
mortgage loans on real property in northern New Mexico. [Doc.
30-1]. The Agreement provides Fidelity several options in the
event of a “defect” with any of the mortgages
whose servicing rights Fidelity purchased. [Doc. 30-1, p.
31]. According to Fidelity, claims by the Pueblos of Nambe,
Pojoaque, San Ildefonso, and Tesuque that certain county
roads built by the County of Santa Fe trespass on tribal land
impact the access roads to approximately 240 real properties
subject to mortgages now serviced by Fidelity by virtue of
the Agreement with LANB. [Doc. 4, pp. 9-11]. Fidelity further
contends that the disputed access roads cloud title to the
mortgaged properties. [Id., p. 10].
April 11, 2018, Fidelity wrote to LANB asserting that the
Pueblos' Access Claims clouded title to approximately 240
mortgaged properties, rendering those mortgage loans
“defective” within the meaning of the Agreement.
[Doc. 30-2]. Fidelity demanded that LANB repurchase the
defective loans. [Id.]. LANB refused and filed this
declaratory judgment action, seeking a declaration that LANB
did not cause a defect in the mortgage loans or servicing
rights, has no obligation to repurchase the mortgage loans or
servicing rights, and did not breach the Agreement. [Doc. 1].
Fidelity brought contractual and tort counterclaims against
LANB, specifically, breach of contract, breach of the implied
covenant of good faith and fair dealing, intentional
misrepresentation, fraud by silence, and negligent
misrepresentation. [Doc. 4, pp. 4-17].
Court entered a Scheduling Order on September 19, 2018, which
provided that LANB was to disclose its experts by January 25,
2019, Fidelity was to disclose its experts by February 25,
2019, and the termination of discovery was to be April 25,
2019. [Doc. 24, p. 2');">p. 2');">p. 2');">p. 2]. On January 4, 2019, LANB filed an
Unopposed Motion to Modify the Pretrial Deadlines, which the
Court granted January 7, 2019. [Doc. 40; Doc. 41]. The Order
modifying the pretrial deadlines set the parties' expert
disclosure deadline for affirmative experts for April 25,
2019, the parties' deadline to disclose rebuttal experts
as May 27, 2019, and the termination of discovery for July
24, 2019. [Doc. 41, p. 1]. On March 29, 2019, LANB filed a
Stipulation to Modify the Pretrial Deadlines to set
Fidelity's expert disclosure deadline for April 25, 2019,
LANB's expert disclosure deadline for July 24, 2019, and
the termination of discovery for October 4, 2019. [Doc. 53,
p. 1]. The Court entered an Amended Scheduling Order adopting
the parties' stipulated modification of the pretrial
deadlines on April 1, 2019.[1" name=
"FN1" id="FN1">1] [Doc. 54].
April 19, 2019, Fidelity moved for an extension of its April
25, 2019 expert disclosure deadline, seeking an additional 30
days to disclose its damages experts. [Doc. 58]. Fidelity
disclosed a Geographical Information Systems (GIS) expert on
the deadline, but claims that its experts on damages will
rely on the GIS experts' 225-page report and it seeks an
addition 30 days for them to review the GIS report and
generate reports of their own. [Doc. 70, p. 2');">p. 2');">p. 2');">p. 2].
16(b)(4) provides that a scheduling order “may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). “In practice,
this standard requires the movant to show the scheduling
deadlines cannot be met despite [the movant's] diligent
efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat.
Bank Ass'n, 1 F.3d 1230');">771 F.3d 1230, 1240 (10th Cir. 2014)
(alteration in original) (internal quotation marks and
Tenth Circuit has identified several factors to use in
determining if good cause to modify a scheduling order
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
Smith v. United States, 166');">834 F.2d 166, 169 (10th Cir.
1987); Derrick v. Standard Nutrition Co., No.
17-CV-1245 RB/SMV, 2018 WL 5635113, at *3 (D.N.M. Oct. 31,
2018) (applying the Smith factors in the context of
a request to modify the scheduling order to extend the expert
witness disclosure deadline). The movant's diligence is
the touchstone of the above factors. See Gorsuch, Ltd.,
B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d
1230, 1240 (10th Cir. 2014). Balancing the Smith
factors, the Court finds that Fidelity has established good
cause to amend the Scheduling Order.
respect to the first Smith factor, there is
currently no trial setting. Accordingly, this factor weighs
in Fidelity's favor. Cf. Summers v. Mo. Pac. R.R.
Sys., 132 F.3d 599');">132 F.3d 599, 605 (10th Cir. 1997) (finding that
trial was not imminent when the ...