United States District Court, D. New Mexico
ENVIRONMENTAL DIMENSIONS, INC., A New Mexico Corporation, Plaintiff,
ENERGYSOLUTIONS GOVERNMENT GROUP, INC. n/k/a Atkins Energy Government Group, Inc., a foreign for profit corporation, Defendant.
MEMORANDUM OPINION AND ORDER
H. RITTER, U.S. MAGISTRATE JUDGE.
matter comes before the Court on Environmental Dimensions,
Inc.'s (EDi) Motion to Extend Certain Discovery Deadlines
[Doc. 96');">96');">96');">96], filed November 12, 2018. EnergySolutions
Government Group, Inc. (ESGG) filed a Response [Doc. 107');">107] and
EDi declined to file a Reply. [See Doc. 109]. Having
considered the parties' arguments and all pertinent
authority, the Court denies EDi's
Motion, for the reasons set forth below.
Court issued an Amended Scheduling Order on February 14,
2018, setting the termination date for fact discovery to
September 20, 2018, and the deadline for motions related to
discovery to September 27, 2018. [See Doc. 48]. The
Court further set expert disclosure deadlines (EDi's due
by November 1, 2018, and ESGG's due by December 6, 2018),
and a pretrial motions deadline of January 24, 2019.
[Id.]. Despite these deadlines, EDi waited until
November 12, 2018 to file the present motion, in which it
asks the Court to “extend all discovery deadlines and
related motions for good cause.” [Doc. 96');">96');">96');">96, p. 4].
However, EDi has demonstrated neither excusable neglect for
filing its Motion outside of the pertinent deadlines, nor
good cause to extend the discovery and case management
deadlines in this case. As such, the Court has no choice but
to deny EDi's Motion.
brings claims for breach of contract, civil fraud and unfair
trade practices against ESGG. [see generally Doc.
1-1]. These claims arise from the parties' relationship
as prime and subcontractor to a contract with Los Alamos
National Security (LANS) directed at the management,
treatment and packaging of radioactive waste at Los Alamos
National Laboratory. [See id., p. 4]. Pertinent
here, EDi alleges that ESGG, which was also the prime
contractor to LANS prior to the award of the contract to EDi,
was grossly negligent in its operations and contract work
under a prior contract. [Id., p. 9]. EDi asserts
that ESGG's conduct under the prior contract caused
“LANS to void or reduce the tasks assigned thereunder,
or alter the contract held by PLAINTIFF EDi in a manner that
would seriously damage the work PLAINTIFF EDi anticipated
receiving under the contract[.]” [Id., p. 9].
discovery EDi sought documents related to ESGG's alleged
grossly negligent conduct, with little success. [See
generally, Doc. 96');">96');">96');">96, p. 2');">p. 2]. First, EDi served a subpoena
on a LANS employee, later moving to compel production from
the employee. [See generally Doc. 73]. The Court
denied EDi's motion to compel on June 28, 2018, reasoning
that EDi had subpoenaed the incorrect person who had neither
possession nor control of the documents. [Id.]. EDi
also sought the documents from ESGG directly, later moving to
compel production. [See generally Doc. 76]. However,
because EDi's motion to compel failed to conform to this
Court's local rules and was untimely, it was also denied
on June 28, 2018. [Id.]. Finally, EDi issued
subpoenas to the United States Department of Energy and the
National Nuclear Security Administration for the documents on
June 10, 2018. [See generally Docs. 87-1, 123]. ESGG
moved to quash these subpoenas on September 27, 2018.
[See generally Doc. 87]. Other than its briefing on
ESGG's motion to quash, EDi took no action until it filed
the instant Motion on November 12, 2018.
Motion, EDi asserts that it “has good cause in that it
has been diligent in attempting to meet discovery deadlines
but has been thwarted by Defendant in obtaining documents
necessary in proving its case.” [Doc. 96');">96');">96');">96, p. 1');">p. 1]. EDi
then recites the above factual background, noting that
“Defendant's motion to quash Plaintiff's
subpoenas has not been decided yet by the Court and Defendant
relies upon that motion to both prevent depositions of fact
witnesses and the key documents subpoenaed from their
files[.]” [Id., pp. 2');">p. 2-3]. EDi then sets forth
its interpretation of the relevant standards, asking the
Court to “exercise its discretion and extend all
discovery, expert reports, discovery motions and
Daubert motions.” [Id., p. 3]. EDi
then concludes by arguing that there is no trial setting in
this case and that ESGG will not be prejudiced as it
“has obstructed discovery in this case, which resulted
in Plaintiff attempting to obtain the documents from other
sources.” [Id., p. 4]. EDi further argues that
it “has done everything it could do to obtain discovery
and is now awaiting the decision of the Court to determine
Defendant's motion to quash the subpoenas.”
response, ESGG argues that “EDi's motion asks this
Court to rescue it from its own dilatory conduct.”
[Doc. 107');">107, p. 1');">p. 1]. ESGG points out that “EDi had over
two years to conduct discovery” and filed the instant
motion after the expiration of the pertinent deadlines.
[Id., pp. 1');">p. 1-2]. Moreover, ESGG argues it will be
prejudiced “in terms of time, money, and
strategy.” [Id., p. 2');">p. 2]. Thus, ESGG posits that
EDi has shown “neither good cause nor excusable neglect
for its delay.” [Id., p. 4]. EDi opted against
filing a reply brief.
Rule 6(b)(1)(B) “[w]hen an act may or must be done
within a specified time, the court may, for good cause,
extend the time … on motion made after the time has
expired if the party failed to act because of excusable
neglect.” Fed.R.Civ.P. 6(b)(1)(B). “Excusable
neglect” is a “somewhat ‘elastic
concept' and is not limited strictly to omissions caused
by circumstances beyond the control of the movant.”
Pioneer Inv. Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380, 392 (1993). However,
“inadvertence, ignorance of the rules, or mistakes
concerning the rules do not usually constitute
‘excusable' neglect[.]” Id.
“[T]he determination is at bottom an equitable one,
taking account of all relevant circumstances surrounding the
party's omission.” Id. at 395. Factors to
consider are the danger of prejudice to the nonmovant, 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. Id.
Rule 16(b)(2) a scheduling order “may be modified only
for good cause and with the judge's consent.”
Fed.R.Civ.p. 1');">p. 16(b)(2). “‘[G]ood cause'
requires a greater showing than ‘excusable
neglect.'” In re Kirkland, 86 F.3d 172,
175 (10th Cir. 1996');">96');">96');">96). “[I]nadvertence or negligence
alone do not constitute ‘good cause[, ]'” nor
do mistakes of counsel of ignorance of the rules.
Id. at 176. “The Advisory Committee Notes to
rule 16 explain: ‘[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.” People's Trust Federal Credit Union
v. National Credit Union Administration, 350 F.Supp.3d
1129, 1142 (D.N.M. 2018) (quoting Advisory Committee Notes to
Rule 16). Thus, “[g]ood cause focuses on the diligence
of the party seeking to modify the scheduling order[.]”
Id. (citation omitted). “The plaintiff who
seeks to rely on the good cause provision must show
meticulous efforts to comply with the rule.”
Kirkland, 86 F.3d at 176; see also
Birch v. Polaris Industries, Inc., 812 F.3d 1238, 1247
(10th Cir. 2015). Ultimately, “[w]hether to extend or
reopen discovery is committed to the sound discretion of the
trial court[.]” Smith v. U.S., 834 F.2d 166,
169 (10th Cir. 1987).
Appellate decisions have identified several relevant factors
in reviewing decisions concerning whether discovery should be
reopened, including: 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 relevant evidence.
Id. (citations omitted). “[T]he Smith
factors are dispositive as to how good cause applies in
motions to reopen[.]” Anderson Living Trust v. WPX
Energy Production, LLC, 308 F.R.D. 410, 441 (D.N.M.
2015) (Applying the Smith factors and Rule 16's