United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING BATRA
HOSPITALITY GROUP, INC.'S MOTION TO VACATE AND RESCHEDULE
H. RITTER UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendant/Counterclaimant
Batra Hospitality Group, Inc.'s (Batra) Motion to
Vacate and Reschedule Trial Setting [Doc. 47], filed
June 6, 2019. 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
April 5, 2018, Valverde Energy, Inc. (Valverde) filed its
Complaint for Breach of Contract, Unjust Enrichment,
Violation of the Prompt Payment Act, and Foreclosure of Lien
against Batra in the Eighth Judicial District Court in Taos
County, New Mexico. [Doc. 1, pp. 12-27]. Valverde alleges
that Batra failed to pay invoices totaling $67.310.47 for
plumbing and related work performed at the Don Fernando Hotel
in Taos, New Mexico. [Id., pp. 13-14]. Batra filed
its Answer and Counterclaims on May 10, 2018. [Id.,
pp. 28-40]. Batra alleges that Valverde overcharged for work
performed and that Batra has incurred at least $151, 310.50
in damages to correct work performed or supervised by
Valverde at the hotel. [Id., pp. 33-36].
case was removed to this Court on May 11, 2018.
[Id., pp. 1-5]. Valverde moved to remand on May 31,
2018. [Doc. 10]. On December 18, 2018, the Court denied
Valverde's motion. [Doc. 21]. On February 26, 2019, after
conferring with the parties, the Court issued a Notice of
Civil Bench Trial [Doc. 33], setting trial in this
matter for November 12, 2019. On April 25, 2019, counsel for
Batra filed an Unopposed Motion to Withdraw as
Counsel [Doc. 39], citing a “fundamental
disagreement between the Client and counsel as to the scope
and conduct of the litigation.” [Id.]. The
Court granted counsel's motion to withdraw and on May 28,
2019, new local counsel for Batra entered an appearance.
[Doc. 40; Doc. 42]. On June 7, 2019, Batra filed the instant
Motion to Vacate and Reschedule the Trial Setting.
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). Pursuant to rule 16 of
the Federal Rules of Civil Procedure, a district judge must
issue a scheduling order, and the judge is permitted to set a
trial date as part of the scheduling order. See
Fed.R.Civ.p. 16(b)(3)(B)(v). Scheduling orders “may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.p. 16(b)(4). “[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.” Fed.R.Civ.p. 16(b)(4) advisory
committee's note to 1983 amendment. As the Court has
stated in the past: “Properly construed, good cause
means that scheduling deadlines cannot be met despite a
party's diligent efforts.” Hartnett v. Papa
John's Pizza, Inc., No. 10-CV-1105, 2012 WL
5378287, at *7 (D.N.M. Oct. 10, 2012) (internal quotation
marks and citation omitted).
good cause standard primarily considers the diligence of the
party[.] The party seeking an extension must show that
despite due diligence it could not have reasonably met the
scheduled deadlines. Carelessness is not compatible with a
finding of diligence and offers no reason for a grant of
relief.” Id. (internal quotation marks
omitted). In the context of a motion to vacate a trial
setting, the United States District Court for the District of
Utah found good cause existed vacate the trial setting after
the Court had permitted the plaintiff's counsel to
withdraw. See Kee v. Fifth Third Bank, No.
06-CV-00602, 2008 WL 183384, at *1 (Jan. 17, 2008 D. Utah)
(“In light of the court's decision to permit
[counsel] to withdraw ... the court has determined that good
cause exists for amending the existing scheduling
present case, Batra is requesting that the trial be
rescheduled because its new counsel has a previously
scheduled trial in another matter set to commence November
18, 2019-one week after the trial setting in this matter.
[Doc. 47, p. 1]. Batra represents that its counsel is
available and can be ready for trial by December 9, 2019, and
that its counsel has continuing availability in December
2019, as well as in January and February 2020. [Id.,
pp. 1-2]. Batra further represents that it has been diligent
in working with Valverde to complete remaining discovery,
including timely completion of fact witness depositions in
July 2019. [Id., p. 2]. Notably Valverde does not
contend otherwise. [See generally, Doc. 48]. Nor
does Valverde allude to any prejudice that would result from
postponing the trial as Batra requests. [Id.].
Court recognizes that it permitted the withdrawal of
Batra's previous counsel and based on Batra's
representations, the Court is satisfied that Batra's new
counsel is working diligently to get up to speed and to
prepare this case for trial. Accordingly, the Court finds
that Batra has met its burden to demonstrate that good cause
exists for vacating the November 12, 2019 trial setting.
Fed.R.Civ.p. 16(b)(4); Kee, No. 06-CV-00602, 2008 WL
183384, at *1.
forgoing reasons, Batra's Motion to Vacate and
Reschedule the Trial Setting [Doc. 33] is GRANTED. The
trial set for November 12, 2019 is hereby VACATED. The Court
will set a ...