United States District Court, D. New Mexico
ORDER DENYING EXTENSION OF CLASS CERTIFICATION
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Plaintiff’s Motion to
Extend Deadline for Class Certification and All Subsequent
Deadlines. Doc. 34. Having reviewed the motion and
attendant briefing (doc. 36), and heard
oral argument on the matter (doc. 42), the Court
will DENY Plaintiff’s Motion for the reasons that
filed her complaint in this action, entitled “Original
Class Action Complaint, ” on July 27, 2018. Doc.
1. It was initially characterized as a class action
under Federal Rule of Civil Procedure 23, see doc. 1
at 1, and neither party has at any time denied
Plaintiff’s original intent to move for class
certification under Rule 23. The currently operative First
Amended Class Action Complaint was filed on September 12,
2018. Doc. 3.
November 28, 2018, the parties filed a Joint Status Report
and Provisional Discovery Plan in which they proposed a
motion for class certification deadline of June 1, 2019.
See doc. 18 at 1. This deadline was specifically
discussed at the December 18, 2019 Rule 16 Scheduling
Conference. See doc. 21. As the minutes to that
conference reflect, the “Court expressed its concern
with the lateness of June as the deadline for a motion for
class certification.” Id. The Court’s
concern arose from the reality that the nature of discovery
can change dramatically when a case is certified as a class
action. With such a late certification motion deadline, the
parties would be using five months of discovery
pre-certification and would only have two months left after
the filing of the motion. Indeed, the parties would have even
less time for post-certification discovery if the motion were
opposed given time for briefing and decision. Nonetheless,
both counsel expressed support for the later deadline.
Id. Consequently, the “Court stated that it
would adopt the proposed class certification deadline,
” but explicitly warned “that it would be
unlikely to grant extensions.” Id.; see
also doc. 22 at 1 (“the Joint Status Report, after
consultation with the parties, is adopted as an order of the
and a half months and the June 1 deadline came and went
without any motion by Plaintiff to certify a class.
Plaintiff’s counsel was alerted to the missed deadline
a month later, on July 1, 2019, during a teleconference with
counsel for Defendants. See doc. 34 at 7–8. On
July 23, 2019, more than three weeks after that alert and
more than fifty days after the deadline, Plaintiff filed the
instant Motion to Extend Deadline for Class Certification and
All Subsequent Deadlines. Id. Plaintiff requested
that the deadline for the motion for certification be
extended until 14 days after the order deciding the Motion
and further that the deadline for the close of discovery be
moved back such that it would be “in the same position
… relative to the June 1, 2019, deadline.”
Id. at 2. Even assuming an instantaneous ruling when
the motion was fully briefed after an ordinary briefing
period under the local rules, Plaintiff’s request would
have led to a certification motion deadline of September 3,
2019 and moving the close of discovery back to November 3,
2019. The excuse for missing the deadline was a
“calendaring error in Plaintiff’s counsel’s
office.” Id. at 2. On this basis, Plaintiff
argued that she had satisfied the applicable standards for
extension under both Rule 6 and Rule 16. See id. at
8–21. In addition, Plaintiff’s counsel described
ongoing discussions following a late-May 2019 conference
between counsel regarding a proposed stipulation which could
have impacted the planned class certification motion. See
id. at 6.
filed a response in opposition on July 26, 2019, arguing that
Plaintiff had satisfied neither Rule 6 or Rule 16 and citing
examples of Plaintiff’s “persistent, careless
inattention to court-ordered deadlines.” See doc.
36 at 4. In particular, Defendants made reference to
Plaintiff’s “woefully deficient” written
discovery responses. Id. at 4. For example, on May
20, 2019, Defendants had filed a motion to compel
“meaningful and certified responses” to their
interrogatories and requests for production. Doc. 24
at 3. Although Plaintiff requested an extension to respond,
see doc. 29, which was granted, see doc.
30, Plaintiff failed to file any response. Therefore,
the Court granted Defendants’ Motion to Compel
Discovery and ordered Plaintiff to provide meaningful and
certified responses to Defendants’ written discovery
requests no later than July 16, 2019. See doc. 31.
In their response to the present Motion to Extend, however,
Defendants assert that Plaintiff disobeyed the Court’s
Order by providing uncertified interrogatory responses.
See doc. 36 at 5. In addition, Defendants allege
that Plaintiff’s counsel have been unable to reach
Plaintiff, who refused to appear for deposition. See
id. Defendants urge the Court to deny any extension of
deadlines on Plaintiff’s behalf.
elected not to file a reply in support of her Motion to
Extend. See doc. 40 at 1 n.1. However,
Defendants’ Motion to Dismiss (doc. 33) and
the related briefing (docs. 37, 38,
39, 41) shed some additional light on the
factual circumstances to which Defendants allude. Defendants
filed a Motion to Dismiss the Complaint and for Sanctions on
July 23, 2019, immediately prior to Plaintiff’s filing
her Motion to Extend. See doc. 33. In their motion,
Defendants requested dismissal of the complaint “for
failure to cooperate in discovery and for violating this
Court’s July 2, 2019 Order compelling discovery.”
Id. at 1. They proceeded to outline many of the
facts contained in their response to the Motion to Extend,
including Plaintiff’s inadequate discovery responses,
failure to comply with the order compelling discovery, and
refusal to appear for her deposition. See id. at
more accurately, Plaintiff’s counsel-responded to
Defendants’ Motion to Dismiss on August 6, 2019.
Doc. 37. Plaintiff’s counsel acknowledged for
the first time that Plaintiff Candelaria “no longer
wished to be the lead plaintiff in this case, ”
id. at 2, a circumstance which was by no means made
apparent in the Motion to Extend, see generally doc.
34. Plaintiff’s counsel then indicated
their intent to file a Motion to Substitute as Lead Plaintiff
by Friday, August 9, 2019. See doc. 37 at 2. As of
the date of this Order (almost fifty days later), no such
motion has been filed. Plaintiff’s counsel provided
just under one page of legal argument in opposition to
Defendants’ motion, stating: “Plaintiff
Candelaria does not oppose the dismissal of her individual
claims.” Id. at 5. However, Plaintiff’s
counsel alleged a duty on the part of the Court to protect
the interests of absent class members and urged the Court to
grant the supposedly forthcoming Motion to Substitute.
Plaintiff’s request, see doc. 34 at 21, the
Court held a telephonic motion hearing on Plaintiff’s
Motion to Extend on August 22, 2019. See doc. 42.
Plaintiff’s counsel acknowledged that Ms. Candelaria,
the named Plaintiff, no longer wished to participate in the
litigation. See id. at 2. In response to the
allegations of misconduct raised in Defendants’
response, Plaintiff’s counsel was unable to dispute
that Plaintiff’s discovery requests were not certified.
See id. The Court considers this failure a
concession of the point.
seeks to extend the relevant deadlines under both Rule 6,
see doc. 34 at 8, and Rule 16, see doc. 34
at 18. The deadline of June 1, 2019 for Plaintiff to file a
motion for class certification was contained in the
Court’s Order Setting Pretrial Deadlines and Briefing
Schedule, see doc. 22 at 1, as were the
“subsequent [discovery] deadlines” that Plaintiff
now seeks to extend, see generally id. In requesting
extension, therefore, Plaintiff must indeed satisfy the
standard of Rule 16, which “specifically governs
amendments to scheduling orders.” Zisumbo v. Ogden
Reg’l Med. Ctr., 801 F.3d 1185, 1195 (10th Cir.
2015). It is less clear whether Plaintiff must also satisfy
the standard of Rule 6, which deals with extensions of time
generally. However, as explained below, the Court analyzes
both and finds that Plaintiff fails to satisfy either one.
Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank
Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014), the
Tenth Circuit addressed the analogous situation in which a
plaintiff moves to amend his complaint after the scheduling
order deadline for such a motion. Despite the existence of a
specific procedural rule governing amendment, see
Fed. R. Civ. P. 15(a), the Tenth Circuit held that parties
moving to amend after the deadline in the scheduling order
must satisfy both the Rule 15 requirements and Rule
16’s good cause standard. See Gorsuch, 771
F.3d at 1240 (“After a scheduling order deadline, a
party seeking leave to amend must demonstrate (1) good cause
for seeking modification under Fed R. Civ. P. 16(b)(4)
and (2) satisfaction of the Rule 15(a)
standard.”) (emphasis added). Therefore, the Court
concludes that the Rule 16 “good cause” standard
must be satisfied whenever parties seek to amend a deadline
contained in a scheduling order.
a party must additionally satisfy Rule 6 in seeking
extension of a scheduled deadline is unclear. Although the
Tenth Circuit’s ruling in Gorsuch requires
plaintiffs moving for amendment after the deadline to satisfy
both Rule 16 and Rule 15, it does not require them to satisfy
Rule 6. See also Birch v. Polaris Indus., 812 F.3d
1238, 1249 n.2 (10th Cir. 2015) (noting that the lower
court’s analysis, which included a consideration of
“excusable neglect” under Rule 6,
“differs-albeit marginally-from the procedure we
outlined in Gorsuch”). However, the Tenth
Circuit has not addressed the particular context of motions
to extend class certification or other discovery deadlines
after the date set in the scheduling order has passed. To
account for the possibility that satisfaction of Rule 6 is
required in addition to satisfaction of Rule 16, the Court
will address both rules.
Rule of Civil Procedure 16(b) provides that a “schedule
may be modified only for good cause and with the
judge’s consent.” Fed.R.Civ.P. 16(b)(4).
is scant case law from the Tenth Circuit applying the
“good cause” standard under Rule 16(b)(4), and
most of it relates specifically to untimely motions to amend
the complaint. The Tenth Circuit has, however, provided a
concise definition of good cause under Rule 16(b)(4): it
“requires the moving party to show that it has been
diligent in attempting to meet the deadlines, which means it
must provide an adequate explanation for any delay.”
Strope v. Collins, 315 Fed.Appx. 57, 61 (10th Cir.
2009) (unpublished) (citing Minter v. Prime Equip.
Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)). See
also Gorsuch, 771 F.3d at 1240 (“In practice, this
standard requires the movant to show the ‘scheduling
deadlines cannot be met despite [the movant’s] diligent
efforts.’”) (quoting Pumpco, Inc. v. Schenker
Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001));
Husky Ventures, Inc. v. B55 Invs., Ltd., 911 F.3d
1000, 1020 (10th Cir. 2018) (“good cause obligates the
moving party to provide an adequate explanation for any
delay”) (citations omitted).
definition accords with the weight of authority among other
circuit courts, which have generally agreed that a finding of
good cause under Rule 16(b)(4) depends primarily, or even
solely, on the diligence of the party seeking extension.
See, e.g., Destra v. Demings, 725
Fed.Appx. 855, 859 (11th Cir. 2018) (unpublished) (Rule
16(b)(4) “precludes modification unless the schedule
cannot be met despite the diligence of the party seeking the
extension.”) (quoting Sosa v. Airprint Sys.,
133 F.3d 1417, 1418 (11th Cir. 1998)); Alioto v. Town of
Lisbon, 651 F.3d 715, 720 (7th Cir. 2011) (“In
making a Rule 16(b) good-cause determination, the primary
consideration for district courts is the diligence of the
party seeking amendment.”); Hussain v.
Nicholson, 435 F.3d 359, 367 (D.C. Cir. 2006) (Rogers,
J., concurring) (“the primary consideration in
determining whether the district court abused its discretion
by refusing to reopen discovery is whether [the plaintiff]
was diligent in conducting discovery within the schedule set
by the district court”); Parker v. Columbia
Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)
(“a finding of ‘good cause’ depends on the
diligence of the moving party”); Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)
(“Rule 16(b)’s ‘good cause’ standard
primarily considers the diligence of the party seeking the
amendment”). Some circuits, while applying a
substantially similar diligence analysis, also consider other
factors. See Springboards to Educ., Inc. v. Houston
Indep. Sch. Dist., 912 F.3d 805, 819 (5th Cir. 2019)
(applying four-factor test) (quotation and citation omitted);
Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.
2002) (“Another relevant consideration is possible
prejudice to the party opposing the modification.”).
circuit, the appellate court “afford[s] ‘wide
discretion’ to a district court’s determination
of whether good cause was shown under Rule 16(b)(4).”
Perez v. Denver Fire Dep’t, 724 Fed.Appx. 646,
650 (10th Cir. 2018) (unpublished) (quoting Bylin v.
Billings, 568 F.3d 1224, 1231 (10th Cir. 2009)).