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Environmental Dimensions, Inc. v. Energysolutions Government Group, Inc.

United States District Court, D. New Mexico

December 4, 2019

ENVIRONMENTAL DIMENSIONS, INC., A New Mexico Corporation, Plaintiff,
v.
ENERGYSOLUTIONS GOVERNMENT GROUP, INC. n/k/a Atkins Energy Government Group, Inc., a foreign for profit corporation, Defendant.

          MEMORANDUM OPINION AND ORDER

          JERRY H. RITTER U.S. MAGISTRATE JUDGE.

         This matter comes before the Court on Environmental Dimensions, Inc.'s (“EDi”) Motion to Compel or in the Alternative Reopen Discovery to Prevent Prejudice [Doc. 145], filed August 21, 2019. At issue in the Motion is whether the Court should compel Defendant Energysolutions Government Group, Inc. (“ESGG”) to produce a document referenced in a confidential settlement agreement between ESGG and Los Alamos National Security (“LANS”) now that the Court has denied ESGG's Motion to Quash EDi's subpoenas to the United States Department of Energy and National Nuclear Security Administration (“NNSA”) seeking the same settlement agreement. Also at issue is whether the Court should reopen discovery now that EDi has secured the settlement agreement. However, before considering these issues, the Court must decide whether EDi's Motion, which was filed outside of the deadlines imposed by the Scheduling Order entered in this case and this Court's Local Rules, must be denied as a matter of procedure. Having considered the parties' arguments and all pertinent authority in light of the docket in this case, the Court concludes that EDi's Motion must be denied for failure to establish good cause for its late filing.

         I. BACKGROUND

         EDi's Complaint in this matter asserts claims for breach of contract, civil fraud and unfair trade practices against ESGG.[1] [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].

         As was mentioned in this Court's last discovery-related order, discovery in this case has been fraught with discord, and the Court has now issued eight substantive Orders addressing the parties' discovery disputes, not counting Orders addressing motions for attorney fees associated with such disputes. [See Docs. 50, 73, 74, 76, 123, 124, 139, 159]. For its part, EDi's discovery motions sought the confidential settlement agreement between ESGG and LANS that, it contends, proves that ESGG's alleged grossly negligent conduct caused EDi to lose work under the prime contract. EDi's attempts to secure the settlement agreement were largely futile. 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 DOE and NNSA for the documents on June 10, 2018. [See generally Doc. 138]. While ESGG moved to quash the subpoenas, the Court ultimately denied the motion to quash, finding that the settlement agreement was relevant to EDi's claims. [Id., p. 8]. After the Court denied ESGG's motion to quash, it produced the settlement agreement subject to the protective order entered in this case before DOE and NNSA had an opportunity to do so. [See generally Doc. 159]. The next day, DOE and NNSA disclosed the agreement, subject to the same designation under the protective order. [Doc. 141-2]. ESGG moved this Court to enforce the confidentiality designation under the protective order, relief that this Court granted on November 13, 2019. [See Doc. 159].

         EDi's present Motion accuses ESGG of a “pattern and practice of non-disclosure and bad faith” and asks the Court to “reopen discovery and order ESGG to fully answer and respond to discovery requests and produce all documents.” [Doc. 145, p. 2]. EDi's position is that, because the Court determined that the settlement agreement was relevant to EDi's claims when denying ESGG's motion to quash, ESGG must supplement its discovery responses and produce a privilege log for responses it served on May 15, 2017. [Id.]. EDi concludes by requesting sanctions against ESGG and its counsel in the form of “the fees and costs of the year of effort Plaintiffs' counsel expended for his client in finding and obtaining the settlement agreement[.]” [Id., pp. 8-10].

         ESGG responds that EDi's Motion is over two years too late under this Court's Local Rules, which require a party served with objections to discovery to file a motion to compel within twenty-one (21) days of receiving the objection. [See Doc. 146, p. 4-8 (citing D.N.M.LR-Civ. 26.6)]. Alternatively, ESGG argues that that EDi's Motion should be denied because it seeks to re-litigate a previous motion to extend discovery filed by EDi, which this Court denied. [See id., pp. 11-12]. ESGG also argues that the discovery EDi seeks is futile - pointing out that EDi did not raise the need for additional discovery when responding to ESGG's motions for summary judgment, two of which remain pending as of the entry of this Memorandum Opinion and Order. [Doc. 146, p. 17; see Docs. 101, 103]. Finally, ESGG argues against sanctions directed at it or its counsel, contending it has all times acted in accordance with the Federal Rules of Civil Procedure and this Court's Local Rules. [Doc. 146, p. 20-22].

         In its reply brief, EDi argues that good cause exists to reopen discovery. [Doc. 148, pp. 4-5]. EDi blames ESGG for causing it prejudice by using “motion practice to delay production of subpoenaed documents and the opportunity to depose persons relating (sic) the documents that have been produced until the discovery deadline passed[.]” [Id., p. 4]. EDi then argues that “despite [its] efforts, due to the prolonged motion practice, the scheduling deadlines could not be met[.]” Id. Finally, EDi posits that ESGG “has and continues to hide information that will substantially affect the outcome of this case[, ]” warranting sanctions against both it and its counsel. [Id., p. 8].

         Before turning to its analysis, the Court pauses to note that the initial Order Setting Pretrial Deadlines entered in this case was filed November 29, 2016. [Doc. 22]. Under that Order, the initial discovery deadline was February 22, 2018. [Id., p. 1]. As the initial deadline was approaching, the parties stipulated to an extension of the discovery deadlines, which was granted by the Court on February 14, 2018. [See Doc. 48]. Under the Amended Scheduling Order, fact discovery was due September 20, 2018. [Id.]. Over a month after this deadline passed, EDi filed an opposed motion for extension of time to complete certain discovery on November 12, 2018. [See Doc. 96]. This Court denied EDi's motion on June 6, 2019, finding that EDi failed to demonstrate either excusable neglect for failing to move to extend the discovery deadlines before they expired, or good cause to modify the Amended Scheduling Order and reopen discovery. [See generally Doc. 139]. EDi did not move the Court to reconsider its ruling and did not seek review from presiding Chief District Judge Johnson, as permitted by 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a).

         II. LEGAL STANDARDS

         The Court's analysis of the present issues depends on whether EDi has shown “good cause” to file its Motion outside of the time permitted by the Court's Local Rules and by the Federal Rules of Civil Procedure. Under Local Rule 26.6: “[a] party served with objections to: an interrogatory; request for production or inspection; or request for admission must proceed under D.N.M.LR-Civ. 37.1 within twenty-one (21) days of service of an objection … Failure to proceed within this time period constitutes acceptance of the objection. For good cause, the Court may, sua sponte or on motion by a party, change the twenty-one (21) day period.” D.N.M.LR-Civ. 26.6. Likewise, under D.N.M.LR-Civ. 16.1, “[m]odification of deadlines in the Court's scheduling orders and trial notices, whether or not opposed, requires a showing of good cause and Court approval.” The same is true under Rule 16 of the Federal Rules of Civil Procedure, which states that “[a] schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4).

         “In practice, [good cause] requires the movant to show the scheduling deadlines cannot be met despite the movant's diligent efforts.” Tesone v. Empire Mktg. Strategies___, F.3d___, 2019 WL 5850395, at *4 (10th Cir. Nov. 8, 2019) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)). Trial Courts have “considerable discretion” in determining what kind of showing satisfies the good cause standard. Id. (quoting 3 James Wm. Moore, Moore's Federal Practice - Civil § 16.14[1][b] (3d ed. 2019)). Factors that the Court should consider include the diligence of the lawyer who seeks the change, whether the need for additional time was foreseeable, whether refusing to grant the extension would create a substantial risk of unfairness to the movant, and the possible prejudice to the opposing party. Id. at *4-5 (citations omitted). However, “[c]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Id. (citation omitted). In other words, the “[m]ere failure on the part of counsel to proceed promptly with the normal processes of discovery and trial preparation … should not be considered good cause.” Id. At *5 (quoted authority omitted). Thus, “the factor on which courts are most likely to focus is the relative diligence of the lawyer who seeks the change.” Id. at *4 (cited authority and internal alterations omitted).

         Assuming that EDi has shown good cause to file its Motion as required by Local Rules 26.6 and 16.1 and Federal Rule 16, the Court must still determine whether it has established good cause to reopen discovery and excusable neglect for failing to move to reopen discovery before the deadline expired. Under 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 ...


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