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 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.
Complaint in this matter asserts 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].
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.].
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].
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].
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].
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].
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).
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).
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[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).
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 ...