Opinion
Civil Action No. 00-N-311
September 25, 2000
Drew Johnroe, Steamboat Springs, CO., Attorney for plaintiff.
J. Matthew Mire, Littleton Co., Attorney for Defendant.
ORDER
This matter is before me on the parties' Joint Motion to Extend Deadlines of Scheduling Order Certification Pursuant to D.C.COLO.L.R. 7.1 (c) (the "Motion"), filed September 19, 2000. The parties seek to modify the Scheduling Order to (1) extend the expert designation deadline from September 15, 2000, to November 14, 2000; (2) extend the rebuttal expert designation deadline from September 30, 2000, to December 1, 2000; and (3) extend the discovery cut-off from October 2, 2000, to December 1, 2000.
A scheduling order "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b). "Good cause means that scheduling deadlines cannot be met despite a party's diligent efforts." Dilmar Oil Co., Inc. v. Federated Mutual Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997), aff'd, 129 F.3d 116 (4th Cir. 1997). "Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).
The parties provide the following bases for their request to modify the Scheduling Order. First, the parties assert that they have been unable to arrange the depositions of the defendants due to the defendants' schedules. The parties do not show that they have diligently attempted to schedule the depositions, however, and that despite their diligent efforts they cannot meet the discovery deadline. In particular, although the plaintiffs have had more than four months since the Scheduling Order was entered to depose the defendants, and although the Motion recites that the plaintiffs have attempted to schedule the defendants' depositions earlier, no motion to compel those depositions was filed. Thus, the parties' failure to schedule the defendants' depositions does not demonstrate good cause.
The parties also assert that a discovery dispute exists regarding production of personnel files, and that the parties "are attempting to resolve these issues." Again, the parties make no showing that they have diligently tried to resolve this dispute. Indeed, no motion to compel production of the withheld documents has been filed. Consequently, the parties' failure to resolve their discovery dispute does not establish good cause.
Finally, the parties assert that they stipulated to, and were granted, a continuance of the settlement conference setting. I fail to see how stipulating to continue a settlement conference is relevant to establish good cause for modification of a scheduling order.
In addition, I note that the parties seek to extend the expert designation deadline, which expired four days before this Motion was filed. When an enlargement of time is sought after the passing of a specified deadline, the movant must show that "the failure to act was the result of excusable neglect." Fed.R.Civ.P. 6(b). Here, the parties do not acknowledge that they requested to extend an expired deadline, nor do they address the excusable neglect standard. For these reasons,
IT IS ORDERED that the parties' Motion is DENIED.