Opinion
Marco Cercone, Patrick D.R. Leavy, Rupp, Baase, Pfalzgraf & Cunningham, LLC, Buffalo, NY, for Plaintiff.
Maeve Eileen Huggins, Robert Emmet Quinn, City of Buffalo Law Department, Buffalo, NY, for Defendants.
DECISION AND ORDER
JEREMIAH J. MCCARTHY, United States Magistrate Judge
Following a scheduling conference with the parties on January 23, 2018, I issued a Case Management Order ("CMO") confirming the deadlines which the parties had agreed upon for completion of various pretrial proceedings [11] ]. The CMO stated in bold type that "[n]o extension of the above deadlines will be granted except upon written application, filed prior to the deadline, showing good cause for the extension. Absent truly exceptional circumstances, any application for an extension shall be made at least one week prior to the deadline sought to be extended". Id., p. 3 (emphasis added).
Bracketed references are to CM/ECF docket entries. Unless otherwise indicated, page references are to numbers reflected on the documents themselves rather than to the CM/ECF pagination.
Disregarding that admonition, on October 31, 2018 (the deadline for completion of fact discovery under the CMO ( [11], ¶ 7) ), plaintiff’s counsel e-mailed me a letter, which I deem to be a motion [15], seeking a 90-day extension of the CMO’s discovery deadlines. Reluctantly, for the following reasons that motion is denied.
DISCUSSION
I am no fan of CMOs. I trust counsel to progress their cases as they see fit, resorting if necessary to the remedies under Fed.R.Civ.P. ("Rule") 37 to move the case along. But I do not make the Rules. Rule 16(b)(1) states that the court "must issue a scheduling order", and "federal courts have no more discretion to disregard [a] Rule’s mandate than they do to disregard constitutional or statutory provisions". Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988).
Nor am I free to disregard Rule 16(b)(4), which states that "[a] schedule may be modified only for good cause and with the judge’s consent" (emphasis added). My CMO reminded the parties of that "a finding of ‘good cause’ depends on the diligence of the moving party". [11], p. 3 (citing Parker v. Columbia Pictures Industries, 204 F.3d 326, 340 (2d Cir. 2000) ). "Good cause exists where the moving party is unable to comply with a required deadline despite the exercise of due diligence." George v. City of Buffalo, 789 F.Supp.2d 417, 425 (W.D.N.Y. 2011); Parker, 204 F.3d at 340.
In seeking an extension, counsel states that "[d]iscovery is not yet complete as opposing counsel is currently on medical leave until late November. In addition, I recently lost an associate that was assisting me with this matter. To date, the parties have exchanged initial disclosures pursuant to Rule 26 and participated in a mediation of this matter .... The next mediation session is scheduled for December 13, 2018." [15], p. 1.
The fact that counsel "waited until the deadline to seek an extension certainly does not aid his cause". Shemendera v. First Niagara Bank N.A., 288 F.R.D. 251, 253, n. 3 (W.D.N.Y. 2012). However, even if his request had been timely, counsel fails to demonstrate why he has been "unable to comply with a required deadline despite the exercise of due diligence". While discovery could have commenced once the CMO issued on January 23, 2018, the only completed discovery which counsel mentions is the exchange of initial disclosures pursuant to Rule 26, which, according to the CMO, was to be done by February 6, 2018 ( [11], ¶ 3). While counsel argues that opposing counsel has been on medical leave, he does not state when that leave began or explain why defendant’s co-counsel was unavailable to participate in discovery. Nor am I persuaded by counsel’s statement that he "recently lost an associate", as he does not state what discovery had been completed by that time, or when the associate left. Moreover, his law firm has several capable attorneys who could step into the breach.
Counsel also points to the parties’ participation in mediation. However, both the CMO and this court’s Alternative Dispute Resolution ("ADR") Plan make clear that mediation does not furnish good cause for an extension of CMO deadlines. See CMO [11], ¶ 12 ("the continuation of mediation sessions shall not delay or defer other dates set forth in this Case Management Order"); ADR Plan, § 4.1(c) ("[t]he referral of a case to ADR does not delay or defer other dates established in the Scheduling Order").
Finally, the motion does not indicate whether defendant consents to the extension. However, absent good cause, defendant’s consent is irrelevant. See Century 21 Real Estate LLC v. Camden Securities, Inc., 2013 WL 12058576, *2 (C.D. Cal. 2013) ("the fact that the plaintiffs allegedly do not oppose the requested extension does nothing to show actual good cause for the extension"); Shemendera, 288 F.R.D. at 253 ("the absence of prejudice to the non-moving party ... does not satisfy the good cause requirement"); 3 Moore’s Federal Practice § 16.14[1][b] (Mattthew Bender 3d ed. 2018) ("The existence or degree of prejudice ... is irrelevant to the moving party’s exercise of diligence and does not show good cause").
CONCLUSION
If it were solely up to me, I would not hesitate to grant the requested extension. However, "[m]y discretion to grant that relief is limited by Rule 16(b)(4), which requires ‘good cause’ for an extension". Shemendera, 288 F.R.D. at 253. Therefore, "parties may not safely assume that scheduling orders will be modified simply upon request". Id.
I have tried elsewhere to spread the word. See "Scheduling Orders: Don’t Roll the Dice", Bar Association of Erie County Bulletin (www.eriebar.org ), October 2017, pp. 11, 13.
Since good cause for an extension of the CMO deadlines has not been shown, plaintiff’s motion [15] is denied, and the remaining CMO deadlines remain in effect. Notwithstanding those deadlines, the parties are free to conduct further discovery at such times and upon such terms as they may agree, but they may not seek the court’s assistance in doing so.
SO ORDERED.