Opinion
Aaron D. Radbil, Greenwald Davidson & Radbil, PLLC, Austin, TX, Shireen Hormozdi, Hormozdi Law Firm, LLC, Norcross, GA, for Plaintiff.
Brandon Allen Carnes, Rock Fusco & Connelly, LLC, Chicago, IL, William W. Downs, Downs Law, LLC, Decatur, GA, for Defendant.
ORDER
JOHN K. LARKINS III, United States Magistrate Judge
This matter is presently before the Court on Defendant’s motion to extend the discovery period, [Doc. 24], and oral motion to conduct an out-of-time deposition of Plaintiff. Defendant’s motions are DENIED.
I. BACKGROUND
This case was filed on July 10, 2017. [Doc. 1.] Based upon the Court’s October 17, 2017 scheduling order, discovery was set to close on May 28, 2018. [See Doc. 14.] Since issuing its scheduling order, the Court has been forced to repeatedly intervene as a result of Defendant’s failure to engage in good faith discovery efforts. On January 24, 2018, a hearing was held regarding Defendant’s outstanding and overdue discovery responses and objections. [Docs. 15, 16.] At that time, the Court denied Plaintiff’s request that Defendant’s objections be deemed waived in their entirety, but was compelled to affirmatively order Defendant to provide its objections and responses, along with responsive documents, by a date certain. [Id. ] On May 11, 2018, the Court was again required to hold a teleconference after Defendant had not made available a corporate witness for deposition and still had not produced all documents response to Plaintiff’s discovery requests. [Docs. 22, 23.] Following the May 11, 2018 teleconference, the Court ordered Defendant to complete its production and allowed Plaintiff additional time to conduct its corporate witness deposition pursuant to Federal Rule of Civil Procedure 30(b)(6). [Id. ] The Court made clear that the general discovery deadline in this case had not changed. [Doc. 23.]
On May 24, 2018, on the eve of the close of discovery, Defendant served interrogatories and requests for production, noticed Plaintiff’s deposition, and moved to extend the discovery period. [See Doc. 24 at 1-3.] Based upon the motion’s timing and Plaintiff’s concern that her deposition had been noticed for May 29, 2018, five days after the notice was served and outside the discovery period, the Court held a teleconference on May 25, 2018, regarding both the motion and the parties’ dispute regarding the propriety of the deposition notice. At the hearing, Defendant explained that it had not utilized the discovery period to conduct discovery in an effort to avoid incurring additional attorney fees and in the hope of working toward a negotiated settlement of Plaintiff’s claims, bearing in mind the fee-shifting provision of the FDCPA. [Id. ] Although Defendant argues that its current request for an extension of discovery was made in good faith, not for a dilatory purpose, and would not prejudice Plaintiff, it has not, in its motion or during the teleconference, provided any additional justification for the delay in seeking discovery from Plaintiff or requesting an extension of the discovery period.
II. ANALYSIS
Rule 16 of the Federal Rules of Civil Procedure requires that the Court’s scheduling order contain, among other things, a limit on the time for the parties to complete discovery and file motions. See Fed.R.Civ.P. 16(b)(3)(A). After a scheduling order has been issued, Rule 16(b)(4) provides that it "may be modified only for good cause and with the judge’s consent." "To establish good cause, the party seeking the extension must establish that the schedule could not be met despite the party’s diligence." Ashmore v. Sec’y, Dep’t of Transp., 503 Fed.Appx. 683, 685 (11th Cir. 2013); see also Romero v. Drummond Co., 552 F.3d 1303, 1319 (11th Cir. 2008) ("To establish good cause, the party seeking the extension must have been diligent."). "[T]he moving party cannot establish the diligence necessary to show good cause ... if the party failed to seek the needed information before the deadline." Williams v. Blue Cross & Blue Shield of Fla., Inc., No. 3:09CV225/MCR/MD, 2010 WL 3419720, at *1 (N.D. Fla. Aug. 26, 2010) (citing S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235 (11th Cir. 2009) ); see also Charles A. Wright et al., 6A Federal Practice and Procedure § 1522.1, at 231 (a party seeking to reopen discovery must show why court’s deadlines could not "reasonably" have been met "despite [its] diligence"). Additionally, Local Rule 26.1B explains that motions for extension of time for completing discovery "will be granted only in exceptional cases where the circumstances on which the request is based did not exist or the attorney or attorneys could not have anticipated that such circumstances would arise at the time the Joint Preliminary Report and Discovery Plan was filed." LR 26.1B, NDGa.
In this case, Defendant has not presented the Court with good cause for modifying the scheduling order or shown exceptional circumstances to justify extending the discovery period. Defendant simply miscalculated in assuming the case would settle, and failed to diligently pursue discovery before the discovery period was set to close. There is no suggestion that settlement was reached in principal, and neither party requested that the case be stayed in order to pursue any form of negotiated resolution. While the Court is not unmindful that settlement negotiations, if successful, will obviate the need to complete discovery, the pursuit of settlement, by itself, is not good cause to justify the extension of deadlines in a scheduling order because it does not demonstrate that those deadlines cannot be met despite the diligence of the parties. Because it has proffered no other explanation for its lack of diligence, Defendant has failed to show good cause for modifying the scheduling order to extend discovery.
See, e.g., Brooks v. Eclipse Recreational Vehicles, Inc., No. CV-08-1731-PHX-LOA, 2009 WL 1616017, at *2 (D. Ariz. June 9, 2009) ("Continuances of [ ] deadlines [set pursuant to Rule 16] may be granted only upon a showing of good cause and by leave of the assigned trial judge. Settlement negotiations, however, do not constitute good cause.") (citations omitted); Rivera v. Cty. of Willacy, No. B-06-189, 2007 WL 1655303, at *1 (S.D. Tex. June 6, 2007) ("[A]lthough the Court finds the parties’ settlement efforts commendable and encourages the continuation of their negotiations, the mere possibility of settlement does not meet the standard of good cause for amending the Court’s scheduling order. Furthermore, the parties provide no explanation as to why their settlement discussions will prevent them from meeting the deadlines established in the scheduling order."); Arnold v. Krause, 232 F.R.D. 58, 65-66 (W.D.N.Y. 2004) (An "unfounded belief that settlement was likely affords no basis for a finding of good cause. The possibility of settlement is ever present in virtually all civil cases. Only in the rarest of cases will such a possibility suffice to demonstrate good cause, particularly where, as here, the deadlines [sought to be extended] were established after consultation with the parties.") (citing Lory v. Gen. Elec. Co., 179 F.R.D. 86, 88 (N.D.N.Y. 1998) ).
At the teleconference, Defendant also made an oral motion to take Plaintiff’s deposition as noticed on May 29, 2018— that is, after the expiration of the discovery period. As with its written motion, Defendant has not shown good cause to for conducting Plaintiff’s deposition out of time, and Defendant’s oral motion is therefore without merit. See Simpson v. State of Ala. Dep’t of Human Res., 501 Fed.Appx. 951, 956 (11th Cir. 2012) (affirming denial of motion for leave to depose individuals made five days before the discovery period was set to expire when no good cause was shown for extending discovery deadline).
III. CONCLUSION
For the reasons explained in detail above, Defendant has not met its burden to amend the scheduling order to extend discovery, either generally or for the specific purpose of taking Plaintiff’s deposition. As a result, Defendant’s motion for extension of time to complete fact discovery and oral motion to conduct an out-of-time deposition of Plaintiff are DENIED.
IT IS SO ORDERED this 29th day of May, 2018.