United States District Court, D. Arizona
ORDER
Dominic W. Lanza, United States District Judge
Pending
before the Court is Defendant Spring Excellence Surgical
Hospital LLC's (“SESH”) motion for an
extension of time to complete certain discovery (Doc. 193),
which Plaintiff Advanced Reimbursement Solutions LLC
(“ARS”) opposes (Doc. 195). As explained below,
the motion will be denied.
BACKGROUND
This
case was filed in May 2017. (Doc. 1.) The original scheduling
order established a discovery cutoff date of June 15, 2018,
and a dispositive motion deadline of July 16, 2018. (Doc.
58.) At SESH's request, the Court later extended these
deadlines by two months, moving the discovery deadline to
August 15, 2018, and dispositive motion deadline to September
17, 2018. (Doc. 91.)
In June
2018, ARS filed a motion for partial summary judgment. (Doc.
97.) In response, SESH filed a motion under Rule 56(d)
seeking leave to conduct six depositions before responding to
the motion. (Doc. 121.) The Court granted this request,
giving SESH until September 15, 2018, to complete the
specified depositions and 14 days from completion of the
depositions to file its response to ARS's partial summary
judgment motion. (Doc. 135.)
On
August 22, 2018-about three weeks before the September 15,
2018 discovery deadline was set to expire-the Court issued an
order staying the case because one of the parties was
involved in a bankruptcy proceeding. (Doc. 165.) However, on
December 7, 2018, the Court lifted the stay because the
individual involved in the bankruptcy proceeding was no
longer a party in this case. (Doc. 178 at 2.) The Court also
informed the parties that it would “not set a deadline
for SESH to file its response to the pending summary judgment
motion until after hearing from the parties, at the Rule 16
conference, concerning whether additional discovery and
depositions are needed for SESH to prepare its
response.” (Id. at 3.)
Before
the Rule 16 case management conference, the parties filed a
joint case management report. (Doc. 187.) In it, ARS argued
that SESH should have until March 29, 2019, to complete the
six depositions, while SESH argued that it should have until
September 30, 2019, to complete the six depositions.
(Id. at 7-9.)
On
January 23, 2019, the Court held a case management hearing.
(Doc. 188.) During this hearing, the Court noted that the
original discovery deadlines had already expired and that the
case was already more than a year-and-a-half old. Thus, the
Court ruled that SESH would need to complete the six
depositions by March 29, 2019, and file its response to the
partial summary judgment motion by April 12, 2019. (Doc. 189
at 2 [“[T]he six depositions . . . shall be completed
earlier than the otherwise-applicable fact discovery deadline
of April 26, 2019-those six depositions must be completed by
March 29, 2019.”].) The Court further advised SESH
during the hearing that, to the extent it was considering a
change in counsel, the Court would not view such a change as
providing good cause to alter the new deadlines.
DISCUSSION
In its
motion, SESH requests a one-month extension of the March 29,
2019 deadline for completing the depositions of non-parties
Joanna Davis and Devorshia Russell. (Doc. 193.) SESH asserts
that an extension is warranted because (1) the two witnesses
are only available to be deposed on one day (March 7, 2019)
before the deadline expires, and each is only available for
three hours on that day, and (2) its new Arizona counsel
“lacks a complete file from prior counsel” and is
thus unable to provide assistance to the local Texas counsel
who will be conducting the depositions. (Id.)
ARS
opposes the extension request. (Doc. 195.) ARS argues the
request should be denied because (1) SESH dragged its feet
when attempting to schedule the depositions and hasn't
taken adequate steps to secure the witnesses' attendance,
(2) ARS's previous concerns related to the deponents'
time constraints have diminished, and (3) SESH's local
counsel in Texas has been involved in this case since at
least August 2018 and is well equipped to handle the
depositions, and the Court previously warned SESH that a
change in counsel would not justify a deadline extension.
(Id.)
The
Court agrees with ARS's arguments and will deny
SESH's motion. Under Rule 16(b)(4) of the Federal Rules
of Civil Procedure, a scheduling order “may be modified
only for good cause and with the judge's consent.”
Rule 16's good-cause standard “primarily considers
the diligence of the party seeking the amendment. . . . [T]he
focus of the inquiry is upon the moving party's reasons
for seeking modification. If that party was not diligent, the
inquiry should end.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).
SESH
isn't entitled to relief under this standard because it
hasn't established that it acted with diligence when
attempting to schedule the depositions. To the contrary, the
exhibits attached to ARS's opposition suggest that SESH
has displayed a lack of diligence. Soon after the Court
issued its revised scheduling order, ARS began prodding SESH
to lock down a date for the depositions. (Doc. 195-1 at 4-5
[February 7, 2019 email from ARS's counsel seeking to
“discuss . . . scheduling of the depositions”].)
A week and a half later, SESH announced that Davis and
Russell were available for depositions on March 7 and 8,
2019, respectively. (Doc. 195-1 at 3 [February 18, 2019 8:01
am email from SESH's counsel].) A few days later, ARS
sought confirmation of “the times that the depositions
will begin on March 7 and March 8.” (Doc. 195-1 at 2.)
In response, SESH stated for the first time that the
depositions were actually going to take place on the same day
and that each witness was only available for three hours:
“We have set them both for the 7th, with Russell
starting at 8:30 and Davis going immediately after. Notably,
I have been informed that Russell needs to leave by noon and
Davis needs to be done by 3:00 pm . . . .”
(Id.) And in a subsequent email exchange, SESH
stated that it couldn't guarantee that ARS's counsel
would have any time to ask follow-up questions during the
three-hour deposition blocks. (Doc. 195-1 at 8-9 [“I
cannot assure that we will have enough time to complete our
questioning at this point much less have time for
yours.”].)
The
Court recognizes that it is sometimes difficult to identify a
convenient date for deposing an out-of-state non-party
witness. Nevertheless, SESH had plenty of time to do so
here-the scheduling order afforded SESH 65 days to complete
the depositions. Furthermore, the Court made it abundantly
clear, during the scheduling conference, that the March 29,
2019 deposition deadline was a firm deadline. Thus, although
Davis and Russell may be making things difficult on SESH (it
strains credulity to believe that each witness was only
available for a single three-hour block of time between
January 2019 and March 2019), SESH could have avoided any
timing issues by taking prompt, formal steps to subpoena
them-thereby subjecting ...