United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
Carrie Singleton moves the Court to extend the discovery
deadline and the deadline for dispositive and non-evidentiary
pretrial motions. Plaintiff requests these extensions to
depose Jay Oliver and Barry Williams. Defendant Entergy
Operations, Inc., opposes plaintiff's
motion.In the alternative, defendant consents to
extensions of the discovery and dispositive motions deadlines
if the Court resets the trial date. Because the Court finds that
plaintiff has not shown good cause to extend the pretrial
deadlines, the Court denies the motion.
a Title VII case, in which plaintiff alleges that defendant
unlawfully terminated and retaliated against her because of
her race. Trial in this matter was originally set for
November 7, 2016. The Court has reset the trial date twice,
and trial is now set for December 4, 2017. The Court has
reset pretrial deadlines four times. In its most recent
scheduling order, the Court extended the discovery deadline
to August 19, 2017, solely to allow plaintiff to depose
Oliver and Williams. The Court noted that plaintiff had failed
to show good cause for any further extension of the discovery
deadline. The Court also extended the deadline for
dispositive and non-evidentiary pretrial motions to September
19, 2017, but made clear that the current trial date would
not be disrupted.
filed this motion to extend pretrial deadlines-her fifth such
motion-on August 18, the day before the discovery
deadline. Plaintiff again requests additional time
to depose Oliver and Williams. According to plaintiff, the
parties tentatively scheduled these depositions for August
16, but defendant's counsel informed plaintiff shortly
beforehand that Oliver was on vacation until August 20.
Neither deposition went forward. Plaintiff now moves the
Court to extend the discovery deadline to September 15 and
the dispositive and non-evidentiary pretrial motions deadline
to October 6.
opposing plaintiff's motion, defendant contends that
plaintiff is at fault for delaying discovery. For example,
defendant states that plaintiff canceled the August 16
depositions without providing any excuse or reason. Defendant
further asserts that plaintiff has failed to show why these
depositions are necessary. According to defendant, plaintiff
intends to question Williams about the lesser discipline he
experienced. Because Williams and plaintiff are of the same
race, however, defendant argues that any differential
treatment does not support plaintiff's racial
discrimination claim. Defendant also states that Oliver, the
union steward, was not involved in the decision to terminate
plaintiff. Although defendant's primary position is that
plaintiff's motion should be denied, defendant
alternatively consents to extending pretrial deadlines if the
trial date is also reset.
Rule of Civil Procedure 16(b) “authorizes the district
court to control and expedite pretrial discovery through a
scheduling order.” Geiserman v. MacDonald, 893
F.2d 787, 790 (5th Cir. 1990). Under Rule 16(b), a scheduling
order “may be modified only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4). “To
show good cause, the party seeking to modify the scheduling
order has the burden of showing ‘that the deadlines
cannot reasonably be met despite the diligence of the party
needing the extension.'” Squyres v. Heico Cos.,
L.L.C., 782 F.3d 224, 237 (5th Cir. 2015) (quoting
Filgueira v. U.S. Bank Nat'l Ass'n, 734 F.3d
420, 422 (5th Cir. 2013) (per curiam)).
Geiserman, the Fifth Circuit described four factors
to determine whether good cause existed for an untimely
designation of expert witnesses: (1) the explanation for the
failure to adhere to the deadline; (2) the importance of the
proposed modification of the scheduling order; (3) the
potential prejudice that could result from allowing the
modification; and (4) the availability of a continuance to
cure that prejudice. 893 F.2d at 791 (citing Bradley v.
United States, 866 F.2d 120, 125 (5th Cir. 1989));
accord Squyres, 782 F.3d at 237. The Fifth Circuit
has cited the Geiserman factors when a party seeks
to extend discovery on the eve of the discovery deadline.
See Squyres, 782 F.3d at 237. Accordingly, the Court
will analyze the four Geiserman factors to determine
whether plaintiff has shown good cause for her request to
extend the discovery deadline and the deadline for
dispositive and non-evidentiary pretrial motions.
regard to the first factor, plaintiff has not provided a
convincing explanation for her failure to comply with the
scheduling order. Plaintiff has already asked for, and
received, four extensions of the discovery deadline.
Plaintiff contends that a further extension is necessary to
allow her to depose Oliver and Williams. But plaintiff has
failed to explain why she could not conduct these depositions
within the Court's existing deadlines. In its previous
scheduling order, the Court gave plaintiffs a month to
conduct two depositions. Plaintiff neither noticed these
depositions nor subpoenaed the witnesses. Thus, the first
Geiserman factor weighs against the extension of the
pretrial deadlines. See Hernandez v. Mario's Auto
Sales, Inc., 617 F.Supp.2d 488, 494 (S.D. Tex. 2009)
(finding that a party's “lack of diligence with
regard to scheduling [a] witness's deposition precludes
it from having the opportunity to depose th[e] witness
outside of the discovery period”).
the second factor, plaintiff does not articulate why either
Oliver's or Williams's testimony is important.
Defendant argues that Oliver's testimony is not important
because Oliver was not involved in plaintiff's
termination, and that Williams's testimony will not help
plaintiff because Williams is not a suitable comparator. As
the party seeking modification of the Court's scheduling
order, plaintiff bears the burden of demonstrating good
cause. See Squyres, 782 F.3d at 237. Given
plaintiff's failure to explain the importance of the
depositions and defendant's arguments against their
importance, the second factor weighs slightly against
extension of the pretrial deadlines. See Complete Prop.
Res., LLC v. City of New Orleans, No. 04-3267, 2006 WL
197006, at *2 (E.D. La. Jan. 25, 2006) (denying leave to file
untimely expert report because “[w]hile plaintiff's
damages may be of importance to its case, plaintiff has not
established that an expert is necessary”).
the third Geiserman factor, the proposed extensions
would prejudice defendant in two ways. First, defendant would
have to expend time and resources on depositions it opposes.
See Hernandez, 617 F.Supp.2d at 497 (“Whenever
additional depositions are conducted, both parties must
expend additional resources and invest time in conducting
them. Thus, prejudice generally results to the party opposing
additional depositions.”). Second, defendant has
already filed a motion for summary judgment without the
benefit of the deposition testimony. See O'Neal v.
Cargill, Inc., No. 15-7183, 2016 WL 7407177, at *2 (E.D.
La. Dec. 22, 2016) (“[G]ranting the motion would be
highly prejudicial to Cargill, which has complied with its
obligations under the court's scheduling order and the
Federal Rules of Civil Procedure and filed a well-supported,
timely motion for summary judgment.”). The proposed
extensions would also prejudice both parties in light of the
approaching trial date. Unless the Court resets the trial
date, the parties would have to prepare for trial while
awaiting the Court's decision on dispositive motions. The
third factor therefore weighs against extension of the
turning to the fourth Geiserman factor, the Court
finds that continuing the pretrial deadlines as well as the
trial itself would cure some, though not all, of the
prejudice described earlier. Resetting the trial date, as
defendant proposes, would mitigate the prejudice of preparing
for trial while awaiting the Court's decision on
dispositive motions. On the other hand, plaintiff's
requested extension of the discovery deadline would require
defendant to expend additional time and resources regardless
of when trial commences. “Moreover, a continuance would
not deter future dilatory behavior, nor serve to enforce . .
. court imposed scheduling ...