Thursday, June 26, 2014

Scheduling Orders

Many times a court will issue a scheduling order in a case. Normally, I like them. It fits in with my OCD to some degree. Sometimes things come up which necessitate modifying the scheduling order due to uncooperative opposing counsel or emergencies of some kind. What is the standard to modify a scheduling order? There is not a ton of authority in Mississippi on it. However, there is 5th circuit caselaw on it which I suspect most Mississippi Courts would follow.  Below is some language that should be helpful authority.

Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order may only be modified "for good cause and with the judge's consent." The Fifth Circuit has explained that "[t]he good cause standard requires the `party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'" S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir.2003) (quoting 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1522.1 (2d ed.1990)). In other words, the party who seeks to modify a scheduling order deadline must show that, despite acting diligently, it will still be unable to meet that deadline. Rivera v. County of Willacy, *493 2007 U.S. Dist. LEXIS 41401, at *2, 2007 WL 1655303, *1 (S.D.Tex. June 6, 2007). Mere stipulations by the parties do not constitute good cause. Id. at *1, 2007 U.S. Dist. LEXIS 41401 at *3 (citing Chiropractic Alliance of N.J. v. Parisi, 164 F.R.D. 618, 621 (D.N.J.1996)). "Neither the parties nor their counsel have the authority to stipulate or otherwise agree to changes in the Court's orders regarding discovery or any other scheduling matter unless expressly authorized to do so by Rule or by Court order." Olgyay v. Society for Environmental Graphic Design, 169 F.R.D. 219, 219 (D.D.C.1996).

In the context of an untimely motion to submit expert reports, designate experts, or amend the pleadings, the Fifth Circuit Court of Appeals applies a four-factor balancing test to determine whether good cause exists: (1) the explanation for the failure to adhere to the deadline at issue; (2) the importance of the proposed modification to the scheduling order; (3) potential prejudice; and (4) the availability of a continuance to cure such prejudice. See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.1997) (submit expert reports); see Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (designate expert witnesses); see S & W Enters., LLC, 315 F.3d at 536 (amend the pleadings). At least one district court in the Southern District of Texas has also utilized this test in the context of a motion to reopen discovery. See United States v. McFerrin, 2007 U.S. Dist. LEXIS 91022, at *2, 2007 WL 4353709, *1 (S.D.Tex. Dec. 11, 2007) (citing Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir.2003)); see also Carmona v. Carmona, 2006 U.S. Dist. LEXIS 88868, at *6-7, 2006 WL 3839851, *3-4 (S.D.Tex. Dec. 8, 2006) (citing Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir.2005)).

Notwithstanding this four-factor test, the court still has the "inherent power to control its own docket to ensure that cases proceed before it in a timely and orderly fashion." U.S. v. Waldman, 579 F.2d 649, 653 (1st Cir.1978) (citing United States v. Correia, 531 F.2d 1095, 1098 (1st Cir.1976)). The purpose of a scheduling order is to allow the district court to control and expedite pretrial discovery matters. Geiserman, 893 F.2d at 790. Scheduling orders and their enforcement are regarded as essential in ensuring that cases proceed to trial in a just, efficient, and certain manner. Rouse v. Farmers State Bank of Jewell, Iowa, 866 F.Supp. 1191, 1198 (N.D.Iowa 1994) (citations omitted). To achieve this end, the Court is given broad discretion so that the integrity and purpose of the pretrial order may be preserved. See Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir.2008) (stating that the district court's decision regarding whether to modify a scheduling order is afforded great deference, especially where the facts of the case suggest a lack of diligence on the part of the movant); S & W Enters., LLC, 315 F.3d at 535; Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.1979).

No comments:

Post a Comment