The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge
ORDER GRANTING IN PART PLAINTIFFS' EX PARTE MOTION TO EXTEND DATES IN THE SCHEDULING ORDER [Doc. No. 44]
FIRST AMENDED SCHEDULING ORDER REGULATING DISCOVERY AND OTHER PRETRIAL PROCEEDINGS
George Brooks and Brooks Industries, Inc. (Plaintiffs) filed this ex parte application to extend dates in the scheduling order. Motsenbocker Advanced Developments, Inc. (MAD), Gregg Motsenbocker and Skip Motsenbocker (collectively, Defendants) have not filed an opposition. Even though this Court finds that Plaintiffs grossly misrepresent the procedural history of this case and mischaracterize the Court's actions, it still GRANTS in part the ex parte application. The Court also ADMONISHES Plaintiffs that any future filings must contain supported facts that accurately characterize the parties' and the Court's actions.
Plaintiffs ask this Court to modify the scheduling order by continuing all dates in it for 90 days. In support, they say hardly any documents have been produced even though discovery has been open for around six months. Plaintiffs' counsel cites many scheduling issues in his own calendar. Finally, Plaintiffs also try to blame the Court--twice-- for the delay in receiving discovery documents:
Plaintiffs promptly submitted requests for production and issued subpoenas and requested a protective order in August and September. The Court did not issue a protective order until six months later and did not order Defendants to respond to August requests for production until 1 February 2008--almost seven months after requested!
Pls.' Application, p.2, ll.11-17; p.11, ll.7-12.
Plaintiffs grossly misrepresent the Court's actions. The Court now clarifies the record.
On June 27, 2007, the Court filed an order setting Rule 26 compliance. [Doc. No. 9.] Per that order, the parties were to make initial disclosures by July 30, 2007.
On July 17, 2007, Plaintiffs filed a motion before District Judge Moskowitz for leave to file a first amended complaint. [Doc. No. 11.] The hearing date for that motion was September 14, 2007. On July 23, Judge Moskowitz referred Plaintiffs' motion to the undersigned for decision. This Court moved up the hearing date for Plaintiffs' motion to September 6. [Doc. No. 16.]
Meanwhile, on August 10, 2007, this Court issued a scheduling order regulating discovery and other pretrial proceedings. [Doc. No. 19.] Then, on the same day as the hearing--September 6, 2007--this Court issued an order granting Plaintiffs' motion for leave to file an amended complaint and ordered Plaintiffs to file their amended complaint forthwith. [Doc. No. 24.] But Plaintiffs never filed one. This Court then had to issue a second order reminding Plaintiffs to file the first amended complaint that they had asked for, and ordered them to do it by October 1. [Doc. No. 25.] Plaintiffs filed it September 25. [Doc. No. 27.]
Not until September 26, 2007--almost two months after initial disclosures were due--did Plaintiffs file a motion to compel Defendants to make initial disclosures and requested that the Court enter a protective order. [Doc. No. 29.] This Court set the hearing date for that motion on October 24--exactly 28 days after it was filed--and the minimum time required for motion hearings under the local rules.
Defendants, in the meantime, filed an answer to the first amended complaint on October 15. [Doc. No. 31.]
Five days after the hearing, this Court issued an order largely denying Plaintiffs' motion to compel as premature and denying without prejudice the motion for protective order. [Doc. No. 35.] The Court found that Defendants in fact provided initial disclosures that cover the four requirements of Rule 26(a)(1), and ordered Defendants to supplement their disclosures as they became aware of any other information. While Plaintiffs found these disclosures to be "incomplete," the Court noted that Defendants would be limited to using only the witnesses and exhibits they identified in their initial disclosures and supplements thereto. The Court also denied Plaintiffs' request for a protective order as premature, because at that point in time, Defendants had not ...