United States District Court, S.D. Mississippi, Northern Division
ORDER GRANTING MOTION FOR EXTENSION OF DISCOVERY
KEITH BALL, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Emergency Motion to Extend
Discovery Deadline . The Case Management Order
(“CMO”) currently requires completion of
discovery by November 2, 2017. Plaintiff seeks a modification
of the CMO which would allow her to conduct additional
discovery. For the reasons described below, the Court grants
schedul[ing 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., LLC, 782 F.3d 224, 237 (5th Cir. 2015).
“There are four relevant factors to consider when
determining whether there is good cause under Rule 16(b)(4):
‘(1) the explanation for the failure to timely [comply
with the scheduling order]; (2) the importance of the
[modification]; (3) potential prejudice in allowing the
[modification]; and (4) the availability of a continuance to
cure such prejudice.' Id. (citing Meaux
Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167
(5th Cir. 2010)).
Court finds that Plaintiff has shown good cause to extend the
discovery deadline. In her motion, Plaintiff points to
several events which have impeded her ability to conduct
discovery. A review of the docket shows Plaintiff's
argument have merit.
Smith removed this case to this Court on December 18, 2015.
On January 27, 2016, the Court stayed discovery while
considering a Motion to Remand . After denying remand, the
Court entered the CMO on June 14, 2016, reopening discovery
in the case.
only ten days later, counsel for Smith filed a motion to
withdraw. The Court granted the motion on June 27, 2016, and
stayed the case entirely. New counsel for Smith did not enter
an appearance until September 23, 2016.
Smith's counsel entered an appearance, the Court held a
scheduling conference and set new deadline, including a
discovery deadline of April 18, 2017. However, However, on
March 31, 2017, Smith filed a Motion for a Protective Order
, seeking to prohibit Plaintiff from taking his
deposition while he faced certain criminal charges in Hinds
County, Mississippi state court. In his motion, Smith
recognized “if the deposition is postponed, the
discovery deadline and the motion deadline will have to be
extended.”  at 2. Smith's motion for a
protective order and ongoing criminal prosecution effectively
postponed Plaintiff's ability to take his deposition
until the criminal case against Smith ended on August 8,
2017, when he was acquitted. On August 10, 2017, the Court
entered an order denying Smith's motion for a protective
order as moot and granting permission to Plaintiff to
continue discovery related to him.
states that she attempted in August and September to contact
Smith's counsel to schedule his deposition, but that she
“did not receive a response from counsel for
defendant.”  at 2. Plaintiff attaches an email she
sent to Smith's counsel on September 20, 2017. [94-1].
Plaintiff states that she received no response to the email.
Having received no response, she filed a Notice of Deposition
setting Smith's deposition for October 13, 2017. On
October 5, 2017, Smith's counsel responded to
Plaintiff's September 20, 2017, email, advising her that
he had a conflict on October 13, 2017, but offered a variety
of other dates. Plaintiff selected October 18, 2017, for
Smith's deposition. However, after starting the
deposition on October 18, 2017, Smith left the deposition
early, and the deposition was continued until October 20,
also explains that althought she noticed a 30(b)(6)
deposition of Hinds county for October 19, 2017, counsel for
Hinds County notified her of a conflict, and Plaintiff has
been unable to get another date for the deposition prior to
the discovery deadline. While Smith argues that Plaintiff
should have scheduled the Hinds County deposition of Hinds
County sooner, the fact remains that the deposition was
noticed to take place prior to the discovery deadline.
Plaintiff explains that she has experienced personal health
issues while also litigating this case pro se, after
the withdrawal of her counsel in April 2017. The Court is
sympathetic to Plaintiff's position, and, especially
combined with the other factors discussed above, finds that
this too represents a valid explanation as to why she has
been unable to complete discovery by the November 2, 2017
Court further finds that the requested extension is important
and necessary to afford Plaintiff an opportunity to complete
discovery and that Plaintiff would suffer prejudice if not
afforded such an opportunity. The Court finds that Smith
presents no argument at all as to what prejudice he would
face if the requested extension is granted.
the Court hereby grants Plaintiff's motion and amends the
scheduling order in this case as follows:
This action is set for a jury trial during a two-week term
of court beginning on July 2, 2018, at 9:00 a.m. in
Jackson, Mississippi, before United States District Judge
Daniel P. Jordan, III.
The pretrial conference is set on June 8, 2018 at 9:00 a.m.
in Jackson, Mississippi, before United States District
Judge Daniel P. Jordan, III.
All discovery must be completed by January 19, 2018.
All dispositive motions and Daubert-type motions
challenging another party's expert must be filed by
February 2, 2018. The ...