Buttermilk Sky of TN LLC v. Bake Moore, LLC

Full title: BUTTERMILK SKY OF TN LLC and BUTTERMILK SKY FRANCHISING INC. v. BAKE…

Court: United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

Date published: May 3, 2021

Civil Action No. 4:20-cv-327 (E.D. Tex. May. 3, 2021)

Opinion

Civil Action No. 4:20-cv-327

05-03-2021

BUTTERMILK SKY OF TN LLC and BUTTERMILK SKY FRANCHISING INC. v. BAKE MOORE, LLC, ONE MOORE TIME, LLC, CLARK BAKERY FRISCO LLC, AGAPE PIES LLC, CRAIG MOORE, DONNIE ROBERTSON, LEAH CLARK, and RACHEL DYMOND

Judge Mazzant

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiffs' Motion for Extension of Scheduling Order Deadlines and Continuance of Trial Date (Dkt. #78). After consideration, the Court finds the Motion should be GRANTED in part.

BACKGROUND

On September 25, 2020, the Court issued a scheduling order that set the pretrial conference for July 1, 2021 (Dkt. #64).

On April 14, 2021, Plaintiffs Buttermilk Sky of TN LLC and Buttermilk Sky Franchising, Inc., and Counter-Defendants Scott and Meredith Layton moved for an extension and continuance of trial. On April 22, 2021, Defendants Bake Moore, LLC, Donnie Robertson, One Moore Time, LLC, Craig Moore, Clark Bakery Frisco LLC, Leah Clark, Agape Pies LLC, and Rachel Dymond responded (Dkt. #79). On April 29, 2021, Plaintiffs and Counter-Defendants replied (Dkt. #80).

LEGAL STANDARD

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) (citation removed); see also Hernandez v. Mario's Auto Sales, Inc., 617 F. Supp. 2d 488, 492 (S.D. Tex. 2009).

To determine whether good cause exists, the Court considers (1) the explanation for the party's failure to meet the deadline; (2) the importance of the discovery; (3) potential prejudice in allowing the discovery; and (4) the availability of a continuance to cure such prejudice. Russell v. Wal-Mart Stores, No: 1:06-CV-408, 2007 WL 9725186, at *2 (E.D. Tex. Jun. 7, 2007).

ANALYSIS

Plaintiffs and Counter-Defendants ask the Court to extend all remaining deadlines by approximately three months, including moving the pretrial conference from July 1, 2021, to September 29, 2021. The Court finds good cause to extend the deadlines by two months.

Plaintiffs and Counter-Defendants ask for an extension to have sufficient time to depose witnesses, conduct arbitration, and conduct additional discovery in this complicated case (See Dkt. #78). Defendants argue all necessary discovery can be completed without moving the pretrial conference.

To show good cause, Plaintiffs and Counter-Defendants must "demonstrate that [they] could not have met the deadline despite [their] diligence." StoneCoat of Tex., LLC v. ProCal Stone Design, LLC, 4:17-cv-303, 2019 WL 9901442, at *7 (E.D. Tex. Sept. 9, 2019). This case was filed in April 2020, yet, to date, no one has been deposed (Dkt. #78 at p. 5). Plaintiffs assert depositions were delayed because of the COVID-19 pandemic, but this does not explain why depositions were not taken remotely (Dkt. #78 at p. 5). Currently, the only depositions are scheduled for May 18-21, 2021—a month after discovery closes (Dkt. #79 at p. 2). This is not diligent.

Next, the Court considers the importance of what the Court is excluding. Plaintiffs argue a three-month extension is necessary to conduct a thorough investigation. The Court agrees it is reasonable to conduct additional discovery after conducting depositions. Although Plaintiffs were not diligent in scheduling depositions, extending discovery is necessary for them to thoroughly investigate their complex claims.

A limited extension will not prejudice Defendants, nor do they identify any prejudice in their response (See Dkt. #79). A brief extension would minimally prolong the case's resolution while ensuring that both sides are adequately prepared for trial.

Finally, the Court must consider whether there is a continuance available to cure the prejudice. The Court finds that an approximately two-month extension is a reasonable amount of time to ensure both a thorough investigation and a speedy resolution.

The Court finds that good cause exists to amend the scheduling order with a two-month extension.

CONCLUSION

It is therefore ORDERED that Plaintiffs' Motion for Extension of Scheduling Order Deadlines and Continuance of Trial Date (Dkt. #78) is hereby GRANTED IN PART. It is hereby ORDERED that the following deadlines are extended by approximately two months:

July 15, 2021	All discovery shall be commenced in time to be completed bythis date.
July 22, 2021	Notice of intent to offer certified records
July 22, 2021	Counsel and unrepresented parties are each responsible forcontacting opposing counsel and unrepresented parties todetermine how they will prepare the Joint Final Pretrial Order

	(See www.txed.uscourts.gov) and Joint Proposed JuryInstructions and Verdict Form (or Proposed Findings of Factand Conclusions of Law in non-jury cases).
July 29, 2021	Video Deposition Designation due. Each party who proposesto offer a deposition by video shall serve on all other partiesa disclosure identifying the line and page numbers to beoffered. All other parties will have seven calendar days toserve a response with any objections and requesting cross-examination line and page numbers to be included. Counselmust consult on any objections and only those which cannotbe resolved shall be presented to the court. The party whofiled the initial Video Deposition Designation is responsiblefor preparation of the final edited video in accordance withall parties' designations and the Court's rulings on objections.
August 2, 2021	Motions in limine due.File Joint Final Pretrial Order. (See www.txed.uscourts.gov).
August 19, 2021	Response to motions in limine due.1File objections to witnesses, deposition extracts, and exhibits,listed in pre-trial order.2 (This does not extend the deadlineto object to expert witnesses) (Provide the exhibit objected toin the motion or response). If numerous objections are filedthe court may set a hearing prior to docket call.File Proposed Jury Instructions/Form of Verdict (or ProposedFindings of Fact and Conclusions of Law).
Date will be set by Court.	If numerous objections are filed the court may set a hearingto consider all pending motions and objections (usuallywithin 10 days prior to the Final Pretrial Conference).
September 2, 2021	Final Pretrial Conference at 9:00 a.m. at the Paul BrownUnited States Courthouse located at 101 East Pecan Street inSherman, Texas. Date parties should be prepared to try case.All cases on the Court's Final Pretrial Conference docket for

	this day have been set at 9:00 a.m. However, prior to the FinalPretrial Conference date, the Court will set a specific timebetween 9:00 a.m. and 4:00 p.m. for each case, depending onwhich cases remain on the Court's docket.
To be determined	10:00 a.m. Jury selection and trial at the Paul Brown UnitedStates Courthouse located at 101 East Pecan Street inSherman, Texas. Cases that remain for trial following theCourt's Pretrial docket will be tried between October 4, 2021and October 29, 2021. A specific date within this time framewill be selected at the Final Pretrial Conference.

1 This is not an invitation or requirement to file written responses. Most motions in limine can be decided without a written response. But, if there is particularly difficult or novel issue, the Court needs some time to review the matter. To save time and space respond only to items objected to. All others will be considered to be agreed. Opposing counsel shall confer in an attempt to resolve any dispute over the motions in limine within five calendar days of the filing of any response. The parties shall notify the court of all the issues which are resolved.

2 Within five calendar days after the filing of any objections, opposing counsel shall confer to determine whether objections can be resolved without a court ruling. The parties shall notify the court of all issues which are resolved. The court needs a copy of the exhibit or the pertinent deposition pages to rule on the objection. --------

SIGNED this 3rd day of May, 2021.

/s/_________

AMOS L. MAZZANT

UNITED STATES DISTRICT JUDGE