Opinion
CIVIL ACTION No: 00-2497-CM
September 17, 2001
MEMORANDUM AND ORDER
This matter is before the Court on the following motions: (1) Plaintiff's Motion to Amend Plaintiff's Complaint Out of Time (doc. 33); and (2) Defendant's Motion for Protective Order to Quash Notice of Depositions of Francois Henriquez and Linda Pfingsten (doc. 28).
I. Motion to Amend
Plaintiff seeks to amend the Complaint to add a claim for constructive discharge. Defendant opposes the motion on the basis that it is untimely and on other various grounds.
Fed.R.Civ.P. 15(a) provides that, after the permissive period, a party may amend its pleadings "only by leave of court or by written consent of the adverse party." The decision whether to allow a proposed amendment addresses the sound discretion of the court. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1494 (10th Cir. 1995). "Untimeliness in itself can be a sufficient reason to deny leave to amend, particularly when the movant provides no adequate explanation for the delay." Id. at 1495. In addition, if the motion is filed after the Scheduling Order deadline, as here, the moving party must show good cause for allowing the amendment out of time. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518 (10th Cir. 1990). To establish good cause, the moving party must show that the deadline "could not have been met with diligence." Denmon v. Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993). Plaintiff's motion was filed more than three months after the deadline set forth in the Scheduling Order for filing motions to amend. It was also filed after the close of discovery and only a few weeks before the Pretrial Conference. Plaintiff has not demonstrated good cause for permitting the amendment out of time. The Court will therefore deny the motion to amend.
II. Defendant's Motion for Protective Order to Quash Notice of Depositions
Defendant's motion seeks to quash the deposition notices served on Linda Pfingsten and Francois Henriquez. Defendant has informed the Court that the issues relating to Ms. Pfingsten's deposition have been resolved. The Court will therefore deny the motion as moot with respect to Ms. Pfingsten's deposition.
The Court will grant the motion with respect to the deposition of Francois Henriquez, who is Defendant's General Counsel. As Defendant points out, special rules apply to the depositions of a party's counsel. In Simmons Foods, Inc. v. Willis, 191 F.R.D. 625 (D. Kan. 2000), this Court set forth the standard for determining when the deposition of a party's attorney should be allowed. The Court held that the deposition of opposing counsel should be limited to those circumstances where the party seeking to take the deposition shows that "(1) no other means exist to obtain the information except to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case." Id. at 630 (citations omitted).
Plaintiff has failed to show that these circumstances exist here. The Court will therefore grant Defendant's request for a protective order with respect to the deposition of its General Counsel, Francois Henriquez.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Amend Plaintiff's Complaint Out of Time (doc. 33) is denied.
IT IS FURTHER ORDERED that Defendant's Motion for Protective Order (doc. 28) is denied as moot as to the deposition of Linda Pfmgsten and granted as to the deposition of Francois Henriquez.