HomeMy WebLinkAbout2017CV1177 - MCGRATH V. FCPS OFFICER NICK ROGERS - 019 - UNOPPOSED MOTION TO AMEND SCHEDULING ORDERIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:17-cv-01177-LTB-NYW
DAKOTA TYLER MCGRATH,
Plaintiff,
v.
FORT COLLINS POLICE SERVICES OFFICER NICK RODGERS, in his individual capacity,
Defendant.
UNOPPOSED MOTION TO AMEND CIVIL SCHEDULING
ORDER TO REFLECT 60-DAY EXTENSION OF DISCOVERY
CUTOFF AND DISPOSITIVE MOTIONS DEADLINE
Plaintiff Dakota McGrath, by and through counsel, Anthony Viorst of the Viorst Law
Offices, P.C., respectfully submits his Unopposed Motion to Amend Civil Scheduling Order to
Reflect Extension of Discovery Cutoff and Dispositive Motions Deadline, such that the Scheduling
Order in this case is modified to reflect a 60-day extension of the discovery cutoff, until May 4,
2018, as well as a 60-day extension of the dispositive motion deadline, until June 6, 2018, as
follows:
1. STATEMENT AS TO CONFERRAL: Pursuant to D.C.Colo.LCivR 7.1(A), the
undersigned conferred with counsel for Defendant Officer Nick Rogers (“Defendant”) on the relief
Plaintiff requests. Defendant’s counsel advised Defendant does not oppose the requested relief.
2. In the current Scheduling Order, the current deadline for the close of discovery is
March 5, 2018, and the current deadline for the filing of dispositive motions is April 6, 2018. [ECF
No. 12.]
Case 1:17-cv-01177-LTB-NYW Document 19 Filed 02/02/18 USDC Colorado Page 1 of 5
3. For the reasons stated in this Unopposed Motion, Plaintiff requests that both parties
be afforded until and including May 4, 2018, within which to conduct all discovery in this matter,
and until and including June 6, 2018, within which to prepare and file dispositive motions.
4. RELEVANT FACTS: Mr. McGrath is currently undergoing inpatient treatment
at Centennial Peaks Hospital, a mental health facility located in Louisville, Colorado. Upon
information and belief, Mr. McGrath’s treatment at Centennial Peaks has included electric-shock
therapy. Mr. McGrath’s deposition is currently scheduled for February 8, 2018. However, he may
not be released from Centennial Peaks by that date and, even if he has been released by that date,
his mental health status may prevent him from undertaking a deposition so close in time to his
release.
5. RELEVANT LAW: Under Fed.R.Civ.P. 16(b)(4), a scheduling order “may be
modified only for good cause and with the judge’s consent.” Movants must show the scheduling
deadline cannot be met despite diligent efforts and may be satisfied if, for example, the movants
learn new information through discovery. See Birch v. Polaris Indus., 812 F.3d 1238, 1247 (10th
Cir. 2015). Rigid adherence to a pretrial scheduling order is not advisable, see SIL-FIO v. SFHC,
Inc., 917 F.2d 1507, 1519 (10th Cir. 1990), and total inflexibility is quite undesirable in the context
of a motion to amend a scheduling order, see Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604
(10th Cir. 1997). When faced with a motion to extend discovery, a court considers the following
factors: (a) whether trial is imminent; (b) whether the request to extend discovery is opposed; (c)
whether the non-moving party would be prejudiced; (d) whether the moving party was diligent in
obtaining discovery within guidelines the Court established; (e) the foreseeability of the need for
additional discovery in light of the time allowed for discovery by the Court; and (f) the likelihood
Case 1:17-cv-01177-LTB-NYW Document 19 Filed 02/02/18 USDC Colorado Page 2 of 5
that the discovery will lead to relevant evidence. See Smith v. United States, 834 F.2d 166, 169
(10th Cir. 1987); Lehman Bros. Holdings, Inc. v. Univ. Am. Mortg. Co., LLC, 300 F.R.D. 678,
681 (D. Colo. 2014) (granting motion to amend scheduling order).
6. (A) Trial Is Not Imminent: Although both a final pretrial conference and the trial
are set in this matter, they will not occur until late in the fourth quarter of 2018. Hence, this factor
weighs heavily in favor of the requested relief.
7. (B) No Opposition to Request: Defendant does not oppose. Hence, this factor
weighs heavily in favor of the requested relief.
8. (C) No Prejudice: No deadlines to conduct discovery or to prepare and file
dispositive motions have passed. Counsel for both parties in this matter agree a need exists to
extend the remaining discovery deadlines in this matter due to the necessity of Plaintiff’s
deposition and any additional need to obtain documents or witnesses that may arise thereafter.
Hence, neither the parties nor the Court will experience prejudice if the relief Plaintiff seeks is
granted, meaning this factor weighs heavily in favor of the requested relief.
9. (D) Diligence: As the Court is aware from a review of the docket, an examination
of this case’s progression of pretrial proceedings reveals the parties have not been dilatory. Both
the deposition of Defendant and the deposition of one of Plaintiff’s non-retained treating providers
have occurred, the parties have exchanged written discovery and expert pleadings, and Plaintiff’s
health care circumstances arose fairly suddenly and were occasioned by factors not entirely within
the control of Plaintiff. Hence, this factor weighs heavily in favor of the requested relief.
10. (E) Foreseeability: Because Plaintiff’s health care circumstances arose fairly
suddenly and were occasioned by factors not entirely within the control of Plaintiff, the need for
Case 1:17-cv-01177-LTB-NYW Document 19 Filed 02/02/18 USDC Colorado Page 3 of 5
additional time for written or testimonial discovery and for dispositive motions was not
foreseeable, and this factor weighs heavily in favor of the requested relief.
11. (F) Relevant Evidence: Without question, Plaintiff’s deposition and any additional
need to obtain documents or witnesses that may arise thereafter will lead to discovery of evidence
relevant to the parties’ claims and defenses. Hence, this factor weighs heavily in favor of the
requested relief.
12. FIRST REQUEST FOR EXTENSION: This is the first request by any party for
an extension of time of any discovery deadline in this case. And since the final pretrial conference
is not set to occur until November 2, 2018, neither the parties nor the Court will be prejudiced.
13. GOOD CAUSE: Given all six factors weigh heavily in favor of the requested
relief, good cause exists for this Court to grant the relief Plaintiff seeks for the benefit of all parties.
14. CONCLUSION: In conclusion, for the foregoing reasons, Plaintiff Dakota
McGrath respectfully requests that the Court grant this Unopposed Motion and amend the
deadlines in ECF No. 12 to reflect that both parties be afforded until and including May 4, 2018,
within which to conduct all discovery in this matter, whether written or testimonial, and until and
including June 6, 2018, within which to prepare and file dispositive motions.
Respectfully submitted this 2
nd
day of February, 2018.
THE VIORST LAW OFFICES, P.C.
[Original signature on file at Viorst Law Offices, P.C.].
s/ Anthony Viorst
Anthony Viorst, #18508
Viorst Law Offices, PC
950 South Cherry Street, Suite 300
Denver, CO 80246
Telephone: (303) 759-3808
Facsimile: (303) 333-7127
E-mail: tony@hssspc.com
ATTORNEYS FOR PLAINTIFF
Case 1:17-cv-01177-LTB-NYW Document 19 Filed 02/02/18 USDC Colorado Page 4 of 5
CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on this 2
nd
day of February, 2018, I electronically filed the foregoing
UNOPPOSED MOTION TO AMEND CIVIL SCHEDULING ORDER TO REFLECT
EXTENSION OF DISCOVERY CUTOFF AND DISPOSITIVE MOTIONS DEADLINE
FROM PLAINTIFF with the Clerk of Court using the CM/ECF system which will notify the
following email addresses of such filing:
Thomas J. Lyons, Esq.
Matthew J. Hegarty, Esq.
HALL & EVANS, L.L.C.
lyonst@hallevans.com
hegartym@hallevans.com
Attorneys for Defendant
[Original signature on file at Viorst Law Offices, P.C.].
s/ Michelle Spadavecchia
Legal Assistant
Case 1:17-cv-01177-LTB-NYW Document 19 Filed 02/02/18 USDC Colorado Page 5 of 5