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Choice Hotels International, Inc. v. Goldmark Hospitality, LLC

United States District Court, Fifth Circuit

January 9, 2014

GOLDMARK HOSPITALITY, LLC, et al., Defendants.


SIDNEY A. FITZWATER, Chief District Judge.

Defendant Goldmark Hospitality, LLC ("Goldmark") moves to amend the scheduling order[1] and to compel the deposition of Byron Bean ("Bean") beyond the discovery deadline.[2] For the reasons that follow, the court denies the motions.


On May 22, 2012 the court entered the scheduling order in this case. Pertinent to Goldmark's motion to amend the scheduling order, the court set June 24, 2013 as the deadline to complete discovery and July 15, 2013 as the deadline to file a motion for summary judgment. Plaintiff Choice Hotels International, Inc. ("Choice Hotels") served Fed.R.Civ.P. 26(a) disclosures on May 21, 2012 that identified Bean as possessing information that Choice Hotels would potentially rely on in this case.

On June 13, 2013 Goldmark's counsel moved to withdraw. The court granted the motion the same day, ordering Goldmark to obtain and cause new counsel to enter a written appearance within 30 days. On June 14, 2013 Choice Hotels moved for a 60-day extension of the discovery, expert witness, and summary judgment deadlines based on delays caused by the withdrawal of Goldmark's counsel. The court granted the motion, extending the discovery deadline to August 23, 2013 and the deadline for filing a summary judgment motion to September 13, 2013. On June 26, 2013 Choice Hotels filed its expert witness designations, listing Bean as a non-retained employee expert witness.

On July 12, 2013 Goldmark's new counsel filed a notice of appearance. One week later, Choice Hotels served Goldmark's new counsel with courtesy copies of its amended Rule 26(a) initial disclosures, expert witness designations, and amended responses to requests for production of documents. Later that month, Goldmark's counsel contacted Choice Hotels' counsel to inquire whether the parties could agree to a second amended scheduling order. Choice Hotels responded that it would not agree to an extension of the deadlines for completing discovery and for filing summary judgment motions.

On August 12, 2013 Choice Hotels served a second notice of intent to take the oral deposition of Goldmark's Rule 30(b)(6) representative, Tim Barton ("Barton"). The notice set the deposition for August 22, 2013-one day before the August 23, 2013 amended discovery deadline. Shortly thereafter, Choice Hotels subpoenaed Barton for his deposition in his individual capacity, to be taken immediately following Barton's Rule 30(b)(6) deposition. Choice Hotels agreed to reschedule the deposition when Goldmark gave notice that Barton would be unavailable on August 22. Because the rescheduled deposition would necessarily be conducted after the August 23 discovery deadline, Choice Hotels filed an unopposed motion to conduct the deposition, which the court granted. The order required that the deposition occur on a mutually agreeable date no later than September 11, 2013, and it specified that the discovery deadline remained August 23, 2013. On August 27, 2013 Goldmark again asked Choice Hotels to agree to an amended scheduling order, but it refused. Goldmark then stated that Barton would be unavailable on the date that had been proposed for the rescheduled deposition and that the parties would "have no choice but to request an additional scheduling order." P. App. Amend 19.

Choice Hotels then moved to compel the deposition of Barton, which the magistrate judge granted. The deposition began on October 29, 2013 and was continued on November 6, 2013.

Goldmark did not serve a notice of deposition for Bean until September 3, 2013. Goldmark's counsel sent the notice by email. Choice Hotels moved to quash the deposition on the grounds that (1) the discovery deadline had expired; (2) the notice did not describe with reasonable particularity the matters for examination, as required by Rule 30(b)(6); (3) the notice only gave Bean three days' notice for the deposition; (4) Bean was not available on the date specified in the notice; and (5) Choice Hotels had not consented to service by electronic means.[3] The magistrate judge granted the motion without prejudice, noting that Goldmark would be able to re-notice the deposition if the court later extended the deadline for conducting discovery or for deposing Bean.

During the continuation of Barton's deposition on November 6, 2013, Goldmark's counsel personally served Choice Hotels' counsel a new notice of deposition for Bean. On the same day, Goldmark filed its motion to compel the deposition of Bean, even though the deadline for completing discovery had expired more than ten weeks earlier.


Fed. R. Civ. P. 16(b)(4) governs a party's request to extend the discovery period after the deadline established by a scheduling order has passed. Cartier v. Egana of Switzerland (Am.) Corp., 2009 WL 614820, at *2 (N.D. Tex. Mar. 11, 2009) (Fitzwater, C.J.). To modify the scheduling order, a party must demonstrate good cause and obtain the judge's consent. Id. The good cause standard "require[s] the movant to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'" Puig v. Citibank, N.A., 514 Fed.Appx. 483, 487-88 (5th Cir. 2013) (per curiam) (quoting S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003)). "In determining whether the movant has met its burden under Rule 16(b)(4), the court considers four factors: (1) the party's explanation, (2) the importance of the requested relief, (3) potential prejudice in granting the relief, and (4) the availability of a continuance to cure such prejudice." Cartier, 2009 WL 614820, at *3 (citing S&W Enters., 315 F.3d at 536). The court considers the four factors holistically and "does not mechanically count the number of factors that favor each side." EEOC v. Serv. Temps, Inc., 2009 WL 3294863, at *3 (N.D. Tex. Oct. 13, 2009) (Fitzwater, C.J.), aff'd, 679 F.3d 323 (5th Cir. 2012).


The court first addresses Goldmark's motion to amend the ...

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