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Hernandez v. Continental American Corporation

United States District Court, N.D. Texas, Dallas Division

June 15, 2017

MARIA HERNANDEZ, Individually and as the Personal Representative of the Estate of Juan Serna, Deceased, Plaintiff,
v.
CONTINENTAL AMERICAN CORPORATION d/b/a PIONEER BALLOON COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE

         This is a removed action in which plaintiff Maria Hernandez (“Hernandez”), individually and as the personal representative of the Estate of Juan Serna (“Serna”), Deceased, sues defendant Continental American Corporation d/b/a Pioneer Balloon Company (“Continental”), alleging that Serna was injured during the course of his employment with Continental. Continental has filed a motion and amended motion to compel arbitration and a motion to modify the scheduling order. Hernandez opposes both motions and moves to modify the scheduling order on other grounds. For the reasons explained, the court denies Continental's motion and amended motion to compel arbitration and motion to modify scheduling order, and grants Hernandez's motion to modify scheduling order.

         I

         Serna filed this lawsuit in state court on December 18, 2014 against Continental, alleging claims for negligence, negligence per se, and/or gross negligence related to a back injury he incurred while handling heavy molds. Continental answered on February 3, 2015 and timely removed the case to this court based on diversity of citizenship.

         Serna died on June 1, 2015, and Hernandez was substituted as the plaintiff over one year later, on July 7, 2016. Thereafter, the parties jointly filed a motion to continue the trial. In granting the motion, the court cited N.D. Tex. Civ. R. 40.1 and reminded the parties that “the granting of a motion for continuance will not extend or revive any deadline that has already expired in a case.” Oct. 26, 2016 Order at 1 (citing Rule 40.1). On February 17, 2017, over two years after the lawsuit was filed, Continental filed the instant motion to compel arbitration. Hernandez objects to this motion for a variety of reasons, including on the grounds that Continental waived its right to arbitrate, the motion was more than nine months late, and Continental failed to move to modify the scheduling order. Continental now moves to modify the scheduling order in addition to moving to compel arbitration. Hernandez opposes the motions and moves on separate grounds to modify the scheduling order to permit further discovery.

         II

         The court turns first to Continental's motion to modify the scheduling order. Because the motion to compel arbitration was filed after the applicable deadline in the scheduling order, if the scheduling order is not modified, Continental's motion should be denied on that basis alone.

         Fed. R. Civ. P. 16(b)(4) governs a party's request to modify a scheduling order. Cartier v. Egana of Switz. (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 focuses on the diligence of the party seeking to modify the scheduling order.” Cut-Heal Animal Care Prods., Inc. v. Agri-Sales Assocs., Inc., 2009 WL 305994, at *1 (N.D. Tex. Feb. 9, 2009) (Fitzwater, C.J.). 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)). “Mere inadvertence on the part of the movant, and the absence of prejudice to the non-movant, are insufficient to establish ‘good cause.'” Price v. United Guar. Residential Ins. Co., 2005 WL 265164, at *4 (N.D. Tex. Feb. 2, 2005) (Fish, C.J.) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). Instead, the movant must show that, despite its diligence, it could not reasonably have met the scheduling deadline. See S & W Enters., 315 F.3d at 535; Am. Tourmaline Fields v. Int'l Paper Co., 1998 WL 874825, at *1 (N.D. Tex. Dec. 7, 1998) (Fitzwater, J.) (citing 6A Charles Alan Wright, et al., Federal Practice & Procedure § 1522.1 at 231 (2d ed. 1990)); Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (citing S & W Enters., 315 F.3d at 535).

         “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).

         III

         A

         Continental has not briefed the good cause factors in its motion, but the grounds on which it relies enable the court to apply the pertinent four-factor test.[1] Continental contends that “[o]nce Plaintiff Juan Serna passed away in June 2015 . . . [t]here was no Plaintiff to depose and no other party on which to serve with Motions.” D. Br. 3. It maintains that, due to the length of time between Serna's death and Hernandez's substitution as plaintiff in July 2016, “every single deadline in the Court's Scheduling Order had expired through no fault on the part of [Continental].” Id. Continental posits that, “[b]ecause there was no Plaintiff until July 2016, there was nothing that [Continental] could have done in order to meet the scheduling order ...


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