United States District Court, N.D. Texas, Dallas Division
MARIA HERNANDEZ, Individually and as the Personal Representative of the Estate of Juan Serna, Deceased, Plaintiff,
CONTINENTAL AMERICAN CORPORATION d/b/a PIONEER BALLOON COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE
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.
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.
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
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
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
‘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
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).
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. 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 ...