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Buchanan v. Sirius XM Radio, Inc.

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

April 24, 2018

THOMAS BUCHANAN, on behalf of himself and all others similarly situated, Plaintiff,
v.
SIRIUS XM RADIO, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE

         In this putative class action by plaintiff Thomas Buchanan (“Buchanan”), on behalf of himself and all others similarly situated, against defendant Sirius XM Radio, Inc. (“Sirius XM”), Buchanan moves for a 60 day extension of the deadline to file a motion for class certification, which expired on March 27, 2018. Sirius XM moves the court to order Buchanan to serve Sirius XM with his class certification motion. For the reasons that follow, the court grants Buchanan's motion and denies Sirius XM's motion as moot.

         I

         Buchanan sues Sirius XM, alleging that it violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., by placing telemarketing calls to individuals who had registered either with the National Do Not Call Registry or Sirius XM's internal do-not-call list. The court entered a scheduling order that set October 16, 2017 as the deadline for filing a motion for class certification. This deadline has been extended four times.

         First, the court granted the parties' agreed motion to extend the class certification motion deadline to October 23, 2017 based on Sirius XM's need for an additional week to respond to discovery requests. Second, the court granted the parties' October 20, 2017 agreed motion to extend the deadline to January 12, 2018. The motion stated that the parties had not yet negotiated the documents to exchange, and the parties therefore needed additional time for discovery. The parties proceeded with discovery, but they encountered disputes about certain documents, which delayed the process. The parties filed a third agreed motion for an extension of the deadline until January 26, 2018, which the court granted on January 9, 2018. Due to Sirius XM's intention to soon produce additional relevant documents, Buchanan filed a fourth request for an extension of the deadline. In response, although Sirius XM contested the factual basis for Buchanan's motion, it stated that it “[did] not oppose an extension.” D. 1/26/18 Resp. 1-2. The court treated the motion as unopposed, granted the request, and extended the deadline to March 27, 2018.

         On March 7, 2018 Buchanan filed a motion to compel and a motion for protective order. Buchanan asked the court to compel Sirius XM to produce its internal do-not-call list and its call log, including call recipients' telephone numbers, names, and addresses. The magistrate judge ordered the parties to meet and confer about each disputed item. After the parties met, they submitted their memorialized agreements to the court on March 28, 2018. They agreed, inter alia, that Sirius XM would produce its call log, without names and addresses of the call recipients, as well as additional documents, including vendor agreements that Sirius XM had withheld pending entry of a protective order.

         On March 24, 2018 Buchanan filed the instant motion for a 60 day extension of the deadline to file a motion for class certification, in which it asks the court to extend the deadline to May 29, 2018.[1] Sirius XM opposes the motion. Because Buchanan's motion was still pending on March 27, 2018-the current deadline for filing the class certification motion-Buchanan submitted a paper copy of the motion for class certification to the court's chambers.[2] Sirius XM then moved the court to order Buchanan to serve the class certification motion on Sirius XM. The court now decides both motions.

         II

         A

         To modify the scheduling order, a party must demonstrate good cause and obtain the judge's consent. Cartier v. Egana of Switz. (Am.) Corp., 2009 WL 614820, at *2 (N.D. Tex. Mar. 11, 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)).

In determining whether the movant has met its burden under [Fed. R. Civ. P.] 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).

         B

         Buchanan does not cite Rule 16(b)(4) in his brief, [3] but the court will not deny his motion on this basis because the grounds on which he relies enable the court to apply the pertinent four-factor test. See, e.g., Cartier, 2009 WL 614820 at *2 (‚ÄúCartier does not brief its motion under the Rule 16(b)(4) good cause standard or related ...


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