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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MARIYAM AKMAL d/b/a AEGIS IT

SOLUTIONS, INC., et al., 

Plaintiffs,

v.

CINGULAR WIRELESS, INC., et al., 

Defendants.

CASE NO. C06-0748JLR

ORDER

I. INTRODUCTION

This matter comes before the court on a motion to “enlarge discovery period” from

Plaintiff Mariyam Akmal (Dkt. # 26). The court has reviewed the briefing and for the

reasons stated below, GRANTS Ms. Akmal’s motion.

II. BACKGROUND 

Ms. Akmal filed this action alleging breach of contract, promissory estoppel, and

defamation in King County Superior Court on May 3, 2006; Defendants removed to this

court on June 1, 2006 (Dkt. # 1). Counsel for the parties met and devised a mutually

agreeable discovery plan, which Ms. Akmal’s counsel filed on September 8, 2006 (Dkt. #

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Ms. Akmal’s defamation claim appears to be based on Defendants’ communications to

the ESD regarding her employment status. 

ORDER – 2

16). Based on this discovery plan, the court issued a minute order on September 18, 2006

(Dkt. # 17), setting a trial date of July 17, 2006, and the following related deadlines: all

motions related to discovery to be filed by February 20, 2007; discovery to be completed

by March 19, 2007; and all dispositive motions to be filed by April 18, 2007.

The parties exchanged initial disclosures in mid-September 2006. Foster Decl. ¶

2. On September 29, 2006, Defendant TEKsystems requested that Ms. Akmal submit a

“self-request” to the Employment Security Department (“ESD”) in order to obtain records

related to her defamation claim.1

 Id. ¶ 3, Ex. A. TEKsystems provided Ms. Akmal with a

completed “self-request” form to submit to the ESD. Id. Although the record does not

reflect the outcome of this request, it is not disputed that TEKsystems did not receive the

requested signed form or the ESD documents. TEKsystems made additional requests to

Ms. Akmal for the ESD records in October and November 2006 that were equally

unsuccessful. Id. ¶ 7, Ex. B, D. TEKsystems ultimately threatened to file a motion to

compel the documents. Id. 

On December 28, 2006, Ms. Akmal provided Defendants with three pages of

records she obtained from the ESD. The fax records accompanying the records, however,

indicated that the ESD had sent Ms. Akmal five pages. Id. ¶ 7, Ex. D. During Ms.

Akmal’s January 30, 2007 deposition, she provided the additional two pages of ESD

records. Id. ¶ 10. Ms. Akmal also testified that there were more documents, which were

still in the possession of the ESD, to support her defamation claim. At this time,

Defendants requested the additional records, which Ms. Akmal promised to provide. Id.,

Exs. G, H. 

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Defendants’ letter of objection was dated March 6, 2007. Ms. Akmal’s counsel contends

that Defendants’ objection was not received until March 12, 2007, due to a change of address. 

Even if Defendants’ objection was not received until the later date, they were still made within the

applicable 30 day time period. See Fed. R. Civ. P. 33(b)(3), 34(b), 36(a). 

ORDER – 3

According to Ms. Akmal, on February 8, 2007, she renewed an “ongoing and

unanswered request for additional information” from the ESD. Amamilo Aff. ¶ 3, Ex. 1. 

On February 13, 2007, the ESD sent a letter confirming receipt of Ms. Akmal’s request

and stating that an answer would be provided within 20 days of the date of the letter –

i.e., March 5, 2007. Foster Decl. ¶ 11, Ex. I.

Ms. Akmal made her first formal discovery request, comprised of three third-party

subpeonas, on January 15, 2007. Id. ¶ 15, Ex. J. On February 19, 2007, Ms. Akmal

faxed and emailed written discovery requests, including interrogatories, requests for

production of documents, and requests for admission to each Defendant. Id. ¶ 12. 

Defendants objected to the requests as untimely because the due date of the discovery

requests, March 22, 2007, fell after the March 19, 2007 discovery cut-off. Id. ¶ 14.2

 On

March 13, 2007, Ms. Akmal filed this motion to compel Defendants to respond to her

written discovery requests.

III. ANALYSIS

Ms. Akmal requests the court to permit an additional 10 days of discovery to allow

Defendants the opportunity to cure “any perceived prejudice” that may have resulted

from the “serving of the discovery requests on February 19, 2007.” See Mot. at 1. In

doing so, Ms. Akmal seeks an amendment of the court’s September 18, 2006 scheduling

order, which sets a discovery deadline of March 19, 2007.

The scheduling order “controls the subsequent course of the action” unless

modified by the court. Fed. R. Civ. P. 16(e). Rule 16(b) provides that the “scheduling

order shall not be modified except by leave of court and upon a showing of good cause.”

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ORDER – 4

Fed. R. Civ. P. 16(b). Thus, to obtain the modification she seeks, Ms. Akmal must show

“good cause” under Rule 16(b). See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087

(9th Cir. 2002); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir.

1992). A party demonstrates good cause for the modification of a scheduling order by

showing that, even with the exercise of due diligence, he or she was unable to meet the

timetable set forth in the order. Zivkovic, 302 F.3d at 1087; Johnson, 975 F.2d at 609. 

“If the party seeking the modification ‘was not diligent, the inquiry should end’ and the

motion to modify should not be granted.” Zivkovic, 302 F.3d at 1087 (citation omitted);

Johnson, 975 F.2d at 609 (“Although the existence or degree of prejudice to the party

opposing the modification might supply additional reasons to deny a motion, the focus of

the inquiry is upon the moving party’s reasons for seeking modification.”).

Ms. Akmal’s stated reason for her belated discovery requests is confounding. Ms.

Akmal claims that any delay was not in her “reasonable control” because her February 8,

2007 request to the ESD “has not received a response to date.” Mot. at 4-5. As an initial

matter, Ms. Akmal fails to explain how the information requested from the ESD is critical

or even relevant to her ability to propound timely discovery requests. Indeed, Ms. Akmal

ultimately submitted her discovery requests without the benefit of this information. Were

the ESD records critical, Ms. Akmal could have sought an extension of the discovery

deadline on February 13, 2006, when she learned that the ESD would not provide her

with the records until March 5, 2007. Moreover, even assuming that the ESD’s delay is

somehow pertinent, its slow response is, in large part, the result of Ms. Akmal’s own

delay in requesting the information. As noted above, Defendants requested the ESD

records from Ms. Akmal as early as September 29, 2006. Despite sending Ms. Akmal a

completed “self-request” form, she failed to obtain and provide Defendants with the

information until December 28, 2006. 

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Defendants also object to the substance of Ms. Akmal’s discovery requests as they are

burdensome and seek largely irrelevant information. Although the relevance of Ms. Akmal’s requests is not

currently before the court, it notes that at least two of the requests appear to seek information from

Defendants that is wholly irrelevant to the claims at issue. For instance, Ms. Akmal’s interrogatories query

whether each Defendant “has any ownership interest in real property” (Interrogatory No. 9) and ask for a

legal description of the size, address, ownership interest, and improvements on each parcel of real property

(Interrogatory No. 10). Foster Decl., ¶ 17, Ex. K. Defendants are obligated only to provide information

that is relevant to Ms. Akmal’s claims. See Fed. R. Civ. P. 26(b). 

ORDER – 5

On these facts, Ms. Akmal’s showing of diligence is marginal at best. Even so, to

preclude Ms. Akmal from obtaining the discovery she seeks because her request was

served just three days late would produce a harsh result. Accordingly, the court finds that

a modest modification of the scheduling order is appropriate. The court extends the

discovery deadline to April 30, 2007 to the following limited extent: Defendants shall

respond to Ms. Akmal’s written discovery requests by this date.3

 

The court is mindful of Defendants’ contention that they should not be penalized

by decreasing the allotted time for their preparation of an anticipated summary judgment

motion because of Ms. Akmal’s failure to submit timely requests. Accordingly, the court

extends the deadline for the filing of dispositive motions by seven days, to April 25,

2007. Plaintiff’s time to respond to a dispositive motion shall be shortened by seven

days – i.e., Plaintiff’s response, if any, will be due two Mondays before the noting date. 

See Local Rules W.D. Wash. CR 7(d) (setting response due date one Monday before the

noting date). The remaining deadlines in the scheduling order shall remain unchanged.

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ORDER – 6

IV. CONCLUSION

For the reasons stated above, the court GRANTS Ms. Akmal’s motion for

modification of the court’s scheduling order (Dkt. # 26).

Dated this 20th day of March, 2007.

A JAMES L. ROBART

United States District Judge

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