1Under § 205(a)(5) of the E-Government Act of 2002 and the

definition of “written opinion” adopted by the Judicial Conference

of the United States, this is a “written opinion[ ] issued by the

court” because it “sets forth a reasoned explanation for [the]

court’s decision.” It has been written, however, primarily for the

parties, to decide issues presented in this case, and not for

publication in an official reporter, and should be understood

accordingly.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ASSISTMED, INC., §

 §

Plaintiff- §

counterdefendant, §

 § Civil Action No. 3:05-CV-0880-D

VS. §

 §

CONCEPTUAL HEALTH SOLUTIONS, §

INC. and MICHAEL FLORIMBI, §

 §

Defendants- §

counterplaintiffs, §

 §

and §

 §

RAUL KIVATINETZ, §

 §

Counterdefendant. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff-counterdefendant AssistMed, Inc. (“AssistMed”) moves

the court to extend the discovery deadline in this case from June

1, 2006 to October 1, 2006. The court grants the motion in part

and denies it in part.1

I

AssistMed sues defendants-counterplaintiffs Conceptual Health

Solutions, Inc. (“CHS”) and Michael Florimbi, alleging claims for

 

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fraud and breach of contract in connection with a license agreement

under which CHS was to develop medical records software. AssistMed

alleges that the software was to be developed on the basis of the

Mayo Vocabulary Processor (“MVP”), an existing software tool or

engine. It asserts that defendants falsely represented that the

MVP engine was already developed, complete, and capable of

performing indexing, archiving, and retrieving medical data.

AssistMed, Inc. v. Conceptual Health Solutions, Inc., 2006 WL

1489422, at *1 (N.D. Tex. May 11, 2006) (Fitzwater, J.). This case

was originally filed on December 30, 2004 in California state

court. It was later removed to the United States District Court

for the Central District of California and transferred to this

court, where it was docketed on April 29, 2005. In a June 13, 2005

scheduling order, the court set June 1, 2006 as the deadline by

which the parties must complete discovery. 

AssistMed filed on May 17, 2006 a motion requesting an

unspecified “reasonable” extension of the discovery deadline. In

its reply brief it states that it seeks a four-month extension.

AssistMed maintains that it moves for this relief so that it can

obtain from third parties discovery that it says it cannot obtain

from defendants-counterplaintiffs due to the magistrate judge’s

January 11, 2006 order, in which she granted in part and denied in

part AssistMed’s December 20, 2005 motion to overrule objections,

compel discovery responses, and for extension of time to designate

 

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expert witnesses. AssistMed also seeks an extension so that it can

conduct discovery concerning LingoLogix, Inc. (“LingoLogix”), a

corporation that it contends is now merged into CHS. In a

supplement to its reply brief, AssistMed also points out that Raul

Kivatinetz (“Kivatinetz”), whom defendants have named in a first

amended counterclaim and original cross-claim filed February 17,

2006, has not yet been served, and that on June 13-14, 2006,

defendants caused original and amended summonses to be issued for

him. 

II

The standard by which the court analyzes AssistMed’s motion is

familiar in this court.

Deadlines in [scheduling] orders shall not be

modified except upon a showing of good cause.

The good cause standard focuses on the

diligence of the party seeking a modification

of the scheduling order. Mere inadvertence on

the part of the movant and the absence of

prejudice to the non-movant are insufficient

to establish good cause. Instead, the movant

must show that despite his diligence, he could

not have reasonably met the scheduling

deadline.

Price v. United Guar. Residential Ins. Co., 2005 WL 265164, at *4

(N.D. Tex. Feb. 2, 2005) (Fish, C.J.) (citations and quotation

marks omitted) (affirming order of magistrate judge that, inter

alia, denied motion to modify deadline to file motion for class

certification). Except in one respect, AssistMed has failed to

show that, despite its diligence, it could not have reasonably met

 

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2The time that elapsed while AssistMed pursued its objections

to the magistrate judge’s decision should not be excluded from the

court’s calculation of the available discovery period. The court

affirmed the magistrate judge’s order after AssistMed filed

objections that left the court largely to guess at what AssistMed

contended was the standard of review and that never once cited the

applicable abuse of discretion standard. See AssistMed, 2006 WL

1489422, at *1

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the June 1, 2006 deadline. 

AssistMed explains that it originally sought discovery that

the magistrate judge disallowed, believing it was necessary to do

so before conducting oral discovery. It also notes that it advised

the magistrate judge of its counsel’s belief that it was in the

best interests of the parties to obtain and review documents and

tangible items before conducting oral depositions. AssistMed’s

decision to conduct written discovery before commencing

depositions, however, was an intentional choice. On or after June

13, 2005, AssistMed could have undertaken the discovery that it now

seeks. Additionally, once the magistrate judge ruled against it in

response to a motion filed December 20, 2005, AssistMed still had

from shortly after January 11, 2006——the date of the magistrate

judge’s order——until June 1, 2006, to obtain the discovery.2

AssistMed has failed to show that, despite its diligence, it could

not have reasonably met the June 1, 2006 discovery deadline. And

some of the discovery that AssistMed identified in its motion has

been taken pursuant to the parties’ agreement.

The court grants AssistMed’s motion, however, to the extent

 

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that it seeks an extension so that it can conduct discovery within

the scope of Fed. R. Civ. P. 26(b)(1) that concerns the allegations

of its second amended complaint that pertain to LingoLogix. In

Parakkavetty v. Indus International, Inc., 2003 WL 22060749 (N.D.

Tex. Sept. 2, 2003) (Fitzwater, J.) (order), the court granted a

motion that in part sought to extend the discovery deadline for

four months. The trial of the case was scheduled to occur seven

months later, and the plaintiff met the good cause standard by

demonstrating that the court’s decision allowing him to expand his

claims by amended complaint warranted adjusting the discovery

deadline. Additionally, the defendant’s opposition

grounds——including its assertions of prejudice——were insufficient

to warrant denying this aspect of the plaintiff’s motion. Id. at

*1. Applying the reasoning of Parakkavetty, the court holds that

the discovery deadline should be extended to September 1, 2006 so

that the parties can conduct discovery within the scope of Rule

26(b)(1) that concerns the allegations of AssistMed’s second

amended complaint that pertain to LingoLogix.

As noted, in a supplement to its reply brief, AssistMed relies

on the status of Kivatinetz to justify an extension of the

discovery deadline. Nothing in this order precludes Kivatinetz or

another party from moving for an extension of the discovery

deadline, provided the requisite showing can be made. The court

will not, however, grant such relief based on AssistMed’s present

 

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3

AssistMed also suggests in its reply brief that a continuance

of the “other motion” deadline may be prudent due to the potential

for discovery related motions, such as motions to compel. See P.

Reply Br. 6 n.3. The court declines to enlarge that deadline at

this time because it applies broadly to any “motion not otherwise

covered by this order” and thus serves as a catch-all deadline.

Enlarging it for the intended purpose of enabling the parties to

file discovery related motions could have unintended consequences.

Accordingly, the court will not now alter the deadline for filing

motions not otherwise covered, but it will consider on a

categorical or individual motion basis whether to make exceptions

to that deadline.

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motion.

* * *

Accordingly, the court grants in part and denies in part

AssistMed’s May 17, 2006 motion to extend discovery deadline. The

court grants the motion to the extent that the discovery deadline

is enlarged from June 1, 2006 to September 1, 2006 for the limited

purpose of permitting the parties to conduct discovery within the

scope of Rule 26(b)(1) that concerns the allegations of AssistMed’s

second amended complaint that pertain to LingoLogix. The motion is

otherwise denied.3

SO ORDERED.

June 19, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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