IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Boyd N. Boland

Civil Action No. 11-cv-02688-CMA-BNB

FLOYD’S 99 HOLDINGS, LLC, a Colorado limited liability company,

Plaintiff,

v.

JUDE’S BARBERSHOP, INC.,

JUDE’S BARBERSHOP-OTTAWA, INC.,

JUDE’S BARBERSHOP-CASCADE, INC.,

JUDE’S BARBERSHOP-KALAMAZOO, INC.,

JUDE’S BARBERSHOP-LANSING DT, INC.,

JUDE’S BARBERSHOP-LANSING, INC.,

JUDE’S BARBERSHOP-PORTAGE, INC., Michigan corporations,

JBI-COTTONWOOD, LLC,

JBI-EAST PARIS, LLC,

JBI-WEALTHY, LLC,

JBI-STANDALE, LLC,

JBI-WALLED LAKE, LLC,

JBI-OKEMOS, LLC, Michigan limited liability companies, and

THOMAS MARTIN,

Defendants.

______________________________________________________________________________

ORDER

______________________________________________________________________________

This matter arises on the following:

(1) The defendants’ Unopposed Motion to Amend Scheduling Order to Permit

Certain Depositions [Doc. # 50, filed 7/5/2012] (the “Deposition Motion”); and

(2) Defendants’ Motion to Amend Scheduling Order to Permit Certain Written

Discovery [Doc. # 51, filed 7/5/2012] (the “Written Discovery Motion”).

A scheduling order may be amended only upon a showing of good cause. Fed. R. Civ. P.

16(b)(4). In this context, good cause exists where the scheduling deadlines could not be met

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despite the parties’ diligent efforts. Colorado Visionary Academy v. Medtronic, Inc., 194 F.R.D.

684, 687 (D. Colo. 2000). 

The Deposition Motion [Doc. # 50] demonstrates good cause to extend the discovery cutoff to allow the depositions of Floyd’s pursuant to Rule 30(b)(6) and Paul and Karen O’Brien,

due to plaintiff’s counsel’s unavailability. In view of the need to extend discovery to

accommodate these depositions, good cause also exists to extend the dispositive motion

deadline.

There is no similar showing of good cause supporting the request to extend the discovery

cut-off to allow additional written discovery. The Scheduling Order set the discovery cut-off as

July 9, 2012, and required that “[a]ll written discovery must be served so that responses are due

on or before the discovery cut-off.” Scheduling Order [Doc. # 32] at Part 9. The defendants

served written discovery by United States mail on June 8, 2012. The plaintiff’s response to that

discovery was due 33 days later, on July 11, 2012. See Fed. R. Civ. P. 33(b)(2) (interrogatory

answers due within 30 days after being served); Fed. R. Civ. P. 34(b)(2)(A) (response to request

for production due 30 days after being served); Fed. R. Civ. P. 36(a)(3) (a matter is deemed

admitted unless an answer or objection is served within 30 days after being served with the

request); Fed. R. Civ. P. 6(d) (adding three days when service is made by mail). The written

discovery was untimely. 

The defendants seek to excuse their untimely written discovery, arguing that “[c]ounsel

for Defendants were under the impression that the service was timely,” Written Discovery

Motion [Doc. # 51] at ¶2; the written discovery is highly relevant, Reply [Doc. # 54] at ¶3; the

untimeliness “stems entirely from Defendants overlooking the 3 day ‘mailing period’ in

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calendaring the service date,” id. at ¶6; and “[c]onsiderable effort was made to settle the case,

which contributed to delaying discovery until the end of the period.” Id. at ¶8. At most, the

defendants argue that the untimeliness is the result of oversight. “Carelessness is not compatible

with a finding of diligence and offers no reason for a grant of relief,” however. Colorado

Visionary, 194 F.R.D. at 687.

IT IS ORDERED:

(1) The Deposition Motion [Doc. # 50] is GRANTED, and the case schedule is

modified to the following extent: 

• The discovery cut-off is extended to and including August 22, 2012, solely to

allow for the depositions of Floyd’s pursuant to Rule 30(b)(6) and Paul and Karen O’Brien; and

• The dispositive motion deadline is extended to and including September 21,

2012.

(2) The Written Discovery Motion [Doc. # 51] is DENIED.

Dated August 7, 2012.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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