When a party asks to do something outside of the time limits set by the scheduling order, the Court looks to whether there is "good cause" under FRCP 16(b)(4) to modify the scheduling order. Good cause requires diligence, generally meaning that the movant could not have reasonably met the deadline it's trying to move.
Last week we got two examples of diligence analyses from the Court, one that found that a party was diligent, and one that didn't. I thought it would be interesting to line them up and compare them.
"Immediately" = Good Cause
First, Judge Fallon found good cause where a plaintiff sought to depose a third-party witness after the close of fact discovery, after the …
Early case: "No, we're not amending, why are you bugging us?" Late case: "Oh no! There was a deadline to amend?"Eric Rothermel, Unsplash
Rule 16 says that a schedule "may be modified only for good cause and with the judge’s consent." This rule comes up any time a party wants to do something after a deadline set in the scheduling order, which is one of the more common litigation issues.
Parties will often, for example, let the deadline to amend the pleadings pass by, only to later realize that they want to assert an inequitable conduct defense (defendants) or wrap in a related entity (plaintiffs).
Good cause requires diligence, and in practice parties often frame the diligence discussion …
In the before time, when the green grass grew tall even in the wan Wilmington sun, all scheduling orders had two rounds of contentions, one early in the case and another near the close of fact discovery. A bit over two years ago, Judge Connolly shook things up by introducing a new form order in his cases that included only a single round of contentions early in the case and requiring "good cause" to amend.
AI-Generated, displayed with permission
And so, on this slow news day, I decided to take a look back at how often parties manage to show the requisite good cause to amend their contentions in cases assigned to Judge Connolly (many of these are decided in the first instance by a magistrate judge).
The upshot is, that most of these motions seem to succeed. DocketNavigator shows 10 such motions in cases assigned to Judge Connolly (which strikes me as low, but I'm not a soulless trawling algorithm, so what do I know?). Of those 7 have been granted, and only 3 have been denied. Normally I would put in the percentages here, but I trust you all to do the math on this one.
This brings to mind another question, which I shall raise in a further blog post on another slow day, does Judge Connolly receive fewer motions like these than our judges who don't specifically require good cause? I.e., are parties who would otherwise just file late contentions and take their shot under Pennypack factors deciding not to do so because they know they can't show good cause?!
All this and more on next weeks episode of IPDE! (Batman theme plays)
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