United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
COLLINS, UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion to Reopen and Extend Motion for
Sanctions / Motion to Dismiss Response Deadline (DE 38) filed
by Plaintiff Theresa Heggen on December 26, 2017, asking that
the Court reopen the discovery period and extend the time for
her to respond to the Motion for Sanctions, Including
Dismissal of Lawsuit With Prejudice (DE 35) filed by
Defendant Maxim Healthcare Services, Inc.
(“Maxim”), on December 12, 2017. Maxim filed a
response in opposition to the motion to reopen discovery on
December 29, 2017 (DE 39), and Heggen filed a reply on
January 4, 2018 (DE 40). Thus, the motion is now ripe for
following reasons, the motion to reopen discovery will be
filed this lawsuit against Maxim, her former employer, on
December 29, 2016, advancing claims of sexual harassment and
unlawful retaliation. (DE 1). On February 21, 2017, the
parties filed their Report of Parties' Planning Meeting,
which established a deadline of September 29, 2017, for the
completion of all discovery. (DE 11). At the preliminary
pretrial conference on March 9, 2017, the Court approved and
adopted the parties' agreed discovery deadline of
September 29, 2017, as an order of the Court. (DE 15).
August 4, 2017, the Court approved and adopted Maxim's
motion for the entry of a proposed protective order agreed to
by the parties. (DE 17; DE 18). On October 12, 2017, the
Court observed that the discovery period had concluded. (DE
20). The next day, the District Judge set a dispositive
motions deadline of December 12, 2017. (DE 21).
October 18, 2017, Maxim filed a motion for a telephonic
status conference, seeking to discuss a discovery dispute
concerning Heggen's alleged untruthfulness at her
deposition and her purported destruction of evidence from her
cell phone. (DE 22). One week later, Heggen's counsel
filed a motion to withdraw their representation of Heggen in
this case. (DE 27). On October 31, 2017, at a status
conference and a hearing on the motion, the Court granted
Heggen's counsel's motion to withdraw and then stayed
the case for 30 days to allow Heggen time to retain new
counsel. (DE 29). On November 22, 2017, new counsel filed an
appearance on Heggen's behalf. (DE 30).
December 12, 2017, Maxim filed a motion for sanctions based
on Heggen's alleged discovery misconduct with respect to
her deposition and her cell phone recordings. (DE 35). On
December 26, 2017, Heggen filed the instant motion, asking
that the Court reopen discovery and extend the time for her
to file a response to the motion for sanctions. (DE 35).
decision to reopen discovery rests within the broad
discretion of the Court. See Ty, Inc. v. Publ'ns
Int'l, Ltd., 99 C 5565, 2003 WL 21294667, at *6
(N.D. Ill. June 4, 2003); Reytblatt v. Nuclear Regulatory
Comm'n, No. 86 C 385, 1991 WL 140920, at *2 (N.D.
Ill. July 22, 1991). Under Federal Rule of Civil Procedure
16(b)(4), “[a] schedule may be modified only for good
cause and with the judge's consent.” The good cause
standard focuses on the diligence of the party seeking the
extension. Alioto v. Town of Lisbon, 651 F.3d 715,
720 (7th Cir. 2011); Smith v. Howe Military Sch.,
No. 3:96-CV-790RM, 1997 WL 662506, at *1 (N.D. Ind. Oct. 20,
1997). To demonstrate good cause, a party must show that
despite its diligence, the time table could not reasonably
have been met. Smith, 1997 WL 662506, at *1.
instant motion, Heggen asks that the Court reopen the
discovery period, which closed three months earlier on
September 29, 2017. Heggen, however, does not address the
“good cause” standard in her motion, simply
stating that her new counsel had just appeared on November
22, 2017. (DE 38 ¶ 2). She states that the motion for
sanctions is fairly complex and revolves around the
disappearance of certain recordings, that new counsel needs
additional time to familiarize himself with the file, and
that “minimal discovery was completed by prior
counsel.” (DE 38 ¶¶ 3-5).
however, does not offer any reasons why her prior counsel
purportedly completed just minimal discovery. See McCann
v. Cullinan, No. 11-cv-50125, 2015 WL 4254226, at *32
(N.D. Ill. July 14, 2015) (“[T]he court's primary
inquiry is the diligence of the party seeking the
extension.” (citing Alioto, 651 F.3d at 720)).
Nor do Heggen's disagreements or lack of communication
with her prior counsel constitute good cause to reopen the
discovery period. See Pretzel & Stouffer, Chartered
v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir.
1994) (“Lack of communication between attorney and
client [is] not a basis for showing of good cause.”
(citation omitted)); Katsiavelos v. Fed. Reserve Bank of
Chi., No. 93 C 7724, 1995 WL 398901, at *3 (N.D. Ill.
June 30, 1995) (noting that a plaintiff's disagreements
or lack of communication with her attorney did not justify an
additional extension of a discovery deadline).
change in counsel also does not constitute good cause to
reopen the discovery period. “There is no principle
that each new attorney for a litigant must have an
independent opportunity to conduct discovery.”
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159
(7th Cir. 1996). The parties had almost seven months to
complete discovery in this case, which is sufficient time.
See id. (“The seven-month discovery period was
ample[.]”). “Shortcomings in counsel's work
come to rest with the party represented.” Id.
(citation omitted). Thus, prior counsel's purported
performance of only minimal discovery does not constitute
good cause to reopen discovery under Rule 16(b), ...