United States District Court, D. Utah, Central Division
DANIELLE SWASEY; D.S., BY AND THROUGH HER GUARDIAN AD LITEM, DANIELLE SWASEY; DANTE KETCHENS, D.K., BY AND THROUGH HIS GUARDIAN AD LITEM, DANTE KETCHENS, Plaintiffs,
WEST VALLEY CITY; SHAWN COWLEY; KEVIN SALMON; SEAN MCCARTHY; JOHN COYLE; THAYLE “BUZZ” NIELSEN; and DOES 1-10, Defendants.
C. Wells Magistrate Judge
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR
Nuffer United States District Judge
Amended Complaint contains five causes of
action. Plaintiffs' Fifth Cause of Action is a
claim for intentional infliction of emotional distress
against all defendants.Defendant John Coyle, not joined by any
other defendant, moves for summary judgment on
Plaintiffs' Fifth Cause of Action
(“Motion”). Plaintiffs oppose the Motion
(“Opposition”). Mr. Coyle filed a reply in
support of the Motion (“Reply”). For the reasons
below, the Motion is DENIED.
MOTION IS UNTIMELY
reaching the merits of the Motion, timeliness must be
addressed. Mr. Coyle acknowledges that “the dispositive
motions deadline . . . was March 15, 2016” but argues
that his Motion, which was filed on November 11, 2016 should
be accepted because “due to stipulations between the
parties, . . . fact discovery continued well beyond [March
15, 2016].” Mr. Coyle argues that “the deadline
in the Scheduling Order is not controlling and that this
Motion is timely given the amorphous nature of the discovery
cut-off in this case.” Mr. Coyle explains that
depositions occurred “as late as July 2016” even
though the Scheduling Order “set the close of fact
discovery for December 1, 2015.” Therefore, Mr.
Coyle argues, “[i]t is clear from their conduct since
adopting the Scheduling Order that the parties, and the
Court, do not consider the [Scheduling] Order to be
Coyle is incorrect. The Motion is untimely because it was
filed nearly eight months after the deadline and there is no
order from the court modifying the deadline.
Rule of Civil Procedure 16 provides that “[a] schedule
may be modified only for good cause and with the
judge's consent.” To establish good cause
for modifying a scheduling order, “the moving party
must show that it has been diligent in attempting to meet the
deadlines, which means it must provide an adequate
explanation for any delay.” Mr. Coyle has not made a
motion nor has he explained how he has been diligent in
attempting to meet the dispositive motion deadline. The only
explanation about the delay is that the parties stipulated to
extend fact discovery. But a stipulation to extend fact
discovery does not automatically extend the
dispositive motion deadline. Those are two
different deadlines in the scheduling order. Further, as
Plaintiffs point out,  the most recent information used in
the Motion is from May 2016 and there is no explanation why
Mr. Coyle's Motion was filed six months after that date.
Coyle also has not sought “the judge's
consent” by filing a motion to extend the
dispositive motion deadline or a motion for leave to file the
Motion past the deadline. Mr. Coyle says he filed late
because “[i]n May 2016, the Court modified the
Scheduling Order to extend expert discovery deadlines into
August, even though the Scheduling Order also had trial set
to begin on August 15, 2016.” But the dispositive
motion deadline was never modified. Also, Mr. Coyle is
incorrect that the trial was set to begin on August 15, 2016.
The May 20, 2016 Notice from the court vacated the dates for
the final pre-trial conference and trial.
• Mr. Coyle points to no authority that allowed him to
file the Motion nearly eight months after the dispositive
• Other deadlines were extended, but the dispositive
motion deadline never was.
• Mr. Coyle never filed a motion to extend the
dispositive motion deadline or sought leave to file the
Motion past the deadline.
• Even after the Opposition was filed, which plainly
opposed Mr. Coyle's Motion on the basis of timeliness,
Mr. Coyle did not move to modify the dispositive motion
Mr. Coyle has failed to establish “good cause”
under Rule 16. Additionally, Rule 6(b) does not apply because
the deadline has already expired and Mr. Coyle never filed
a motion to extend the deadline.
Coyle argues that the late filing of the Motion does not
prejudice the parties and should be allowed. But Mr. Coyle
cites no authority. Instead, he states incorrectly that a
motion for judgment on the pleadings will be briefed on the
same schedule as the Motion. Mr. Coyle provides no citation
to the motion for judgment on the pleadings to ...