United States v. Horizon Products International, Inc.

Slip Op. 14-147
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Leo M. Gordon, Judge
Court No. 14-00104
MEMORANDUM and ORDER
[Defendant’s motion to amend scheduling order out of time denied.]
Dated: December 18, 2014
Daniel B. Volk, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice of Washington, DC for Plaintiff United States. 	With him on the
brief were Joyce R. Branda, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, Claudia Burke, Assistant Director. 	Of counsel on the brief was Claire J.
Lemme, Attorney, Office of Associate Chief Counsel for U.S. Customs and Border
Protection.
Peter S. Herrick, Peter S. Herrick PA of St. Petersburg, Florida for Defendant
Horizon Products International, Inc.
Gordon, Judge: Before the court is Defendant Horizon Products International,
Inc.’s (“Horizon”) motion to amend the Scheduling Order out of time. 	Horizon also
seeks to extend the deadline for Plaintiff United States (“Government”) to respond to
Horizon’s 	discovery 	requests 	and 	all 	subsequent 	deadlines, 	including 	for 	filing
dispositive motions or requesting a trial, by 90 days respectively. 	The Government
opposes Horizon’s motion.
UNITED STATES,
Plaintiff,
v.
HORIZON PRODUCTS INTERNATIONAL,
INC.,
Defendant.
Case 1:14-cv-00104-LMG Document 19 Filed 12/18/14 Page 1 of 6

Court No. 14-00004 	Page 2
On June 27, 2014, the court issued an order providing, inter alia, that discovery
be completed on or before September 30, 2014, and that any motions regarding
discovery be filed on or before October 24, 2014. 	Scheduling Order, Ct. No. 14-00104,
June 27, 2014, ECF No. 10 (“Scheduling Order” or “Order”). 	From that point in June to
the end of July, there was no discovery activity between the parties other than an
exchange of initial disclosures. Pl.’s Resp. to Def.’s Mot, Ex. A, Nov. 21, 2014, ECF No.
16. Approximately one month later, on August 28, the Government served Horizon with
requests 	for 	admissions, 	interrogatories, 	and 	requests 	for 	production. 	Id. 	On
September 24, six days prior to the close of the discovery period, Horizon served its
responses to the Government’s discovery requests. Id., Ex. B. That same day, Horizon
served its first set of interrogatories and initial request for production of documents on
Plaintiff. 	Id., Ex. C. 	On October 27, three days past the deadline for the filing of any
discovery-related motions, the Government advised Horizon that it would not respond to
Horizon’s discovery requests as, in the Government’s view, those requests were not
timely served. 	Def.’s Motion to File an Amended Scheduling Order Out-of-Time, Ex. A,
Nov. 4, 2014, ECF No. 11 (“Def.’s Mot.”). 	On November 4, Horizon filed its motion to
amend the Scheduling Order. 	Thereafter, on November 21, the Government filed (1) a
motion for summary judgment in keeping with the Scheduling Order, and (2) its
response to Horizon’s motion.
USCIT Rule 16, which is comparable to Federal Rule of Civil Procedure 16,
requires the court to issue a scheduling order that governs the scope of discovery and
Case 1:14-cv-00104-LMG Document 19 Filed 12/18/14 Page 2 of 6

Court No. 14-00004 	Page 3
limits the time (including a cutoff date) for parties to complete discovery. 	See 6A
Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N.
Steinman, Federal Practice & Procedure § 1522.1 (3d ed. 2014). 	Once a schedule is
established, Rule 16(b)(4) permits a modification only upon a showing of good cause by
the party seeking the modification. 	See also USCIT R. 6(b)(1)(A). 	If the date for
completion of discovery has passed, the movant must also establish, under USCIT Rule
6(b)(1)(B), that its failure to act was due to either excusable neglect or circumstances
beyond its control.
In assessing whether Horizon has shown excusable neglect, the court considers:
(1) the danger of prejudice to the opposing party, (2) the length of the delay and its
potential impact on judicial proceedings, (3) the reason for the delay, including whether
it was within the reasonable control of the movant, and (4) whether the movant acted in
good faith. 	See Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380, 392, 395
(1993). 	It is not enough for Horizon to assert claims of “inadvertence, ignorance of the
rules, or mistakes construing the rules” to satisfy the excusable neglect standard. 	See
id. at 392.
Here, Horizon fails to show excusable neglect that would justify the late filing of
its motion to amend the Scheduling Order. 	Defendant’s counsel has not offered any
cause or excuse for missing the deadline for the completion of discovery. 	Horizon is
silent about why it was unable to file a motion for an extension of time until 35 days after
the expiration of the discovery deadline. 	The motion also does not explain Horizon’s
Case 1:14-cv-00104-LMG Document 19 Filed 12/18/14 Page 3 of 6

Court No. 14-00004 	Page 4
inaction from June 27 to September 24 in the discovery process (other than the
exchange of initial disclosures). 	Horizon has not provided the court with evidence of
communication that it had with Plaintiff’s counsel via phone, email, or letter regarding
difficulties in completing discovery prior to September 30 or the need to extend the
discovery period. Horizon simply relies on the arguments that the extension request will
not “unnecessarily delay these proceedings” and “will avoid a manifest injustice.” Def.’s
Mot. 1. Without something more, these naked assertions are insufficient to demonstrate
excusable neglect.
Even if Horizon could establish excusable neglect based simply on a lack of
prejudice to the Government, its request for an extension of time must be denied
because Horizon has also failed to demonstrate good cause warranting modification of
the Order. 	Under the good cause standard — the general standard for obtaining an
extension of time under USCIT Rules 6(b)(1)(A) and 16(b)(4) — the court’s primary
consideration is whether the moving party can demonstrate diligence. 	See High Point
Design LLC v. Buyers Direct, Inc., 730 F.3d 1301, 1319 (Fed. Cir. 2013); Paice, LLC v.
Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 WL 3385300, at *1 (D. Md. July 8,
2014); 6A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1522.2 at 2
(good cause standard not met if movant failed to act diligently).
The Government argues that Horizon’s discovery requests were untimely. 	The
court 	agrees. 	Once 	a 	discovery 	deadline 	is 	established, 	a 	party 	must 	serve
interrogatories and requests for production of documents in sufficient time to permit the
Case 1:14-cv-00104-LMG Document 19 Filed 12/18/14 Page 4 of 6

Court No. 14-00004 	Page 5
opposing party the 30-day response time under Rules 33 and 34 before the close of
discovery. See Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003). The timing
of Horizon’s service of its discovery requests left the Government with only six days to
respond, far less than is permitted under USCIT Rules 33 and 34.
Horizon’s motion offers no explanation for its inaction for the large majority of the
discovery period, nor does it provide any insight into counsel’s cognizance of the
operative times under Rules 33 and 34. A party, like Horizon, may not arrogate to itself
additional time for discovery beyond that set forth in a scheduling order by serving the
opposing party with untimely discovery requests. 	Any extension of time, even those
stipulated to under Rule 29, requires court approval. 	Hernandez v. Mario’s Auto Sales,
Inc., 617 F. Supp. 2d 488, 493 (S.D. Tex. 2009).
The 	timeline 	established 	by 	a 	scheduling 	order 	is 	binding 	and 	cannot 	be
“cavalierly disregarded by counsel without peril.” 	Gestetner Corp. v. Case Equip. Co.,
108 F.R.D. 138, 141 (D. Me. 1985). 	Horizon’s motion fails to set forth how it diligently
pursued discovery within the time allotted under the Scheduling Order. Further, Horizon
does not identify the factual information it seeks to obtain through discovery, nor does it
explain why it needs that discovery in order to defend itself in this action. 	As noted
above, Horizon offers only general statements about the impact of an extension on the
Government without any support. 	Horizon also fails to provide any evidence of
communication that it undertook with the Government to address completing discovery
in a timely manner or appropriately moving to extend the deadlines in the Scheduling
Case 1:14-cv-00104-LMG Document 19 Filed 12/18/14 Page 5 of 6

Court No. 14-00004 	Page 6
Order. 	As with excusable neglect, without something more to evidence Horizon’s
diligent pursuit to comply with the discovery deadline, a modification of the Scheduling
Order is not warranted.
Lastly, Horizon’s motion lacks any effort to identify standards against which the
court can evaluate the implications of permitting Horizon to file its motion out of time and
to extend discovery. 	By submitting a motion without explaining the cause for its failure
to file a timely motion to extend the Scheduling Order and its diligence to pursue
discovery within the prescribed period, Horizon improperly places the burden on the
court to “‘do counsel's work, [and] create the ossature for the argument,’” namely to set
forth the reasons upon which the requests for relief were based. 	Since Hardware
(Guanghou) Co. v. United States, 37 CIT ___, ___, 911 F. Supp. 2d 1362, 1381 (2013)
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). 	This the court will
not do.
Accordingly, it is hereby
ORDERED that Horizon’s motion to file an amended scheduling order out of time
is denied; and it is further
ORDERED that Horizon shall file its response to Plaintiff’s motion for summary
judgment on or before January 20, 2015.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: 	December 18, 2014
New York, New York
Case 1:14-cv-00104-LMG Document 19 Filed 12/18/14 Page 6 of 6