Campbell v. Olson Associates PC et al

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
LINDSEY CAMPBELL,
Plaintiff,
v.
OLSON ASSOCIATES P.C. d/b/a OLSON
SHANER; RANDOLPH CHIP SHANER
JR.; ROB KOLKMAN; CONSTABLE
KOLKMAN LLC; N.A.R., INC.; and JOHN
DOES 1-5,
Defendants.
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
REOPEN DISCOVERY AND EXTEND
DEADLINE TO FILE DISPOSITIVE
MOTIONS (DOC. NO. 65)
Case No. 2:23-cv-00914
District Judge David Barlow
Magistrate Judge Daphne A. Oberg
Rob Kolkman and Constable Kolkman LLC (the Constable Defendants) move to
reopen discovery for forty-five days to depose Lindsey Campbell. They also seek to
extend the deadline for filing dispositive motions to fourteen days after that deposition
occurs.1 Ms. Campbell opposes the motion.2 Because the Constable Defendants were
not diligent in pursuing Ms. Campbell’s deposition either during the fact discovery period
or after fact discovery closed, the motion is denied.
1 (Mot. to Reopen Disc. & Extend Deadline to File Dispositive Mots. (Mot.), Doc.
No. 65.)
2 (Opp’n to Mot. (Opp’n), Doc. No. 68.)
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BACKGROUND
Ms. Campbell brought this case in December 2023, claiming the Constable
Defendants and others committed fraud, violated the Fair Debt Collection Practices Act3
(FDCPA), and violated her civil rights.4 In September 2024, the court issued a
scheduling order, under which fact discovery closed April 30, 2025.5
On March 17, 2025, counsel for another defendant emailed Ms. Campbell’s
counsel to schedule her deposition and copied the Constable Defendants’ prior
counsel.6 Ms. Campbell’s counsel responded the following week, providing several
available dates—April 21 through 23, and April 28 through May 2.7 Counsel also noted
Ms. Campbell was amenable to holding the deposition a few days after the discovery
cut-off.8
The Constable Defendants then hired new counsel, who appeared in this case
for the first time on April 4, 2025.9 Two weeks later, the parties filed a joint status
3 15 U.S.C. §§ 1692–1692p.
4 (See Compl., Doc. No. 2; Am. Compl. ¶¶ 166–240, Doc. No. 10.)
5 (Scheduling Order 3, Doc. No. 36.)
6 (Ex. P-4 to Opp’n 2, Doc. No. 68-4 (March 17, 2025, email by Ronald Price, counsel
for Defendant Olson Associates PC, copying Chris Hill, David Garner, and Zachary
Lindley, the Constable Defendants’ prior counsel).)
7 (Id. at 1.)
8 (Ex. P-5 to Opp’n 1, Doc. No. 68-5.)
9 (Substitution of Counsel for Defs. Rob Kolkman & Constable Kolkman, LLC, Doc. No.
43 (providing notice that Mark Nickel and J. Tyler Martin substitute in place of David
Gardner and Chris Hill as counsel for the Constable Defendants).)
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report.10 According to the report, the parties were “attempting to schedule depositions
but had difficulty coordinating with Constable Defendants’ prior counsel.”11 The parties
noted they would likely “need to hold depositions in May after the discovery cut-off.”12
No party moved to extend the discovery cut-off, and the defendants did not take Ms.
Campbell’s deposition on the April or May dates she provided.
At the end of May 2025, counsel for the other defendants again emailed Ms.
Campbell’s counsel about scheduling her deposition sometime in June.13 The senders
copied the Constable Defendants’ new counsel on the email.14 Ms. Campbell’s counsel
responded, agreeing to check her availability, but noting the Constable Defendants still
needed to provide deposition dates.15 The following month, Ms. Campbell’s counsel
emailed defense counsel, including the Constable Defendants’ new counsel.16 She
provided more available dates for her deposition—July 11, 14, and 21.17 But the
defendants did not depose her on any of these dates.
10 (April 17, 2025 Joint Status Report (April Status Report), Doc. No. 46.)
11 (Id.)
12 (Id.)
13 (Ex. P-10 to Opp’n, Doc. No. 68-10 (May 28, 2025, email from Ronald Price).)
14 (Id. (copying Mark Nickel, Ryan Anderson, and Tyler Martin).)
15 (Id.)
16 (Ex. P-11 to Opp’n, Doc. No. 68-11.)
17 (Id.)
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At the end of July, the parties filed another status report.18 The parties again
explained they were “attempting to schedule depositions but had difficulty coordinating
with Constable Defendants’ prior counsel” and would likely “need to hold depositions in
July and August after the discovery cut-off.”19 But no party moved to reopen discovery.
And, again, the Constable Defendants did not depose Ms. Campbell in either July or
August.
On September 16, 2025, the Constable Defendants’ new counsel contacted Ms.
Campbell’s counsel, requesting deposition dates for nine plaintiffs in other FDCPA
cases pending against them.20 But counsel did not include Ms. Campbell as one of
those nine deponents.21 A month later, the Constable Defendants filed a motion to
extend the dispositive motions deadline—on the deadline itself (October 17).22
Although the Constable Defendants captioned the motion as “stipulated,” this is a
18 (July 31, 2025 Joint Status Report (July Status Report), Doc. No. 51.)
19 (Id.) It is unclear whether the parties’ July status report refers to Ms. Campbell’s
deposition and the fact discovery deadline (April 30, 2025) or expert depositions and the
expert discovery deadline (July 31, 2025). The parties filed the report in response an
order to comply with the discovery management order, which required “a joint status
report regarding any remaining expert discovery.” (See Doc. Nos. 49 & 50 (referencing
Disc. Mgmt. Order ¶ 2, Doc. No. 35).)
20 (Ex. P-16 to Opp’n, Doc. No. 68-16 (September 16, 2025, email by Blake Hill
regarding “the various cases against NAR, Olson Associates, etc.” requesting
depositions for “1. Heather Cox, 2. Charles Young, 3. Tara Peretto, 4. Kathryn Mitchell,
5. Julie Berry, 6. Heidi Cordero, 7. Elizabeth Hernandez, 8. Jason Besendorfer,
9. Kendall Thomas.”).)
21 (Id.)
22 (Defs.’ Stipulated Mot. for Extension of Deadline to File Dispositive Mots., Doc.
No. 58.)
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mischaracterization. Only the defendants stipulated to the motion. Ms. Campbell did
not. In their motion, the Constable Defendants asserted an extension of the dispositive
motions deadline was necessary “to allow the depositions that had been agreed to by all
parties” in the July status report.23 The defendants claimed they had requested dates
for Ms. Campbell’s deposition on September 17, but her counsel was nonresponsive.24
They also represented that Ms. Cambell’s deposition was “scheduled to occur” on
November 6.25
Ms. Campbell opposed the Constable Defendants’ motion and moved for a
protective order, denying she agreed to a November 6 deposition.26 Ms. Campbell also
disputed that the Constable Defendants had asked to depose her on September 17.
And she asserted the parties did not engage in any communications to schedule
depositions in this case after July 30.27
The court denied the Constable Defendants’ motion to extend the dispositive
motions deadline and granted Ms. Campbell’s motion for a protective order, noting that
23 (Id. at 2.)
24 (Id.) The motion presented no evidence to support this allegation.
25 (Id.)
26 (Pl.’s Mem. in Opp’n to Defs.’ Mot. for Extension of Deadline to File Dispositive Mots.,
Doc. No. 62; Pl.’s Mot. for Protective Order, Doc. No. 64.) Ms. Campbell submitted an
email supporting her claim that she did not agree to a deposition on November 6. (Ex.
P-17 to Opp’n, Doc. No. 68-17.)
27 (Pl.’s Mem. in Opp’n to Defs.’ Mot. for Extension of Deadline to File Dispositive
Mots. 3, Doc. No. 62.)
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fact discovery closed on April 30 and no party had moved to reopen discovery.28 But
the court permitted the defendants to file a motion to reopen discovery and modify the
schedule (including a renewed request to extend the dispositive motions deadline).29
The court explained any such motion should address the standards set forth in Smith v.
United States.30 The Constable Defendants’ present motion followed.31
In their motion, the Constable Defendants assert “[a]ll [n]amed Defendants have
sought dates for [a] deposition of [Ms.] Campbell on at least six separate occasions,
including a demand for the deposition of [Ms.] Campbell and 8 others on September
17–18, 2025,” but Ms. Campbell’s counsel had not “provided a single date.”32
Problematically, however, the Constable Defendants do not support these assertions
with evidence.
In response, Ms. Campbell again disputes that the Constable Defendants made
efforts to depose her before filing their October 17 motion.33 As Ms. Campbell points
out, only the other defendants’ counsel (not the Constable Defendants’ counsel)
28 (See Docket Text Orders, Doc. No. 63 & 67.)
29 (Docket Text Order, Doc. No. 63.)
30 834 F.2d 166 (10th Cir. 1987).
31 (Mot., Doc. No. 65.) No other defendants joined the Constable Defendants’ motion to
reopen discovery and modify the schedule.
32 (Id. at 2.)
33 (Opp’n 7–8, Doc. No. 68.)
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requested deposition dates from her—and she responded by providing multiple dates.34
Ms. Campbell also notes that the Constable Defendants did not include a request to
depose her in their September 16 email requesting deposition dates for nine other
plaintiffs.35 She supports her assertions with exhibits attached to her response,
including the September 16 email and other correspondence between counsel.36
The Constable Defendants filed a reply,37 but still neglected to present any
evidence supporting their assertion that they requested to depose Ms. Campbell on
September 17–18, 2025. Indeed, they presented no evidence showing they asked to
depose Ms. Campbell at any time before filing their motion to extend the dispositive
motions deadline on October 17—nearly six months after fact discovery closed.
34 (Id. (citing Exs. P-1, P-2, & P-4 to Opp’n, Doc. Nos. 68-1, 68-2, & 68-4).)
35 (Id. at 2 (citing Ex. P-16 to Opp’n, Doc. No. 68-16).)
36 (See Ex. P-16 to Opp’n, Doc. No. 68-16 (email by Blake Hill to Ms. Campbell’s
counsel dated September 16, 2025, regarding “the various cases against NAR, Olson
Associates, etc.” requesting depositions of nine listed individuals (not including Ms.
Campbell)); see also Ex. P-1 to Opp’n, Doc. No. 68-1 (emails from March 2025 between
counsel for Olson Associates PC, and Ms. Campbell’s counsel discussing deposition
availability); Ex. P-2 to Opp’n, Doc. No. 68-2 (same); Ex. P-4 to Opp’n, Doc. No. 68-4
(same, plus a March 25 email by Ms. Campbell’s counsel providing available dates in
April and May for her deposition); Ex. P-10 to Opp’n, Doc. No. 68-10 (email from
counsel for Olson Associates PC, dated May 28, 2025, discussing scheduling Ms.
Campbell’s deposition sometime in June); Ex. P-11 to Opp’n, Doc. No. 68-11 (email
from Ms. Campbell’s counsel providing available dates in July for her deposition).)
37 (Reply in Supp. of Mot. (Reply), Doc. No. 70.)
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ANALYSIS
Under Rule 16(b)(4) of the Federal Rules of Civil Procedure, a scheduling order
“may be modified only for good cause and with the judge’s consent.”38 “Demonstrating
good cause under the rule requires the moving party to show that it has been diligent in
attempting to meet the deadlines, which means it must provide an adequate explanation
for any delay.”39 The factors (commonly known as the Smith factors)40 courts consider
in determining whether good cause exists to reopen discovery include:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether
the non-moving party would be prejudiced, 4) whether the moving party was
diligent in obtaining discovery within the guidelines established by the court,
5) the foreseeability of the need for additional discovery in light of the time
allowed for discovery by the district court, and 6) the likelihood that the
discovery will lead to relevant evidence.41
Overall, the Smith factors weigh against reopening discovery. Most significantly,
the Constable Defendants were not diligent in obtaining Ms. Campbell’s deposition
despite the fact that their need for it was foreseeable. This lack of diligence and the
foreseeability of Ms. Campbell’s deposition—coupled with the opposition to the request
to reopen discovery and the prejudice to Ms. Campbell—outweigh the other Smith
factors.
38 Fed. R. Civ. P. 16(b)(4).
39 Strope v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009) (unpublished) (citation
omitted).
40 See Morrison v. Safeco Ins. Co. of Am., No. 1:23-cv-00360, 2025 U.S. Dist. LEXIS
186021, at *11 (D. Utah Sept. 22, 2025) (unpublished).
41 Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).
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Diligence. First, and most significantly, the Constable Defendants showed a
lack of diligence in deposing Ms. Campell. The most important factor in determining
whether to reopen discovery is the moving party’s diligence in obtaining the requested
discovery.42 The Constable Defendants argue they have been diligent because their
new counsel joined the case near the end of discovery and have since worked to
schedule Ms. Campbell’s deposition.43 As noted above, without presenting evidence,
the Constable Defendants claim they sought dates for the deposition on several
occasions and asked for nine depositions, including Ms. Campbell’s, in mid-
September.44 In contrast, Ms. Campbell argues the Constable Defendants have made
42 See Candelaria v. Molina Healthcare, Inc., No. 18-725, 2019 U.S. Dist. LEXIS
163088, at *10 (D.N.M. Sept. 24, 2019) (unpublished) (collecting cases and explaining
“the weight of authority” agrees that “good cause under Rule 16(b)(4) depends primarily,
or even solely, on the diligence of the party seeking extension”); see also Graves v.
Wirta, No. 20-cv-03595, 2022 U.S. Dist. LEXIS 82765, at *24 (D. Colo. May 6, 2022)
(unpublished) (explaining lack of diligence is the “most important” Smith factor); Kone v.
Tate, No. 20-1080, 2021 U.S. Dist. LEXIS 62155, at *9 (D. Kan. Mar. 31, 2021)
(unpublished) (explaining “diligence—the fourth Smith factor and the crux of a good-
cause determination—remains the most important factor”); City of Las Cruces v. United
States, No. 17-809, 2021 U.S. Dist. LEXIS 53295, at *6 (D.N.M. Mar. 22, 2021)
(unpublished) (“As reopening discovery modifies a scheduling order and thus requires a
showing of ‘good cause,’ the most important of these factors is the moving party’s
diligence.”).
43 (Mot., Doc. No. 65 at 2.) In reply, the Constable Defendants represent that,
“throughout late summer and fall,” the parties agreed to complete Ms. Campbell’s
deposition within “8 to 10 weeks.” (Reply, Doc. No. 70 at 5.) But the Constable
Defendants provide no evidence of this agreement.
44 (Mot., Doc. No. 65 at 2 (stating defendants have sought deposition dates for Ms.
Campbell “on at least six separate occasions” and sent a demand for her deposition
“and 8 others on September 17-18, 2025”); Reply, Doc. No. 70 at 5–6 (stating
“Defendants reached out to Plaintiff’s counsel on numerous occasions” and “on
September 17, 2025, . . . counsel e-mailed Plaintiff’s counsel directly to demand that
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no effort to depose her until now. And all the defendants ignored the April, May, and
July dates of availability she provided for her deposition.45
The record supports a finding of lack of diligence by the Constable Defendants.
The Constable Defendants did not depose Ms. Campbell when she offered dates for
late April and early May.46 After new counsel joined in early April, they did not move to
extend the discovery deadline. And although Ms. Campbell offered more deposition
dates for July,47 the Constable Defendants again failed to depose her.
While the Constable Defendants claim they sought to depose Ms. Campbell in
mid-September, along with numerous plaintiffs from other cases, they provided no
evidence supporting this claim. And Ms. Campbell submitted an email exchange
showing she was not listed in the Constable Defendants’ mid-September deposition
demand.48 In view of this, the fact that the parties discussed and agreed to pursue
depositions after discovery closed does not advance the Constable Defendants’
deposition dates be provided for [Ms.] Campbell and eight other deponents”).) The
Constable Defendants provide no evidence to support these factual assertions.
45 (Opp’n 7–8, Doc. No. 68 (citing Exs. P-1, P-2, P-4, & P-11 to Opp’n, Doc. Nos. 68-1,
68-2, 68-4, & 68-11).)
46 (Ex. P-4 to Opp’n 1, Doc. No. 68-4 (offering April 21 through 23 or April 28 through
May 2 for her deposition); Ex. P-5 to Opp’n 1, Doc. No. 68-5 (same).) The parties’
status reports suggest a lack of effort by prior counsel. (April Status Report, Doc.
No. 46 (indicating attempts to schedule depositions failed due to difficulty coordinating
with the Constable Defendants’ prior counsel); July Status Report, Doc. No. 51 (same).)
47 (Ex. P-11 to Opp’n 1, Doc. No. 68-11 (“[M]y client and I are available July 11th, 14th,
and 21st.”).)
48 (See Ex. P-16 to Opp’n 1, Doc. No. 68-16.)
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argument. The evidence presented with the briefs shows the Constable Defendants
were not diligent in attempting to obtain Ms. Campbell’s deposition until, at best, five
months after fact discovery closed.49 And problematically, the Constable Defendants
offer no explanation for their failure to diligently pursue Ms. Campbell’s deposition in a
timely way.50 Smith’s diligence factor—the most important factor—weighs heavily
against reopening discovery.
Foreseeability. So, too, does the foreseeability of the need for Ms. Campbell’s
deposition, Smith’s fifth factor. As the Constable Defendants acknowledge, all parties
foresaw the need for additional depositions at the time their new counsel appeared in
this case.51 And they recognize Ms. Campbell’s claims “rely heavily upon her direct
49 (See Defs.’ Stipulated Mot. for Extension of Deadline to File Dispositive Mots. 1–2,
Doc. No. 58; see also Ex. P-17 to Opp’n, Doc. No. 68-17 (email from Ms. Campbell’s
counsel to the Constable Defendants’ counsel, dated October 24, 2025, explaining he
has received no deposition notice “nor have you endeavored to coordinate the
deposition at a mutually convenient time”).)
50 See, e.g., SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990) (holding
a district court did not abuse its discretion in denying a motion to reopen discovery,
where the moving parties did not diligently use the discovery period provided and had
focused their efforts on nonparty entities); Tracy v. Youth Health Assocs., No. 1:20-cv-
00088, 2021 U.S. Dist. LEXIS 110051, at *4 (D. Utah June 9, 2021) (unpublished)
(finding party’s unexplained failure to seek information it knew was relevant before the
close of discovery supported not reopening discovery); see also Strope, 315 F. App’x at
61 (explaining the moving party “must provide an adequate explanation for any delay”);
Stevenson v. Salt Lake Cnty., No. 2:12-cv-44, 2014 U.S. Dist. LEXIS 63253, at *2 (D.
Utah May 7, 2014) (unpublished) (noting the party seeking an extension must show
some “reasonable basis for not meeting the deadline”).
51 (Mot., Doc. No. 65 at 2; Reply, Doc. No. 70 at 7.)
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personal allegations of events.”52 As the plaintiff, Ms. Campbell is the main witness in
the case, meaning the need for her deposition was apparent from the beginning.53 Like
the Constable Defendants’ lack of diligence, the foreseeable need for Ms. Campbell’s
deposition weighs heavily against reopening discovery.
Whether the Request is Opposed. The second factor—whether the request is
opposed—also weighs against reopening discovery. The Constable Defendants
suggest their request to reopen discovery is unopposed because Ms. Campbell agreed
to being deposed in July.54 But where Ms. Campbell clearly opposes the Constable
Defendants’ motion, this factor weighs against reopening discovery.55
Prejudice. With regard to prejudice, the third Smith factor, the Constable
Defendants argue reopening discovery would prevent prejudice to them by honoring
52 (Mot., Doc. No. 65 at 2.)
53 See, e.g., Moore v. Peters, 341 F.R.D. 463, 473 (W.D.N.Y. 2022) (finding
foreseeability of the need for additional discovery weighed against reopening discovery
to depose the plaintiff, because the plaintiff “was not an unknown witness,” he was “a
main witness” and, as such, the importance of his deposition was apparent at the outset
of the case).
54 (Mot., Doc. No. 65 at 2; Reply, Doc. No. 70 at 4.) The Constable Defendants suggest
the parties’ July status report demonstrates this agreement. But as noted, the July
status report only generally references “additional depositions” and the “discovery cut-
off.” (July Status Report, Doc. No. 51.) This does not reveal an agreement to Ms.
Campbell’s deposition. In fact, the report seems to refer to expert depositions and
deadlines, given that the parties filed it in response to an order to comply with the
discovery management order’s requirement to “file a joint status report regarding any
remaining expert discovery.” (See Doc. Nos. 49 & 50 (referencing Disc. Mgmt. Order
¶ 2, Doc. No. 35).)
55 (Opp’n 4, Doc. No. 68.)
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Ms. Campbell’s agreement to be deposed in July.56 But under Smith, the court
considers “whether the non-moving party would be prejudiced”—not the moving party.57
Ms. Campbell contends she would be irreparably prejudiced if discovery were reopened
because: (1) the Constable Defendants would have an unfair tactical advantage after
seeing her litigation strategy in her motion for partial summary judgment; (2) she would
incur additional costs and work from restructuring her strategy; and (3) delays may
require her to retain new counsel, as her current counsel has two approaching
surgeries.58
Although Ms. Campbell overstates the degree of prejudice to her if discovery is
reopened, she would suffer prejudice. Because Ms. Campbell only moved for summary
judgment on her FDCPA claim, any tactical advantage to the Constable Defendants or
need for Ms. Campbell to restructure her strategy would be limited to that claim. And
Ms. Campbell has not sufficiently linked her counsel’s approaching surgeries to her
claim of prejudice.59 That said, there is no question reopening discovery would cause
some prejudice to Ms. Campbell. Ms. Campbell timely filed a summary judgment
motion based on the record developed during discovery. Permitting the Constable
Defendants to depose Ms. Campbell after she filed her motion would let them tailor the
56 (Mot., Doc. No. 65 at 2; Reply, Doc. No. 70 at 4–5.)
57 Smith, 834 F.2d at 169 (emphasis added).
58 (Opp’n 4–7, Doc. No. 68.)
59 Ms. Campbell provides no indication of when those surgeries are or how long counsel
would need to recover.
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deposition to respond directly to the strategy revealed in her motion—contrary to the
ordinary sequence of litigation established in the scheduling order. It would also delay
the case. Considered in totality, this third Smith factor weighs against reopening
discovery.
Imminence of Trial and Whether the Deposition Will Lead to Relevant
Evidence. Finally, although the first and last Smith factors favor reopening discovery,
they do not outweigh the others. Trial is not imminent. The court has yet to set a trial
date. And because Ms. Campbell is the plaintiff, her deposition would undoubtedly lead
to relevant evidence. (As discussed above, for this same reason, the need for Ms.
Campbell’s deposition was foreseeable and the Constable Defendants should have
diligently sought it sooner.) But the fact that trial is not imminent and Ms. Campbell’s
deposition would lead to relevant evidence does not outweigh the Constable
Defendants’ lack of diligence and the clear foreseeability of the need for her deposition.
Overall, the Smith factors weigh against reopening discovery.
* * *
In sum, the Constable Defendants fail to demonstrate good cause to reopen
discovery and modify the schedule. The Constable Defendants’ lack of diligence and
the foreseeable need for Ms. Campbell’s deposition strongly outweigh the fact that trial
is not imminent and that her deposition would provide relevant evidence. For these
reasons, the motion to reopen discovery and extend the deadline for dispositive motions
until after Ms. Campbell’s deposition is denied. But where the Constable Defendants
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moved to extend the dispositive motions deadline before it expired,60 the court grants a
limited extension of this deadline as set forth below.
CONCLUSION
The Constable Defendants’ motion61 to reopen discovery to allow a deposition of
Ms. Campbell, and to extend the dispositive motions deadline until after the deposition,
is denied. The court orders as follows:
1. 	The Constable Defendants’ deadline to file dispositive motions is extended
to December 15, 2025.
2. 	All other deadlines in the Scheduling Order62 remain unchanged.
DATED this 1st day of December, 2025.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
60 As described above, the Constable Defendants filed their prior motion for extension
before the deadline expired, and they promptly filed this renewed motion as permitted
by the court.
61 (Doc. No. 65.)
62 (Doc. No. 36.)
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