United States District Court, D. Delaware
R. FALLON UNITED STATES MAGISTRATE JUDGE.
present action concerns an enforcement of a foreign
arbitration award arising from an alleged breach of a
management contract for a luxury hotel in Morocco. (D.I. 1)
Plaintiff Compagnie des Grands Hotels d'Afrique S.A.
("CGHA") filed a motion to extend the deadline for
amending pleadings and joining parties in the scheduling
order. (D.I. 125) Defendant Starman Hotel
Holdings LLC ("Starman") opposes any extension. (D.I.
128) For the reasons that follow, the court DENIES plaintiffs
motion without prejudice.
Factual and Procedural History
breach of contract matter was arbitrated before the ICC
International Court of Arbitration in London, England (the
"ICC"). On May 6, 2015, the ICC issued an
Arbitration Award against Woodman Maroc S.a.r.l.
("Woodman"), a former subsidiary of defendant.
(D.I. 1 at ¶¶ 58, 73) A thorough recitation of the
factual background of this action is included in Judge
Andrews' Memorandum Order, issued on July 15, 2019. (D.I.
instant litigation was filed by plaintiff on April 30, 2018
against Starman and Starwood, one of Starman's indirect
corporate parents. (D.I. 1) The complaint initially alleged
that Starman and Starwood were liable for payment of the
arbitration award based upon an agency theory. (Id.)
By Order of January 9, 2019, the court dismissed the agency
claim against Starman and Starwood. (D.I. 38) Consequently,
the only claim remaining is based upon an alter ego theory of
liability asserted against the only remaining defendant,
court held a scheduling conference on March 5, 2019 and
entered the scheduling order on March 12, 2019, which
included a September 30, 2019 deadline for amending pleadings
and joining other parties. (D.I. 48) On September 13, 2019,
plaintiff filed the present motion to amend the scheduling
order, limited to a request for an extension of the date for
amendment of pleadings and joinder from September 30, 2019 to
January 31, 2020. (D.I. 125)
Rule of Civil Procedure 16 governs pretrial management and
scheduling orders. Under Rule 16(b)(4), a scheduling order
"may be modified only for good cause and with the
judge's consent." Fed.R.Civ.P. 16(b)(4). The burden
is on the moving party to "demonstrate good cause and
due diligence." Race Tires America, Inc. v. Hoosier
Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010). Good
causes exists "when the schedule cannot reasonably be
met despite the diligence of the party seeking the
extension." Dickerson v. KeyPoint Gov't Sols.,
Inc., C.A. No. 16-657-RGA-MPT, 2017 WL 2457457, at *4
(D. Del. June 7, 2017). This good cause standard under Rule
16(b) "turns on the diligence of the movant."
Id. In its considerations, the court should remain
cognizant that "scheduling orders are at the heart of
case management. If they can be disregarded without a
specific showing of good cause, their utility would be
severely impaired." Koplove v. Ford Motor Co.,
795 F.2d 15, 18 (3d Cir. 1986). In any event, however, the
court retains authority to modify case schedules to entertain
motions resolving questions of law concerning which the facts
are undisputed in order to "secure the just, speedy, and
inexpensive determination of every action and
proceeding." Fed.R.Civ.P. 1.
argues that good cause exists to modify the deadline to amend
the pleadings for three reasons: (1) CGHA has diligently
pursued the deposition of non-party Mr. Sternlicht, (2) CGHA
has diligently pursued foreign discovery, and (3) CGHA is
diligently reviewing productions from Starman, Starwood, and
Lehman. (D.I. 125 at 6-8)
Deposition of Mr. Sternlicht
argues that it has diligently pursued the deposition of Barry
Sternlicht ("Mr. Sternlicht"), a key
non-party witness. (Id. at 6) CGHA served the
Sternlicht subpoena on July 23, 2019, setting a deposition
date of August 14, 2019. (Id; D.I. 107, Ex. 1) Mr.
Sternlicht, a resident of Connecticut, opposed the subpoena
on the basis that such testimony would be "unreasonably
cumulative or duplicative, or [could] be obtained from some
other source that is more convenient, less burdensome, or
less expensive." (D.I. 128 at 4-5) (quoting Fed.R.Civ.P.
26(b)(2)(C)(i)) On September 4, 2019, CGHA filed a motion to
compel Mr. Sternlicht's compliance with the deposition
subpoena in the United States District Court for the District
of Connecticut. (D.I. 125, Ex. B) CGHA estimates that Mr.
Sternlicht's deposition will not likely occur before
November 2019, as the District Court of Connecticut has not
issued a decision ...