                                         Slip Op. 14-147

                  UNITED STATES COURT OF INTERNATIONAL TRADE

UNITED STATES,
                            Plaintiff,

             v.
                                                           Before: Leo M. Gordon, Judge
HORIZON PRODUCTS INTERNATIONAL,
                                                           Court No. 14-00104
INC.,

                            Defendant.

                              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.
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
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
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
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
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
