Case 6:17-cv-01217-EFM-ADM Document 143 Filed 09/10/21 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`LOGANTREE LP,
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`Plaintiff,
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`v.
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`GARMIN INTERNATIONAL, INC. AND
`GARMIN USA, INC.,
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`Defendants.
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` Case No. 17-1217-EFM-ADM
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`ORDER
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`This matter comes before the court on Defendants Garmin International, Inc. and Garmin
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`USA, Inc.’s (collectively “Garmin”) Notice to the Court and Motion to Vacate Deadlines. (ECF
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`140.) Garmin asks the court to vacate deadlines imposed in the court’s August 5 order because
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`of the recent death of Plaintiff LoganTree LP’s (“LoganTree”) principal and because the parties
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`were making progress during their meet-and-confer efforts. LoganTree does not oppose the
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`motion. For the reasons explained below, the parties have not shown good cause for any
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`particular extension, let alone what amounts to wholesale and undefined extension of nearly all
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`remaining deadlines. For this reason, the court denies Garmin’s motion and reimposes
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`scheduling order deadlines as set forth below.
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`I.
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`BACKGROUND
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`On August 5, the court issued a memorandum and order ruling on the parties’ competing
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`motions regarding additional source code printouts and LoganTree’s motion to amend the
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`scheduling order to allow additional time for LoganTree to serve its infringement expert
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`disclosure. See LoganTree LP v. Garmin Int’l, Inc., --- F.R.D. ---, 2021 WL 3421577, at *1 (D.
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`Case 6:17-cv-01217-EFM-ADM Document 143 Filed 09/10/21 Page 2 of 8
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`Kan. 2021). As explained in the order, LoganTree’s noncompliance with previous orders to
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`meet and confer and filing deadlines caused a domino effect of delays that have plagued the case
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`schedule for months now. To avoid further delays, the August 5 order issued additional
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`directives, imposed deadlines, and set a live hearing—all to facilitate a prompt and final
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`resolution of the source code printouts dispute and to get this case back on track.
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`Because the court granted Garmin’s motion for a protective order, it gave Garmin until
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`September 3 to file a motion seeking its reasonable expenses after first meeting and conferring
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`with LoganTree to attempt to resolve the issue. Id. at *11. And the court, in denying
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`LoganTree’s motion for leave to file its motion to compel out of time, gave LoganTree one last
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`chance to renew and properly support its motion. Specifically, the court ordered that if
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`LoganTree wanted to bring a renewed motion to compel:
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`[I]t must first meet and confer with Garmin to narrow the scope of
`requested source code printouts to that reasonably necessary to
`prepare LoganTree’s expert report. Specifically, LoganTree and/or
`its expert must identify the specific additional lines/blocks of
`source code (not entire modules or files) that LoganTree contends
`it needs and explain how those blocks correlate to specific claim
`limitations. To do this, the court expects LoganTree to take
`Garmin up on its offer for LoganTree’s expert to go back into the
`source code environment and take notes, if necessary, so that he
`can identify the additional source code printouts he thinks he
`needs. In return, Garmin should be prepared to distinguish the
`claim limitations for which Garmin contends that LoganTree must
`identify pinpoint citations to source code in order to prove the
`claim limitation is met versus those claim limitations for which
`Garmin would concede
`that
`the other materials cited
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`LoganTree’s final infringement contentions (e.g., product manuals,
`marketing and promotional materials, etc.) sufficiently demonstrate
`that the claim limitation is met.
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`Id. at *12. The court directed that, if the parties were unable to resolve any remaining areas of
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`disagreement, LoganTree could renew its motion to compel orally at an in-person hearing on
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`September 14, 2021. The court outlined its expectations of the parties in meeting and conferring
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`Case 6:17-cv-01217-EFM-ADM Document 143 Filed 09/10/21 Page 3 of 8
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`with specificity so that if a live hearing became necessary, both sides would be prepared to go
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`beyond broad generalities and “address the extent to which LoganTree’s expert needs printouts
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`of specific source code to show that specific claim limitations are met for any anticipated expert
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`report.” Id. The court expected the parties to be prepared so that both their time and the court’s
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`time could be meaningfully utilized during the live hearing that was to continue from day-to-day
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`until complete. The August 5 order also put the parties on notice that, at the hearing, the court
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`would reset LoganTree’s deadline for service of its infringement expert’s report and reset all
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`remaining scheduling order deadlines. Id. at *14.
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`Garmin’s current motion now seeks to vacate these deadlines and the September 14
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`hearing. LoganTree’s response joins in requesting the same relief.
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`II.
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`DISCUSSION
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`Federal Rule of Civil Procedure 6(b) provides that the court may extend deadlines for
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`good cause. Likewise, Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order
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`“may be modified only for good cause and with the judge’s consent.” The good-cause standard
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`requires the movant to show that it cannot meet existing deadlines despite diligent efforts.
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`Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 988–89 (10th Cir. 2019) (applying the Rule
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`16(b)(4) good-cause standard to affirm the district court’s denial of an extension of time to
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`designate an expert witness); Utah Republican Party v. Herbert, 678 F. App’x 697, 700–01 (10th
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`Cir. 2017) (applying Rule 16(b)(4)’s good-case standard to Rule 6(b)); Gorsuch, Ltd., B.C. v.
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`Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230, 1241 (10th Cir. 2014) (applying the standard to a
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`motion to amend filed after the scheduling order deadline); see also FED. R. CIV. P. 16(b)(4)
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`advisory committee’s note to the 1983 amendment (stating good cause exists when a schedule
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`cannot be reasonably met despite the diligence of the party seeking the extension). This standard
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`generally requires the moving party to provide an adequate explanation for the delay. Testone,
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`942 F.3d at 988. The court is “afforded broad discretion in managing the pretrial schedule.”
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`Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir. 2011).
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`Neither Garmin’s motion nor LoganTree’s response brief show that they could not meet
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`existing deadlines despite diligent efforts. Garmin argues the extensions are warranted because
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`LoganTree’s principal officer, Theodore Brann, died on August 31. Garmin states that, before
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`Brann’s death, the parties were making good progress on their efforts to meet and confer to
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`resolve the issues of attorneys’ fees, source code printouts, and expert report deadlines but that
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`Brann’s death stalled the process. Because of this, Garmin requests that the court vacate or
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`extend all remaining deadlines to allow LoganTree time to appoint a new principal officer.
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`Recognizing that Garmin is not the party in the best position to make a record regarding Brann,
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`the court directed LoganTree to file an expedited response to the motion. LoganTree’s response
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`largely restates what Garmin already said and provides no additional information.
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`The parties’ conclusory explanations do not establish good cause for the requested
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`extensions. To begin with, LoganTree is not Brann. It is a legal entity that exists independently
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`of Brann and must, by its very nature, have some structure for decision-making authority in
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`place. The parties have known about Brann’s health issues for months, so LoganTree should
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`have had a plan in place to continue to prosecute the case that it brought regardless of Brann’s
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`status. But even separate and apart from LoganTree being its own independent legal entity, the
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`parties do not explain why Brann’s death affects the deadlines at issue. The court’s August 5
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`order gave Garmin until September 3 to file a motion seeking its reasonable expenses after first
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`meeting and conferring with LoganTree to attempt to resolve the issue. By the time Brann’s
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`passed away on August 31, the parties should have already completed the meet-and-confer
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`process. As to the issue involving source code printouts, Brann’s death should have no impact
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`on resolution of that issue because he is not even authorized to view source code under the terms
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`of the protective order.
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`Furthermore, the August 5 order provided the parties with ample time to meet and confer
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`to attempt to narrow or resolve their dispute regarding source code before the September 14
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`hearing and in plenty of time for Garmin to file its motion for attorney fees by September 3. The
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`parties conclusory statements that they have been meeting and conferring are insufficient to
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`establish that they were diligent in attempting to meet the deadlines at issue, and are
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`unpersuasive given LoganTree’s established pattern of dragging its heels in this case well before
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`Brann passed away. Indeed, LoganTree’s failure to meet and confer on the source code printout
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`issue not only stalled resolution of that discovery dispute but has now stalled the entire case for
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`months. Therefore, the lack of specific detail regarding the parties’ meet-and-confer efforts
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`leaves the court with no way to determine whether the parties did in fact act with diligence in
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`attempting to meet the existing deadlines. Accordingly, the court denies Garmin’s motion for
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`failure to demonstrate good cause for the requested extensions.
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`That said, the court recognizes that it is possible that the parties truly acted with diligence
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`in trying to meet the deadlines but that their current briefing is simply devoid of the necessary
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`details to make this showing. For that reason only, the court will deny the motion without
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`prejudice. If and when Garmin decides to file a motion for attorneys’ fees, it must do so by first
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`filing a motion for leave to file out of time that explains with specificity all efforts made to meet
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`and confer, including the dates and substance of all communications, and it must attach its
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`proposed motion for attorneys’ fees as an exhibit. The page limits previously imposed still
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`apply. Likewise, if and when LoganTree decides to renew its motion to compel, it must file a
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`motion for leave to file its motion to compel out of time. That motion must provide a date-by-
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`date chronology of all efforts LoganTree made to resolve the source code printouts issue,
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`including identifying all dates its expert went back into the source code environment and the
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`dates and substance of LoganTree’s communications with Garmin about additional requests for
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`lines/blocks of source code. LoganTree must attach is proposed motion to compel as an exhibit
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`to the motion. If the court decides to hear LoganTree’s motion on its merits, it will reset the
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`matter for a live hearing. All participants will be required to appear in person. LoganTree will
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`be required to bring its source code expert and infringement contentions. Garmin will be
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`required to bring its source code computer, a printer, and its non-infringement contentions. In
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`allowing the parties to move to for leave to file motions out of time, the court is not suggesting
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`that either party should rush to file an underdeveloped motion as quickly as possible, particularly
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`if meet-and-confer efforts are truly progressing. However, the court does expect the parties to
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`act diligently in attempting to resolve these issues and to articulate their diligence if and when
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`they seek to renew their respective motions.
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`Because the parties’ briefing demonstrates that they have not complied with the court’s
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`directive to meet and confer, the court cancels the September 14 hearing. Unless and until the
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`parties have complied with the court’s specific instructions regarding meeting and concerning
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`about source code, a hearing on the dispute will not be productive.
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`III. AMENDED SCHEDULING ORDER
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`Because the court’s August 5 order suspended the remaining scheduling-order deadlines,
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`it is now time to reset those deadlines and get the case schedule back on track. The court
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`therefore resets the following deadlines and settings:
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`1.
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`Expert discovery must be substantially complete no later than October 29, 2021.
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`The parties are ordered to meet and confer to come up with a proposed schedule to substantially
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`complete expert discovery and to submit that schedule to the court in a joint status report no later
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`than October 1, 2021. The proposed schedule must include deadlines for service of responsive
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`expert disclosures and allow time to complete expert depositions, other than perhaps on the issue
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`of infringement and non-infringement if disputes over source code printouts continue to linger.
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`To the extent that expert discovery on the issue of infringement and non-infringement is not
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`complete by October 29, 2021, the parties are directed to submit their proposed plan to complete
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`expert discovery on those issues when they submit the proposed pretrial order.
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`2.
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`Pursuant to Fed. R. Civ. P. 16(a), a final pretrial conference is scheduled for
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`November 16, 2021, at 10:00 a.m. The final pretrial conference is currently scheduled by
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`phone (888-363-4749; access code 3977627), but the parties may appear in person by making
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`such a request when they submit the proposed pretrial order. The court may require the parties to
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`appear in person if the court believes the pretrial order requires substantial work or that there are
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`other issues such that the case would benefit from having the pretrial conference in person rather
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`than by phone. No later than November 9, 2021, defense counsel must submit the parties’
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`proposed pretrial order
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`in Word
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`format as an attachment
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`to an email sent
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`to
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`ksd_mitchell_chambers@ksd.uscourts.gov. The proposed pretrial order must not be filed with
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`the clerk’s office.
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`3.
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`Dispositive motions must be filed by December 7, 2021.
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`All other provisions of the scheduling order remain in effect unless modified herein. The
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`court cautions the parties that it will be highly disinclined to grant any further extensions of this
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`case schedule absent truly extraordinary circumstances.
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`IT IS THEREFORE ORDERED that Defendants Garmin International, Inc. and
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`Garmin USA, Inc.’s (collectively “Garmin”) Notice to the Court and Motion to Vacate Deadlines
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`(ECF 140) is denied.
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`IT IS SO ORDERED.
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`Dated September 10, 2021, at Topeka, Kansas.
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`s/ Angel D. Mitchell
`Angel D. Mitchell
`U.S. Magistrate Judge
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