Motion to Enter Scheduling Order in Texas

What Is a Motion to Enter Scheduling Order?

Background

Scheduling Orders are largely governed by Tex. R. Civ. P. Rules 166, 190-192 (among other rules) and are the template for settiing discovery deadlines, conferences, and managing other aspects of a case docket through all phases of a matter. (See generally, In re Colonial Pipeline Co. (1998) 968 S.W.2d 938, 943 [stating that “[a] trial court has discretion to schedule discovery. Although discovery responses are usually due within thirty days after service of the request, the Rules provide that the trial court may shorten or lengthen the time for making a response for good cause... A trial court can, however, abuse its discretion by acting in an unreasonable manner.”])

Concerning the setting of the scheduling order, Rule 166 states in relevant part:

“The court shall make an order which recites the action taken at the pretrial conference, the amendments allowed to the pleadings, the time within which same may be filed, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions, agreements of counsel, or rulings of the court; and such order when issued shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or extend it to all actions.”

Under Tex. R. Civ. P. 190, “[A] court must, on a party's motion, and may, on its own initiative, order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit. The parties may submit an agreed order to the court for its consideration. The court should act on a party's motion or agreed order under this subdivision as promptly as reasonably possible.” (Tex. R. Civ. P. Rule 190 - Discovery Limitations [Effective until January 1, 2021].)

How to Structure the Motion

Rule 190.4(a) states, in pertinent part, the following: “The court must, on a party's motion . . . order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit.” But Rule 190.4 does not require that the court's order provide deadlines different from those under a Level-2 case. Rather, the decision to provide different deadlines is left to the court's discretion. (Brescia v. Slack Davis (2010) No. 03-08-00042-CV, at *1 quoting Tex. R. Civ. P. 190.4(b) [“The discovery control plan ordered by the court . . . may change any limitation on the time for . . . discovery set forth in these rules.”]; Allen v. United of Omaha Life Ins. Co. (2007) 236 S.W.3d 315, 327; Baize v. Scott White Clinic, No. 03-05-00780-CV, 2007 WL 135956, at *9 (mem. op.) [court's discretion to provide deadlines different from those under Level-2 case.]) In other words, even under a Level-3 scheduling order, Level-2 deadlines continue to apply “unless specifically changed in the discovery control plan ordered by the court.” (Brescia, supra, citing Tex. R. Civ. P. 190.4(b).)

Grounds for Motion

Rule 190.5 provides that “[t]he court may modify a discovery control plan at any time and must do so when the interest of justice requires. The court must allow additional discovery:

related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if:

the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and
the adverse party would be unfairly prejudiced without such additional discovery;

regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends.”

(Tex. R. Civ. P. 190.5.) Rule 190.5 lists two specific situations in which the trial court must modify a discovery-control plan to allow for additional discovery. (Id., at 190.5(a), (b); see also, Brescia v. Slack Davis (2010) No. 03-08-00042-CV, at *1-2.)

The Court’s Decision

"Although [the court has] never had occasion to apply the rule to scheduling orders, the courts of appeals have, and have mostly held that such orders do not grant new trials." (In re Lovito-Nelson (2009) 278 S.W.3d 773, 775 citing In re Nguyen (2003) 155 S.W.3d 191, 193-194 [holding that a scheduling order setting a trial date signed within the court's plenary jurisdiction did not grant a motion for new trial]; In re Hesser (2000) No. 05-00-00769-CV, 2000 Tex.App. LEXIS 3548, at *4, 2000 WL 694742, at *2.)

“[T]he resetting of a trial date does not modify a deadline established by a scheduling order even if that scheduling order refers to the Rules of Civil Procedure for the initial calculation of its deadlines.” (Holmes v. GMAC, Inc. (2014) 458 S.W.3d 85, 95 citing G.R.A.V.I.T.Y. Enterprises, Inc. v. Reece Supply Co. (2005) 177 S.W.3d 537 at 543 n. 2.)

Documents for Motion to Enter Scheduling Order in Texas

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ROCIO G. PATLAN vs. JAVIER E. MELENDEZ, et al document preview

DOCKET SHEET CASE SUMMARY 1-23-19 - CASE FILING COVER SHEET

8 pages

DC-24-04143 COUNTY COURT AT LAW NO. 5 DOCKET SHEET CASE NO. CC-19-00494-E ROCIO G PATLAN § Location: County Court at Law No. 5 vs. § Judicial Officer: TAYLOR, NICOLE JAVIER E MELENDEZ, MICHAEL MELEN…