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Cynthia Sommer v. Wagner

September 8, 2011


The opinion of the court was delivered by: Hon. Bernard G. Skomal U.S. Magistrate Judge United States District Court


Currently before the Court is the parties' Joint Motion to Extend Expert Report Disclosure, Expert Discovery Cut-off and Motion Filing Deadline and to Allow For Depositions of Retained Experts." (Doc. No. 99.) Pursuant to Local Civil Rule 7.1(d)(1), the Court finds this matter suitable for decision without oral argument For the reasons set forth below, the Joint Motion is GRANTED in part.

Procedural Background

Plaintiff, Cynthia Sommer, filed this lawsuit on September 24, 2009. (Doc. No. 1.) Magistrate Judge William McCurine held an Early Neutral Evaluation Conference on March 12, 2010. (Doc. No. 25.) The parties did not settle the case, therefore, Judge McCurine issued an Order Setting Rule 26 Compliance and a Case Management Conference. (Doc. No. 26.) Pursuant to that order the parties lodged a joint Rule 26 report and proposed discovery plan. All parties agreed to make initial disclosures and no party objected to the commencement of discovery. On April 26, 2010, Judge McCurine held a telephonic Case Management Conference and issued a Scheduling Order. (Doc. Nos. 30-31.) The Scheduling Order set forth deadlines for completing all discovery, providing expert reports, filing pretrial motions; as well as a date for the pretrial conference. Specifically, the Scheduling Order allotted more than eight months for the parties to complete discovery. (Doc. No. 31.)

1. First Request for an Extension

On October 1, 2010, the parties filed a Joint Motion to: (1) dismiss defendant Centano in his individual capacity, and (2) extend the time to complete discovery and continue pretrial dates. (Doc. No. 61.) On November 3, 2010, the Hon. William Q. Hayes dismissed defendant Centano from the case and referredthe motion to continue dates and deadlines to the undersigned. (Doc. No. 62.) The parties jointly requested that the Court continue all dates and deadlines by five months because prior to defendant Centano's dismissal, the United States, citing Iqbal v. Ashcroft, 129 S. Ct. 1937, 1953 (2009), took the position that all discovery was stayed pending a determination of qualified immunity. (Doc. No. 61.) The Court determined that the reasoning applied in Iqbal did not apply to this case, and that good cause did not exist to grant such a long extension. (Doc. No. 63.) Accordingly, the Court denied the parties' motion without prejudice. (Id.) Nonetheless, the Court set a further Case Management Conference in order to talk to the parties about their need for an extension. (Id.)

In addition to setting a further Case Management Conference, the Court requested that the parties file a revised discovery plan on or before December 9, 2010. (Id.) The parties, however, did not file their discovery plan until December 21, 2011. (Doc. No. 65.) The parties proposed discovery plan requested a fact discovery deadline of April 20, 2011; a motion filing deadline of April 15, 2011; an expert discovery deadline of June 20, 2011; and that the final pretrial conference be set for July 21, 2011. (Id. at 3.) The parties proposal specifically stated that: "The parties have negotiated in good faith in amending their discovery schedules and are in agreement as to the procedure to follow in accomplishing the remaining discovery without disturbing court-imposed deadlines." (Id.)

On December 27, 2011, the Court held a lengthy Case Management Conference. (Doc. No. 67.) During the conference the Court made clear that it intended to manage this case closely and that the parties were expected to strictly adhere to all dates and deadlines. Significant time was spent discussing what discovery remained outstanding and why that discovery could not be completed on time. Plaintiffs identified 10 fact witness depositions that still needed to be taken and Defendants represented that the only significant piece of discovery that they needed to secure would be Plaintiff's deposition. Thereafter, the Court entered an Amended Scheduling Order granting the parties' request and setting April 4, 2011 as the fact discovery deadline; June 1, 2011 as the deadline for completing expert discovery; April 15, 2011 as the deadline to file dispositive motions; and the pretrial conference for July 25, 2011. (Doc. No. 68.)

2. Second Request for an Extension

On April 14, 2011, the parties filed another Joint Motion to Extend Discovery and Pretrial Dates, and to Modify Case Management Conference Order. (Doc. No. 70.) Despite the fact that all fact discovery was to be completed by April 4, 2011, the parties requested until August 1, 2011-four additional months-to complete fact discovery. (Id.) In addition to requesting more time to complete fact discovery, the parties asked to extend all other deadlines by at least four months. (Id.) In response, the Court set a further Case Management Conference to learn what specific discovery remained outstanding and why that discovery was not completed in the time allotted. (Doc. No. 73.)

The Case Management Conference was held on April 25, 2011. (Doc. No. 75.) The Court spent more than two hours going over exactly what written discovery remained outstanding, which depositions the parties had completed and how many still needed to be taken, how much time the parties wanted for expert discovery, and what specific discovery was necessary before Defendants could file motions for summary judgment. Plaintiff represented that she needed to take 11 more fact witness depositions and Defendants only needed to complete Plaintiff's deposition. In addition, the parties represented that they planned to only take three to four expert depositions.

During this conference the parties agreed that if the Court granted them additional time to complete fact discovery, they could conduct expert discovery simultaneously. Specifically, the parties suggested a schedule where experts would serve written reports by July 1, 2011 and rebuttal reports by July 15, 2011; and expert depositions would be completed by September 2, 2011. Initially the parties even proposed a motion filing deadline less than two weeks after the close of fact discovery and prior to the completion of expert discovery-August 12, 2011-and suggested that the final pretrial conference take place November 21, 2011.

With that in mind, the Court informed the parties that it would issue an amended schedule allowing fact and expert discovery to overlap, but would not grant any future request to continue expert discovery based on the need to complete fact discovery. In the end, the Court amended the schedule to reflect the parties' requested deadlines but slightly revised their proposal to reflect a more plausible deadline for filing dispositive motions as well as a pretrial conference date that would take place after the court would hear and rule on those motions. (Doc. No. 76.) Therefore the Court set August 1, 2011 as the fact discovery deadline; August 29 and September 12, 2011 as the deadlines for serving expert reports and rebuttal reports; October 12, 2011 for the ...

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