KFH Realty, LLC et al v. Wells Fargo Bank, N.A.

Filing 62

OPINION AND ORDER directing that: (1) Defendant Wells Fargo Bank, N.A.'s 37 MOTION exclude is denied; (2) plfs KFH Realty, LLC and Kim F. Henderson's 38 response is treated as a motion to Reconsider this court's 4/12/2012 34 Order, and said motion to reconsider is granted; (3) the parties have seven days from the date of this order to make expert testimony disclosures and fully comply with FRCP 26(a)(2). Signed by Honorable Judge Myron H. Thompson on 7/5/12. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

KFH REALTY, LLC and KIM
F. HENDERSON,
Plaintiffs,
v.
WELLS FARGO BANK, N.A.,
Defendant.

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CIVIL ACTION NO.
2:11cv278-MHT
(WO)

OPINION AND ORDER
Plaintiffs KFH Realty, LLC and Kim F. Henderson
brought this action against defendant Wells Fargo Bank,
N.A. asserting breach of contract and various state-law
torts.

Jurisdiction is proper under 28 U.S.C. § 1332

(diversity of citizenship).

Now pending is Wells Fargo’s

motion to exclude the expert testimony of Harris Hollans.
For the following reasons, that motion will be denied.
This court’s scheduling order gave the plaintiffs
until April 9, 2012, to serve his expert reports on Wells
Fargo.

On that date, they moved for an extension of the

deadline.

They amended that motion the following day to

indicate

that

Wells

Fargo

had

no

objection

to

the

extension and went ahead and served Wells Fargo with a
copy of Hollans’s expert report.

Nevertheless, this

court denied the motion because the plaintiffs had failed
to explain the reason for their last-minute request and
the court’s scheduling order plainly states that such
requests will be denied absent unforseen and unavoidable
circumstances beyond the movant’s control.
On April 12, 2012, Wells Fargo moved to exclude
Hollans’s

expert

report

testifying at trial.

and

to

preclude

him

from

The plaintiffs responded that same

day, explaining for the first time that Hollans had been
working

on

the

report

for

many

weeks

and,

despite

repeated assurances that it would be completed on time,
needed an additional day to complete it.

During an on-

the-record hearing held on July 3, 2012, the plaintiffs
asked this court to treat their response as a motion to
reconsider the earlier denial of their motion to extend.
No objections were raised.

2

The

circumstances

reconsideration.
Wells Fargo.

of

this

case

warrant

First, there can be no prejudice to

It received Hollans’s report the day after

the deadline and there is still ample time to depose him
and otherwise prepare for trial.

Second, the explanation

for the last-minute nature of the plaintiffs’ motion to
extend

justifies

deadline.

a

short

extension

of

the

expert

Hollans has only infrequently served as an

expert witness, and he appears to have misjudged the time
it took to prepare a report.

The plaintiffs reasonably

relied on Hollans’s repeated assurances that the report
would be done on time and contacted both Wells Fargo and
the court as soon as they realized that an extension
would be necessary.

Finally, the finder of fact will no

doubt

expert

benefit

from

testimony

on

the

somewhat

complicated issues related to damages that this case
appears to present.

For all those reasons, it makes

sense to permit a short extension of the time that the
parties have to exchange expert reports.

3

***
For the foregoing reasons, it is ORDERED that:
(1) Defendant Wells Fargo Bank, N.A.’s motion to
exclude (doc. no. 37) is denied.
(2) Plaintiffs KFH Realty, LLC and Kim F. Henderson’s
response in opposition (doc. no. 38) is treated as a
motion to reconsider this court’s April 12, 2012, order
(doc. no. 34), and said motion to reconsider is granted.
(3) The parties have seven days from the date of this
order to make expert testimony disclosures and fully
comply with Federal Rule of Civil Procedure 26(a)(2).
DONE, this the 5th day of July, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE