Jones v. Coty, Inc. et al
Filing
112
Order re: the 97 Objection the Magistrate Judge's order granting thedefendants an extension of time within which to make their Rule 26(a)(2)disclosures. The Order is affirmed. Signed by District Judge William H. Steele on 4/27/2018. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHAMIKA JONES, et al., etc.,
Plaintiffs,
v.
COTY, INC., etc., et al.,
Defendants.
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) CIVIL ACTION 16-0622-WS-B
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ORDER
This matter is before the Court on the plaintiffs’ objection to an order
entered by the Magistrate Judge. (Doc. 97). The defendants have filed responses
and the plaintiffs a reply, (Docs. 108-10), and the objection is ripe for resolution.
The plaintiffs object to the order of the Magistrate Judge granting the
defendants’ identical motions for an extension of time to disclose experts. (Doc.
96). The plaintiffs describe this order as a report and recommendation, (Doc. 97 at
6), but it is not; instead, it is an order on a non-dispositive pretrial matter. “A
judge of the court may reconsider any pretrial matter [on a non-dispositive issue]
where it has been shown that the magistrate judge’s order is clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A); accord Fed. R. Civ. P. 72(a) (“The
district judge in the case must consider timely objections and modify or set aside
any part of the order that is clearly erroneous or is contrary to law.”).
As the Court has repeatedly noted, [t]he ‘clearly erroneous or contrary to
law’ standard of review is extremely deferential. ... Relief is appropriate under the
‘clearly erroneous’ prong of the test only if the district court finds that the
Magistrate Judge abused [her] discretion or, if after reviewing the record as a
whole, the Court is left with a definite and firm conviction that a mistake has been
made. ... With respect to the ‘contrary to law’ variant of the test, an order is
contrary to law when it fails to apply or misapplies relevant statutes, case law or
rules of procedure.” Cordova v. R&A Oysters, Inc., 2016 WL 3102224 at *1 (S.D.
Ala. 2016) (internal quotes omitted). The Court has also noted that, “[i]n
reviewing a magistrate judge’s nondispositive ruling, this Court does not consider
matters not placed before that judge.” White v. Thyssenkrupp Steel USA, LLC,
2010 WL 2042331 at *2 (S.D. Ala. 2010) (internal quotes omitted).
This action (“Jones”) was filed by a single plaintiff in December 2016.
(Doc. 1). An identical suit (“Bowens”), filed in the Middle District of Alabama in
March 2017 by the same counsel representing the Jones plaintiff, was transferred
to this District in May 2017 and promptly consolidated into Jones on the
plaintiffs’ motion. (Docs. 25, 27). A third identical suit (“Caddell”), filed in the
Northern District of Alabama in February 2017 by the same counsel, was likewise
transferred to this District in May 2017 and promptly consolidated into Jones on
the plaintiffs’ motion. (Docs. 29, 30).
In June 2017, the Magistrate Judge entered a Rule 16(b) scheduling order,
providing for the disclosure of defense experts pursuant to Rule 26(a)(2) no later
than December 15, 2017. (Doc. 36 at 2).
A fourth identical suit (“Franks”), filed in the Southern District of
Mississippi in May 2017 by the same counsel, was transferred to this District in
July 2017 and promptly consolidated into Jones on the plaintiffs’ motion. (Docs.
41, 43).
A fifth identical suit (“Taylor”) was filed in the Western District of
Louisiana in October 2017 by the same counsel. Although Taylor’s counsel
emailed a courtesy copy of the Taylor complaint to defense counsel in this action
two days after suit was filed, (Doc. 97 at 3), at least one defendant was not served
until December 2017. (Doc. 59 at 1). On December 13, 2017, the defendants
herein moved for a 90-day extension of all remaining deadlines in the scheduling
order, including the deadline for disclosing experts, based on the expectation that
Taylor would be transferred to this District and consolidated into Jones. (Doc.
2
59). The record discloses no opposition by the plaintiffs to this motion, which the
Magistrate Judge granted on December 19, 2017 following a telephone
conference. The new deadline for the defendants’ Rule 26(a)(2) disclosures was
established as March 15, 2018. (Doc. 61 at 1). The parties were “cautioned that
there will be no further extensions absent a showing of extraordinary
circumstances.” (Id.).
The defendants filed an unopposed motion to transfer Taylor on December
18, 2017. (Doc. 82 at 2). That motion was granted on February 7, 2018. (Doc. 66
at 1, 9-10). Taylor was transferred and opened as a new civil action in this District
on February 14, 2018. Taylor v. Coty, Inc., Civil Action No. 18-0070-WS-B
(Doc. 7). On March 12, 2018, the plaintiffs moved to consolidate Taylor into
Jones, which motion the Court granted on March 19, 2018. (Docs. 73, 85).
Meanwhile, on March 15, 2018 (the deadline for their Rule 26(a)(2)
disclosures), the defendants filed both a notice of service of initial expert witness
disclosures, (Doc. 81), and separate but identical motions to extend the deadline
for disclosing expert witnesses. (Docs. 76-80). The motions noted that Taylor
was not yet part of Jones but presumably soon would be; that the defendants
anticipated naming Taylor’s treating physicians and medical providers as expert
witnesses, with their identities as yet unavailable; and that any expert retained by
the defendants would need to have information regarding Taylor’s history of using
the subject product and similar products. (Id.).
The plaintiffs filed two briefs in opposition. Both asserted without
explanation that the defendants had not demonstrated good cause for purposes of
Rule 16(b)(4) or extraordinary circumstances for purposes of the Magistrate
Judge’s order of December 19, 2017. Both also argued that the defendants were
required to move for an extension of time as soon as they believed an extension
“might be beneficial to them” and that their failure to file their motion until the
March 15 deadline negated good cause or extraordinary circumstances. (Docs. 82,
83).
3
In her order, (Doc. 96), the Magistrate Judge acknowledged the prevailing
“good cause” standard and its “due diligence” component. She noted the
plaintiffs’ argument that the defendants had long anticipated that Taylor would be
transferred to this District and consolidated into Jones, and further noted that
plaintiffs’ counsel provided defense counsel with Taylor’s medical records prior to
transfer.1 The Magistrate Judge nevertheless focused – as does the Court – on the
critical fact that Taylor was not a part of Jones, and thus was not subject to the
scheduling orders in Jones, until after the March 15 deadline had passed. (Doc.
96). That is, the defendants could not have been under order in Jones to disclose
expert witnesses regarding Taylor before Taylor was made a plaintiff in Jones by
consolidation.
The Magistrate Judge’s order gave the defendants until April 13, 2018
within which to make their expert disclosures. (Doc. 96 at 5). The defendants had
already, on March 15, 2018, timely identified two expert witnesses, who were
treating physicians of Franks and Jones. (Doc. 98-1 at 2). After the Magistrate
Judge’s order, and just two days after Taylor served discovery responses, the
defendants timely identified a single additional expert – one of Taylor’s treating
physicians. (Docs. 100, 103, 108 at 1). As noted above, this was an expert the
defendants were under no obligation to identify until after Taylor was consolidated
into Jones.
Neither before the Magistrate Judge nor before the Court have the plaintiffs
offered any legal authority in support of their facially implausible ipse dixit that a
party with reason to believe a new case will be consolidated into a separate,
existing case must immediately treat the new case as already subject to orders in
the existing case and must comply with those orders or be foreclosed from
showing good cause for relief from them after consolidation occurs. Nor have
1
This information presumably was presented at the discovery hearing, since it is
not mentioned in the parties’ briefs.
4
they identified any legal authority for the unlikely proposition that a party must
move to amend a scheduling order immediately upon first realizing it may need an
extension of a deadline and that it forfeits extension if it does not so move until the
deadline arrives.2 Watering down the argument to one of “at least put[ting] the
Court on notice … that such an extension may or would likely be necessary in the
future,” (Doc. 97 at 11), does not cure its fatal defect. Because it is the plaintiffs’
burden to show that the Magistrate Judge’s ruling was contrary to law,3 and not
the Court’s burden to conjure up precedent or analysis to support their ipse dixit,
their objection must fail.
As often happens when parties object to a Magistrate Judge’s ruling, the
plaintiffs raise before the Court several arguments they omitted from their two
briefs in opposition to the defendants’ motions. As previously noted, the Court
“does not consider matters not placed before” the Magistrate Judge. White, 2010
WL 2042331 at *2.4
Even were they to be considered, the plaintiffs’ untimely arguments would
fail on their merits. The argument that the defendants have been generally lazy in
2
It is not difficult to envision the avalanche of unnecessary, defensive motions
that would be pointlessly filed in every case if litigants feared they could be denied an
extension of time simply because they did not move for such an extension immediately
upon realizing that an extension “might” be needed. (Doc. 82 at 2; Doc. 97 at 14).
3
The plaintiffs appear to assume that the defendants bear the burden before the
Court. (Doc. 110 at 2). They are mistaken. The Court may reconsider the Magistrate
Judge’s order only if “it has been shown” to be clearly erroneous or contrary to law. 28
U.S.C. § 636(b)(1)(A). It is of course the challenging party – here, the plaintiffs – that
must make this showing. The plaintiffs’ misunderstanding as to the allocation of burden
presumably derives from their mischaracterization of the Magistrate Judge’s order as a
report and recommendation, which would be subject to de novo review upon proper
objection. Id. § 636(b)(1)(B).
4
The Court is aware that the Magistrate Judge conducted a discovery hearing.
The plaintiffs, however, have not identified any argument they made at the hearing, and
the Court does not bear the responsibility of listening to the 75-minute-long recording of
the hearing in order to determine, on the plaintiffs’ behalf, whether they orally presented
arguments not made in their briefs before the Magistrate Judge.
5
their conduct of discovery, (Doc. 97 at 2, 3, 4, 11-12), would fail because the
plaintiffs point to no legal authority supporting their implicit but doubtful premise
that if a litigant is not diligent in some aspects of its case, it must be deemed to
have lacked diligence in another aspect of that case or of a separate case. The
argument that the defendants’ “expect[ation]” of submitting discovery requests to
Taylor and naming her health care providers as expert witnesses was mere
“speculation and conjecture,” (id. at 13), would fail given that the defendants
apparently followed exactly that course with respect to the other plaintiffs, (Docs.
62-65; Doc. 98-1 at 2), and then, consistent with their expectation, named Taylor’s
treating physician as an expert witness two days after receiving her discovery
responses. (Docs. 100, 103, 108 at 1).
The plaintiffs are frustrated that the Magistrate Judge’s order granted the
defendants additional time to name not only treating physicians as experts but also
a retained expert. They justifiably fume that the defendants had many months
before March 15, 2018 – including four months after the plaintiffs identified their
experts – within which to name a retained expert and that defense counsel at the
discovery hearing could not articulate any good reason for the defendants’ failure
to accomplish this task in the unusually long amount of time they had already been
granted. (Doc. 97 at 8-10). The Magistrate Judge’s order does not expressly
address why she was extending the deadline with respect to retained experts, but
her reasoning presumably was that, because the defendants were not obligated to
identify experts as to Taylor until after Taylor was consolidated into Jones, any
expert usable as to Taylor – both treating physicians and retained experts – could
be identified following consolidation. Once again, the plaintiffs have identified no
legal authority or principle that renders the Magistrate Judge’s ruling in this regard
clearly erroneous or contrary to law. The question, moreover, is apparently moot,
since the extended deadline for expert disclosures has passed without the
defendants identifying any retained expert. (Doc. 108 at 1).
6
In their reply brief, the plaintiffs advance yet another new argument – that
the Magistrate Judge committed clear error by formulating a rationale justifying
her decision that had not been articulated by the defendants. (Doc. 110). As this
Court has ruled many times, “[d]istrict courts, including this one, ordinarily do not
consider arguments raised for the first time on reply.” Gross-Jones v. Mercy
Medical, 874 F. Supp. 2d 1319, 1330 n.8 (S.D. Ala. 2012) (citing cases and
explaining rationale). Because the plaintiffs offer no reason the Court should stray
from this rule, it will not do so.
Even had this argument been timely raised in the plaintiffs’ principal brief,
it would fail for at least three reasons. First, the Magistrate Judge did not in fact
formulate a rationale not advanced by the defendants. In their motions, the
defendants argued for an extension because Taylor had not yet been consolidated
into Jones and because, once consolidation occurred, they would want to pursue
formal discovery before disclosing expert witnesses. (Docs. 76-80). The
Magistrate Judge ruled that the motions should be granted because discovery
regarding Taylor’s claims was delayed until after the March 15 deadline. (Doc. 96
at 4-5). It is difficult to imagine a tighter fit between proposed rationale and
adopted rationale.5
Second, the plaintiffs have not shown (or attempted to show) that the
defendants did not articulate a rationale similar to that of the Magistrate Judge
during the 75-minute-long discovery hearing.6
5
The plaintiffs complain that the defendants did not employ the phrase, “good
cause,” in their motions, leaving it to the Magistrate Judge to rule that this standard was
met without its invocation by the defendants. (Doc. 110 at 4). Good cause is not a
rationale but a label; in any event, the plaintiffs themselves injected the phrase into the
discussion, (Docs. 82, 83), mooting any failure by the defendants to do so.
6
Similarly, they have not attempted to show that the defendants did not invoke
“good cause” at the hearing.
7
Third, the plaintiffs have not shown that a court has no authority to fill in
gaps in a litigant’s argument (such that doing so could be reversible error), only
that it has no obligation to do so.7
For the reasons set forth above, the Magistrate Judge’s order granting the
defendants an extension of time within which to make their Rule 26(a)(2)
disclosures is affirmed.
DONE and ORDERED this 27th day of April, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
7
The plaintiffs focus on Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011),
and decisions of this Court citing Fils. While Fils stated that “district courts cannot
concoct or resurrect arguments neither made nor advanced by the parties,” id. at 1284, it
equated “argument” with “particular theory of liability,” id., and it relied for this
proposition on Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta,
219 F.3d 1301, 1325 (11th Cir. 2000), which opinion it similarly described as “finding
that the plaintiffs abandoned a claim because they did not present the argument to the
district court.” 647 F.3d at 1284 (emphasis added). It is unremarkable that a court
cannot create or revive a claim the parties have not properly pleaded or preserved, but
that is not what the Magistrate Judge is accused of doing.
Nor has this Court employed Fils in the manner suggested by the plaintiffs; on the
contrary, when it has cited Fils, the Court has also – including in the cases cited by the
plaintiffs – stated that it “does not” or “will not” develop a party’s legal arguments. The
Court’s oft-repeated statement of the rule (found in over 100 of its opinions on Westlaw)
is that “‘there is no burden upon the district court to distill every potential argument that
could be made based upon the materials before it …,’ and the Court accordingly limits its
review to those arguments the parties have expressly advanced.” Coleman v. Unum
Group Corp., 207 F. Supp. 3d 1281, 1284 (S.D. Ala. 2016) (emphasis added) (quoting
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)). All of these
terms patently express lack of obligation, not lack of power, as do the additional
authorities cited by the plaintiffs. E.g., Pears v. Mobile County, 645 F. Supp. 2d 1062,
1081 n.27 (S.D. Ala. 2009) (this Court has “no burden” and is “under no duty” to create
arguments for the parties and thus “declines” and “will not” do so on their behalf).
8
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