Nixon et al v. Costner Excavating Inc et al

Filing 155

ORDER re 136 MOTION to Continue and 92 MOTION for Ruling (to Defer). The parties may engage in limited discovery. The Court extends the discovery ddl for this addtl discovery by 90 days. The parties are directed to contac t the Court and request a telephone conference if they dispute whether requested discovery falls within the scope of this Court's Order. The Court will set new discovery ddls, motions ddls, supplemental briefing ddls, as well as a new trial date, by a Second Amended Final Scheduling Order. The Court denies the oral motion to depose all plaintiffs who could be called to testify at trial without prejudice.Signed by Judge Kristine G. Baker on 4/16/13. (kpr)

IN THE UNITED STATES DISTRICT COURTS
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CORY NIXON, et al.
v.

PLAINTIFFS
Case No. 4:11-cv-00578-KGB

COSTNER EXCAVATING, INC., et al.

DEFENDANTS
ORDER

On April 4, 2013, the Court conducted a status conference to discuss the request for
additional discovery and all pending motions. Specifically, the Court heard argument regarding
defendants’ second motion to defer plaintiffs’ motion for partial summary judgment until after
completion of discovery (Dkt. No. 92) and defendants’ motion for continuance which requests
additional time to complete discovery (Docket No. 136). Defendants also made an oral motion
to depose all of the plaintiffs who could be called to testify at trial. Plaintiffs objected to this oral
motion. The Court also raised with counsel how long the parties anticipate the trial to last.
The Court ruled that plaintiffs and defendants may engage in limited discovery on the
retaliation claim recently added by plaintiffs and on all claims against separate defendant
LaDonna Costner. 1 To the extent the parties dispute whether requested discovery falls within the
scope of this Court’s Order, they are directed to contact the Court and request a telephone
conference with the Court to address the matter. The Court extended the discovery deadline for
this additional discovery by 90 days. The Court will set new discovery deadlines, motions
deadlines, supplemental briefing deadlines, as well as a new trial date, by a Second Amended
Final Scheduling Order.
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On March 25, 2013, the Court entered an Order granting separate defendant LaDonna
Costner’s motion for continuance (Dkt. No. 150). Ms. Costner was added as a defendant on
February 21, 2013; this was after the close of an extended discovery period and after the filing
deadline for dispositive motions.

At the hearing, the Court took under advisement defendants’ oral motion to depose all of
the plaintiffs who could be called to testify at trial. The Court now denies that motion without
prejudice. The Court on April 6, 2012, certified a collective action with respect to persons “who
were employed as dump truck drivers for Defendants since July 21, 2008” (Dkt. No. 45). The
parties engaged in 10 months of discovery. Defendants requested and were granted an extension
of time to complete discovery (Dkt. No. 122). At no time during that discovery period, and not
even when requesting additional time to complete discovery, did defendants make this request of
the Court – a request to depose all plaintiffs who could be called to testify at trial. Defendants
first made this request of the Court after discovery closed. Defendants chose to follow a
discovery strategy that did not include these depositions. At the hearing, defendants offered no
specific reason unique to this case or the claims in this case to justify such a request. They
offered no reason to explain the timing of their belated request. For these reasons, defendants’
motion to depose all of the plaintiffs who could be called to testify at trial is denied without
prejudice. Defendants may renew this request if warranted based on information developed
during the course of additional discovery permitted by this Court’s Order or as the case
progresses.
IT IS SO ORDERED this the 16th day of April, 2013.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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