Reed v. Malone's Mechanical, Inc. et al
MEMORANDUM OPINION AND ORDER denying 34 Motion for Extension of Time to File, denying as moot 35 Motion to Amend/Correct, denying 36 Motion for Reconsideration and further denying 37 Motion for Reconsideration, filed by Malone's Mechanical, Inc. and Michael Jacobs. This case remains set for jury trial beginning 8/20/12. Signed by Honorable P. K. Holmes, III on July 30, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Case No. 2:11-CV-02135
MALONE’S MECHANICAL, INC.,
an Arkansas Corporation;
and MICHAEL JACOBS
DEFENDANTS/THIRD PARTY PLAINTIFFS
GILBERT PROJECT SERVICES, INC.
THIRD PARTY DEFENDANT
MEMORANDUM OPINION AND ORDER
Currently before the Court are Defendants/Third Party Plaintiffs Malone’s Mechanical, Inc.
and Michael Jacobs’s (collectively, “Malone’s”) Motion for Extension of Deposition Designation
Date or for Reconsideration of Order on Motion to Quash (Doc. 34); Motion to Amend/Correct
Motion for Extension of Deposition Designation Date or for Reconsideration of Order on Motion
to Quash (Doc. 35); Motion for Reconsideration (Doc. 36); and Amended Motion for
Reconsideration (Doc. 37). All four of Malone’s above-referenced Motions treat the same subject
matter, namely, the Court’s decision on July 26, 2012 to grant Plaintiff Michael Reed’s Motion to
Quash (Doc. 26) the deposition of Dr. James Zarr, a Kansas City-based physician. Malone’s
disagrees with the Court’s Order quashing the deposition and has now filed these Motions urging
the Court to reconsider. For the reasons set forth below, Malone’s Motions (Docs. 34-37) are
Although not specifically stated in its Motions, the Court presumes that Malone’s seeks
reconsideration of the Court’s July 26, 2012 Order pursuant to Federal Rule of Civil Procedure
60(b). Under Rule 60(b), a party may be relieved from an order of the Court under certain
enumerated circumstances, including the existence of “mistake, inadvertence, surprise, or excusable
neglect.” Fed. R. Civ. P. 60(b). Rule 60(b) “provides for extraordinary relief which may be granted
only upon an adequate showing of exceptional circumstances.” United States v. Young, 806 F.2d
805, 806 (8th Cir. 1986).
None of the “exceptional circumstances” envisioned by Rule 60(b) for finding that
reconsideration may be warranted are present in this case. Malone’s presents no compelling reasons
for failing to depose Dr. Zarr within the established deadlines. Indeed, Malone’s admits that Dr. Zarr
was disclosed by Plaintiff as an expert witness more than two years ago, in January 2010, and that
Malone’s chose not to depose Dr. Zarr in Kansas City earlier in the litigation, when other witnesses
in the case were being deposed there. (Doc. 27). Malone’s gave notice to Plaintiff of Dr. Zarr’s
deposition on July 20, 2012 (Doc. 26-1), well after the Court’s June 7, 2012 discovery deadline. The
Court’s Final Scheduling Order clearly states the following:
“Discovery should be completed no later than June 7, 2012. The parties may
conduct discovery beyond this date if all parties are in agreement to do so; however,
the Court will not resolve any disputes in the course of this extended discovery.”
(Doc. 12). The discovery deadline was then extended to July 7, 2012, on joint motion of the parties.
Though Malone’s protests that “medical depositions entail substantial expense that lawyers
and clients like to defer until it is practically certain that trial is imminent,” such a rationale does not
justify or excuse Malone’s failure to adhere to the deadlines imposed by the Court’s Final Scheduling
Order. Moreover, Malone’s should not have presumed that Plaintiff would agree to extend the
discovery deadline for Malone’s convenience less than a month before trial. (Doc. 27).
Malone’s contends in its briefing to the Court that depositions taken to preserve the trial
testimony of an unavailable witness should be exempt from the pre-trial discovery deadline imposed
by the Court. Malone’s represents that Dr. Zarr will be unavailable for trial of this matter due to the
fact that he lives in Kansas City, some distance from the courthouse where this matter will be tried,
and he has a busy schedule. Id. The Court finds that, absent a showing of emergency or other
compelling reason to allow additional discovery beyond the deadline set by the Court, no distinction
shall be made between a deposition used for information gathering and a deposition to be used to
preserve the trial testimony of a witness. “Neither the Rules of Civil Procedure nor the Rules of
Evidence make any distinction between discovery depositions and depositions for use at trial.”
Henkel v. XIM Products, Inc., 133 F.R.D. 556, 557 (D. Minn. 1991). Other courts that have
examined this issue have similarly concluded that the court’s ability to manage litigation would be
rendered problematic if trial depositions were not governed by the same pretrial schedule as other
depositions. Id. at 558; Insignia Systems, Inc. v. News America Marketing Instore, Inc., 2011 WL
282632, *2 (Jan. 26, 2011 D. Minn.) (“. . . because defendants had an opportunity to depose the
witness, and chose not to do so, they could not go outside the pretrial schedule and depose him at
a ‘trial deposition’ shortly before trial”).
Furthermore, as reflected in the Court’s July 26, 2012 Order, if the deposition of Dr. Zarr
were to be taken on July 31, 2012, as noticed, the parties could not possibly comply with the
deposition designation deadlines set forth in the Final Scheduling Order.
Accordingly, for the reasons articulated above, Malone’s Motion for Extension of Deposition
Designation Date or for Reconsideration of Order on Motion to Quash (Doc. 34) is DENIED;
Malone’s Motion to Amend/Correct Motion for Extension of Deposition Designation Date or for
Reconsideration of Order on Motion to Quash (Doc. 35) is DENIED AS MOOT; and Malone’s
Motion for Reconsideration (Doc. 36) and Amended Motion for Reconsideration (Doc. 37) are also
DENIED. Any discovery conducted after the deadline imposed by the Court’s Final Scheduling
Order may only occur if all parties are in agreement. This case remains set for jury trial beginning
on August 20, 2012.
IT IS SO ORDERED this 30th day of July, 2012.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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