Young v. Broaddus et al

Filing 17

ORDER granting 12 Motion to Dismiss Case (CASE DISMISSED). Signed by Honorable Jimm Larry Hendren on October 2, 2013. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ROBERT S. YOUNG

PLAINTIFF

v.

Case No. 13-5060

MARK E. BROADDUS and
CHUHAK & TECSON, P.C.

DEFENDANTS
ORDER

On the 1st day of October, 2013, the above referenced matter
came before the Court for a telephone conference call concerning
defendants’ Motion to Dismiss (doc. #12) and Plaintiff’s Motion
for Enlargment of Time to Disclose Liability Expert (doc. #14).
Based on the pleadings and the arguments of counsel, the Court
found and ordered as follows:
1.

The complaint herein, seeking damages for alleged legal

malpractice,

was

originally

filed

in

the

Circuit

Washington County, Arkansas on March 4, 2013.

Court

of

The matter was

removed to this Court on March 19, 2013 on the basis of diversity
jurisdiction.
2.

The Court’s Final Scheduling Order was entered on April

25, 2013 scheduling this matter for a jury trial on March 24,
2014.

In accordance to the Final Scheduling Order, discovery must

be complete no later than November 25, 2013; and, initial expert
witness disclosures were to be made no later than 90 days before
the close of discovery – or August 27, 2013.

1

3.

In the instant motion to dismiss, defendants state that

this matter should be dismissed pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure because the plaintiff has failed
to comply with Rule 26(a)(2) which requires a timely and proper
disclose of any expert witness.
Defendants

further

argue

that

because

the

deadline

for

disclosure of experts has passed, plaintiff cannot now retain an
expert to testify concerning the issues of liability and standard
of care presented in plaintiff’s complaint.

Defendants further

argue that expert testimony is necessary under Arkansas law to
present a prima facie case of negligence in connection with legal
malpractice.
4.

Defendants point to the history of this matter:

the

plaintiff previously filed a lawsuit based upon the same facts and
circumstances against the same two named defendants on September
23,

2010.

On

October

Scheduling

Order

Disclosure

cutoff

5,

2011,

establishing

this

January

deadline.

Court
13,

Defendants

entered

2012

as

timely

a

the

Final
Expert

disclosed

a

liability expert prior to the expiration of the January 13, 2012
deadline; but, the plaintiff failed to make a timely disclosure.
The matter was voluntarily dismissed by the plaintiff on March 7,
2012.

As set forth above, the instant matter was re-filed nearly

one year later, on March 4, 2013.
5.

Following the filing of defendants’ motion to dismiss,

the plaintiff filed a motion to enlarge the his time to disclose a
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liability

expert.

In

the

motion,

plaintiff

seeks

a

“modest

enlargement of time” for expert disclosure and notes that the
defendants did not take the plaintiff’s deposition until August
29, 2013; and, the plaintiff’s deposition was not received until
late in the afternoon on September 13, 2013.

Plaintiff argues

that “an expert opinion regarding all elements of the plaintiff’s
claims (duty, breach, causation, damages) would not have been
feasible in the absence of the plaintiff’s sworn testimony given
the complex issues involved.

Now that his testimony is available,

the appropriate expert report(s) can be provided in short order.”
6.

Plaintiff has also responded to the motion to dismiss.

In the response, plaintiff argues that the motion is premature
because

discovery

is

on-going;

dismissal

is

not

appropriate

procedurally; and, dismissal would be unjust and unduly harsh due
to the lack of prejudice.
7.

As set forth above, the defendants argue that, without

a belated enlargement of time within which the plaintiff can name
an expert1

the Court can exclude any expert testimony on the

plaintiff’s behalf and dismiss plaintiff’s claim under Rule 41(b)
of the Federal Rules of Civil Procedure because expert testimony
is necessary to prevail on a claim of malpractice.

Barnes v.

Everett, 95 S.W.3d 740 (2003).

1

The defendants have not responded to plaintiff’s motion for an enlargement of time. However, the plaintiff’s
motion notes that the defendants object to any such enlargement of time.

3

The Court agrees.

While the plaintiff argues that an expert

opinion would not have been feasible in the absence of plaintiff’s
deposition
Considering

testimony,
the

the

history

Court
of

a

finds
previous

that

excuse

filing

and

illogical.
voluntary

dismissal of this matter for identical reasons, the Court finds
that a belated extension of time within which to name an expert
should not be given, and finds that this case should, therefore,
be dismissed.
The Court, therefore, finds and orders that the defendants’
Motion to Dismiss (doc. #12) should be and hereby is granted.
IT IS SO ORDERED this 2nd day of October, 2013.

/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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