Bituminous Casualty Corporation v. Hartford Casualty Insurance Company

Filing 157

ORDER granting in part and denying in part 148 Motion for Reconsideration by Magistrate Judge Kristen L. Mix on 2/21/14.(lag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00043-WYD-KLM
BITUMINOUS CASUALTY CORPORATION, an Illinois corporation,
Plaintiff,
v.
HARTFORD CASUALTY INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Hartford Casualty Insurance
Company’s Motion for Reconsideration of This Court’s December 19, 2013 Order
Denying Hartford a Two-Week Extension to Disclose an Expert [#148]1 (the “Motion”).
On February 10, 2014, Plaintiff filed a Response [#153]. On February 18, 2014, Defendant
filed a Reply [#155]. The Court has reviewed the Motion, the Response, the Reply, the
case file and relevant law, and is sufficiently advised in the premises. As discussed below,
the Motion [#148] is GRANTED in part and DENIED in part.
I. Background
This is an insurance coverage dispute brought by one insurer against another
insurer regarding the same insured. See Second Am. Complaint [#137] at ¶ 3. In short,

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“[#148]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.

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Plaintiff seeks to recover amounts it expended in the defense of the common insured in a
state court proceeding. See id. at ¶¶ 3, 16-19, 21.
On October 31, 2013, Defendant filed its Motion for a Two Week Extension to
Disclose Rule 26(a)(2) Expert Witnesses [#126] which was denied without prejudice on
December 19, 2013 [#138] (the “December Order”). In the December Order, the Court
explained that the standard for amending a scheduling order requires a showing of good
cause which the Tenth Circuit has explained “requires the moving party to show that it has
been diligent in attempting to meet the deadlines, which means it must provide an adequate
explanation for any delay.” December Order [#138] at 3; quoting Strope v. Collins, 315
F.App’x 57, 61 (10th Cir. 2009). The Court noted that:
Even after Plaintiff pointed out Defendant’s failure to address its diligence in
attempting to meet the expert disclosure deadline, see Response [#133] at
1, Defendant failed to describe any steps it took to comply with the deadline
or provide any argument that such steps meet the standard. See generally
Reply [#134]. While Defendant provides argument regarding the standard
governing the exclusion of evidence, id. at 3, that standard does not govern
a request to amend a scheduling order.
December Order [#138] at 3-4. Accordingly, the Court denied the motion without prejudice
and instructed Defendant that “[a]ny further attempt to extend the deadline must be
supported by Defendant’s showing of diligence in its efforts to meet the original deadline.”
Id. at 4.
In the instant Motion, Defendant asks the Court to reconsider the December Order.
Motion [#148] at 1. Defendant argues that “[a] motion for reconsideration filed prior to the
entry of judgment ‘falls within a court’s plenary power to revisit and amend interlocutory
orders as justice requires.’” Motion [#148] at 4 (quoting United Fire & Cas. Co. v. Boulder
Plaza Residential, LLC, No. 06-cv-00037-PAB-CBS, 2010 WL 420046, at *3 (D. Colo. Feb.
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1, 2010)). Defendant further argues that “[a] motion for reconsideration is appropriate when
a court agrees to the submission of additional facts for consideration with respect to a
previously denied motion.” Id. However, the December Order denied Defendant’s previous
motion without prejudice2, therefore, the Court will not engage in an analysis of the
standard for reconsideration of an order, rather, the Court will treat the Motion as a
separate motion seeking to amend the Scheduling Order.
II. Standard
As an initial matter, numerous courts have noted, and the undersigned agrees, that
a “Scheduling Order is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril.” Washington v. Arapahoe Cnty. Dep’t of Soc. Servs.,
197 F.R.D. 439, 441 (D. Colo. 2000) (citations omitted). Scheduling order deadlines “may
be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b).
Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to
the opposing party. Rather, it focuses on the diligence of the party seeking
leave to modify the scheduling order to permit the proposed amendment.
Properly construed, “good cause” means that scheduling deadlines cannot
be met despite a party's diligent efforts. . . . Carelessness is not compatible
with a finding of diligence and offers no reason for a grant of relief.
Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (internal
quotation and citation omitted); accord Summers, 132 F.3d at 604 (holding that “total
inflexibility is undesirable” in the context of a motion to adopt a new scheduling order).
The decision to modify the Scheduling Order “is committed to the sound discretion

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Denial of a non-dispositive motion without prejudice generally allows the movant to re-file
the motion at a later time. See, e.g., SEC v. Trujillo, No. 09-cv-00403-MSK-KMT, 2011 WL 197834,
at *3 (D. Colo. Jan. 20, 2011) (denying motion for order to show cause without prejudice with leave
to re-file).

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of the trial court.” Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987); see also
Benton v. Avedon Eng’g, Inc., No. 10-cv-01899-RBJ-KLM, 2013 WL 1751886, at *1 (D.
Colo. April 23, 2013). When exercising its discretion, the Court considers the following
factors: (1) whether trial is imminent; (2) whether the request to reopen or extend discovery
is opposed; (3) whether the non-moving party would be prejudiced; (4) whether the moving
party was diligent in obtaining discovery within the guidelines established by the Court; (5)
the foreseeability of the need for additional discovery in light of the time allowed for
discovery by the Court; and (6) the likelihood that the discovery will lead to relevant
evidence. Id. (citations omitted). With regard to the fourth factor, the Tenth Circuit has
explained that “[d]emonstrating good cause under [Rule 16(b)(4)] ‘requires the moving party
to show that it has been diligent in attempting to meet the deadlines, which means it must
provide an adequate explanation for any delay.’” Strope v. Collins, 315 F. App'x 57, 61
(10th Cir. 2009) (quoting Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994)). While “the
[Scheduling Order] defines a lawsuit’s boundaries in the trial court and on appeal, ‘total
inflexibility is undesirable.’” Summers, 132 F.3d at 604 (citations omitted). However, the
Court notes that a scheduling order plays an important role in the management of a case
and should not be unnecessarily amended. Cf. Washington v. Arapahoe Cnty. Dep’t of
Soc. Servs., 197 F.R.D. at 441 (noting that a “scheduling order is an important tool
necessary for the orderly preparation of a case for trial”). See also Rent-a-Center, Inc. v.
47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 101 (S.D.N.Y.2003) (“scheduling orders are
designed to offer a degree of certainty in pretrial proceedings, ensuring that at some point
both the parties and the pleadings will be fixed and the case will proceed”).

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III. Analysis
Here, Defendant argues that it was diligent in its efforts to retain and disclose an
expert witness prior to the deadline. Motion [#148] at 5. In support of this argument,
Defendant submitted the Affidavit of Kevin M. Lougachi [#148-2] (the “Lougachi Affidavit”)
which details the steps Defendant’s counsel took to find and retain an expert who could
offer an opinion regarding the release agreement at issue in this litigation. See generally
Lougachi Aff. [#148-2]. These efforts began approximately three weeks before the deadline
to disclose affirmative experts and included consulting with colleagues, consulting with
individuals in the insurance industry who counsel believed might be able to act as an expert
or who could identify someone else for the role, and consulting with co-counsel who
identified Bradley A. Levin as a potential expert one week prior to the affirmative expert
disclosure deadline. Id. at ¶¶ 3-10.
Plaintiff argues that the Motion should be denied because the information provided
in the Lougachi Affidavit “merely demonstrate[s] that [Defendant] devoted insufficient time
complying with its Court ordered expert disclosure deadline.” Response [#153] at 3.
Further, Plaintiff maintains that “[a]part from the claimed inability to locate an appropriate
expert, [Defendant’s] Motion does not identify any unforeseen event of circumstance
supporting the requested extension.” Id.
In its Reply, Defendant argues that the information it offers in support of the Motion
meets “the actual standard to show diligence (i.e., ‘an adequate explanation for any delay’)
and, therefore,” Plaintiff’s argument should be rejected and the Motion should be granted.
Reply [#155] at 3, 7-8. Defendant further argues that the Smith factors weigh in favor of
the requested extension. Id. at 8-9.
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As Defendant notes, a demonstration of good cause simply requires the movant to
“provide an adequate explanation for any delay.” Strope, 315 F. App'x at 61. The Court
finds that the Lougachi Affidavit provides an adequate explanation for Defendant’s delay
in retaining and disclosing Mr. Levin. Accordingly, the fourth Smith factor supports an
extension of the deadline.
Analyzing the other Smith factors leads the Court to conclude that the Motion should
be granted to the extent is seeks an extension of the affirmative expert disclosure deadline.
A trial date has not yet been set in this case. Therefore, the first Smith factor weighs in
favor of the requested extension. The Motion is opposed. Therefore, the second Smith
factor weighs against the requested extension. It does not appear that Plaintiff will be
prejudiced by the extension. Therefore, the third Smith factor weighs in favor of the
requested extension. In addition, the Lougachi Affidavit makes clear that Defendant could
not have foreseen the problems it encountered when trying to retain an expert witness.
Therefore, the fifth Smith factor weighs in favor of the requested extension. While Plaintiff
argues that Defendant should have begun its search for an expert more than three weeks
before the disclosure deadline, Response [#153] at 3, the Court will not make such a
finding at this time and such an argument, at best, would result in this factor being neutral.
Finally, the sixth Smith factor asks the Court to consider the likelihood that the discovery
will lead to relevant evidence. Here, Defendant requests an extension of the affirmative
expert disclosure deadline and asks the Court to accept Defendant’s late disclosure of Mr.
Levin. While there is a pending motion to dismiss counts three and four of Plaintiff’s
Second Amended Complaint, which Defendant admits would render Mr. Levin’s expert
testimony unnecessary, the Court has not yet ruled on that motion and the relevant issues
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remain in dispute. Therefore, the Court finds that the sixth Smith factor weighs in favor of
the requested extension.
IV. Conclusion
For the forgoing reasons,
IT IS HEREBY ORDERED that the Motion [#148] is GRANTED to the extent it seeks
a two-week extension of the affirmative expert disclosure deadline. Accordingly, the Court
deems Defendant’s November 14, 2013 disclosure of Mr. Levin timely. The Motion [#148]
is DENIED in all other respects.
The Court notes that the Discovery Deadline was February 28, 2014. See Minute
Order [#146] at 1. Further, in its Response, Plaintiff indicates that it has not deposed Mr.
Levin. Response [#153] at 4 n.1. To the extent Plaintiff wishes to depose Mr. Levin,
Plaintiff shall file a motion requesting either that his deposition be taken outside of the
Discovery Deadline or that the Discovery Deadline be extended.
Dated: February 21, 2014

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