Owners Insurance Company v. 11380 East Smith Road, LLC et al

Filing 122

ORDER by Chief Judge Philip A. Brimmer on 9/7/2021, re: 113 Plaintiff's Objection is OVERRULED; 108 the Recommendation of United States Magistrate Judge is ACCEPTED; 120 defendants Objection is OVERRULED; 115 the Recommendation of United States Magistrate Judge is ACCEPTED; and 116 Defendants Motion to Continue is DENIED. (sphil, )

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N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-00346-PAB-MEH
OWNERS INSURANCE COMPANY,

Plaintiff,
v.
11380 EAST SMITH ROAD, LLC, and
3555 MOLINE, LLC,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s Objection [Docket No. 113] to the
Magistrate Judge’s Recommendation [Docket No. 108], defendants’ Objection [Docket
No. 120] to the Magistrate Judge’s Recommendation [Docket No. 115], and
Defendants’ Motion to Continue [Docket No. 116].
I. OBJECTIONS
The Court reviews a magistrate judge’s order on a non-dispositive matter under
the clearly erroneous standard. See Fed. R. Civ. P. 72(a). Therefore, the Court must
“affirm unless it ‘. . . is left with the definite and firm conviction that a mistake has been
committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The facts relevant to both objections are not disputed. T he Final Pretrial Order
(“FPTO”) was entered on December 18, 2019. See Docket No. 72. Dispositive motions

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were to be filed on December 16, 2018, see Docket No. 36, and no party filed such a
motion. After originally being set for a trial in summer 2020, the trial preparation
conference and trial were reset to October 2, 2020 and October 26, 2020, respectiv ely.
See Docket No. 77. Motions to exclude expert witnesses were to be filed sixty days
before the trial preparation conference, and plaintiff filed a motion to exclude one of
defendants’ experts. See Docket No. 78. The trial was continued again, to the
currently scheduled dates of October 1, 2021 for the trial preparation conference and
October 18, 2021 for trial. See Docket No. 93. On March 17, 2021, the Court granted
plaintiff’s motion to exclude defendants’ damages expert, Edward Fronapfel. See
Docket No. 97. On July 12, 2021, plaintiff filed a motion for leave to file a motion for
summary judgment based on the premise that, without a damages expert, defendants
could not make out their claims. See Docket No. 100. On August 2, 2021, defendants
filed a motion for leave to designate a new damages expert. See Docket No. 109. The
magistrate judge recommended denying both requests. See Docket Nos. 108, 115.
The parties have filed objections, arguing that each of their requests should be granted.
See Docket Nos. 113, 120. The Court finds no error in either recommendation.
A. Motion for Leave to File Motion for Summary Judgment
Plaintiff objects to the magistrate judge’s recommendation that it should not be
permitted to file an out-of-time motion for summary judgment. See Docket No. 113.
The magistrate judge noted that plaintiff’s motion was likely untimely, given that plaintiff
waited four months to file a motion for leave to file a summary judgment motion. See
Docket No. 108 at 5-6. Moreover, the magistrate judge concluded that, even if it was

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timely, plaintiff should not be permitted to file an out-of-time summary judgment motion.
The magistrate judge determined that the standards discussed in Koch v. Koch
Industry, Inc., 203 F.3d 1202 (10th Cir. 2000), did not weigh in favor of permitting
plaintiff to modify the FPTO. See Docket No. 108 at 6-9. First, as to prejudice, the
recommendation found that defendants would be prejudiced by the dispositive motion
because defendants would need to both brief a motion and prepare for trial with the trial
date fast approaching. See id. at 6-7. Second, regarding curing the prejudice, the
magistrate judge noted that only the Court could reschedule the trial. Id. at 7. Third,
the magistrate judge found that, even if a summary judgment motion would simplify the
trial, the disruptive effect of such a motion this close to the trial date outweighed any
simplification, particularly because damages would need to be addressed at trial in any
event. Id. at 7-8. Finally, the magistrate found no bad faith, although he concluded that
plaintiff should have filed the motion earlier.
Plaintiff objects to all but the bad faith finding. As to the first factor, plaintiff
argues that defendants cannot be prejudiced by a motion that addresses a topic that
must be determined at trial. See Docket No. 113 at 3. In support of that argument,
plaintiff cites a decision from the Northern District of Iowa. See id. (citing Eischeid v.
Dover Constr., Inc., 217 F.R.D. 448, 455 (N.D. Iowa 2003)). The Court is unpersuaded.
First, Eischeid is not binding in the District of Colorado, so it is unclear how the
magistrate judge could have applied the incorrect legal standard from a district court
decision outside the Tenth Circuit. Second, Eischeid is inapposite. There, the court
reasoned that it “could be persuaded” that, in som e circumstances, certain purely legal
issues presented in a summary judgment motion “might present the most efficient”

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means of addressing the issues. See 217 F.R.D. at 455. The court ultimately
determined that it made sense to allow the belated summary judgment motion because
the legal question of whether there were “certain nondelegable duties” had to be
determined by the court. Id. at 455-56. While it is true that a failure of defendants to
prove damages may result in the court granting plaintiff’s Rule 50 motion at trial, it is
also true that the probability of this result is a factor the parties can take into account in
settlement negotiations, mitigating plaintiff’s specter of wasted time and money spent
on a trial that never makes it to the jury. Moreover, plaintiff’s failure to seek leave
earlier mitigates against granting its motion: as the Tenth Circuit noted in Koch, a
party’s “failure to raise [a] specific defense at an earlier possible juncture cuts deeply
against his claim of manifest injustice.” See 203 F.3d at 1223 (citations and quotations
omitted).
Second, plaintiff argues that, while it may not have been in the magistrate
judge’s power to reschedule the trial, it is within the Court’s power to reschedule the trial
to permit it to file a summary judgment motion. However, the effect of continuing the
trial would be to further delay a trial that the pandemic has continued several times
before and therefore contribute to a backlog of cases.
Third, plaintiff argues that the recommendation is “relatively dismissive” on the
disruptiveness of permitting plaintiff to file a motion for summary judgment. See Docket
No. 113 at 4-5. But plaintiff offers no argument why the magistrate judge was actually
wrong or was clearly erroneous. Accordingly, this objection is overruled.
In sum, plaintiff has offered no argument as to why the magistrate judge’s
conclusion is clearly erroneous and, instead, simply disagrees with the result. The

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Court finds no error in the recommendation and overrules plaintiff’s objections.
B. Motion to Designate New Expert Witness
Defendants object to the magistrate judge’s conclusion that they should not be
permitted to designate a new expert witness. See Docket No. 120. Like plaintiff’s
motion, the magistrate judge first concluded that defendants’ motion was untimely
because they waited four and a half months after the exclusion of their expert to
attempt to designate a new one. See Docket No. 115 at 5-6. Moreover, the magistrate
judge determined that, under the Koch factors, defendants failed to demonstrate that
they should be permitted to amend the FPTO and designate a new expert witness. As
to the prejudice prong, the recommendation found that, although plaintiff may be
familiar with the proposed expert, Andrew Behrens, Mr. Behrens was never disclosed
as an expert, but only as a non-expert witness who might be called at trial. See id. at 67. Accordingly, plaintiff never received a full disclosure of Mr. Behrens’s opinions, had
no opportunity to depose him, and no ability to challenge his opinions pursuant to
Federal Rule of Evidence 702, things allowed by Federal Rule of Civil Procedure
26(a)(2)(C). See id. at 7. With such little time between disclosure and trial, the
magistrate judge concluded that plaintiff would be prejudiced.
Regarding the ability to cure the prejudice, the recommendation concluded that it
would be difficult to complete the procedures contemplated by Rule 26 in the time
before trial, and the magistrate judge could not move the trial date. Id. at 8. As to the
disruptive effect, the magistrate judge reasoned that, given all the procedures required
by Rule 26, and the little time before trial, it would be a significant disruption to the trial
process. Id. at 8-9. Finally, while the magistrate judge found no bad faith, he did find

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that defendants were slow in choosing to replace Mr. Fronapfel.
Defendants make three objections, although they do not clearly explain how
those objections correspond to any of the Koch factors. See Docket No. 120 at 3-7.
First, defendants suggest that plaintiff is familiar with Mr. Behrens and, because of that
familiarity, plaintiff somehow is not entitled to the full protection of Rule 26. See id. at 34. Second, defendants argue that the magistrate judge misapplied Summers v.
Missouri Pacific R.R. System, 132 F.3d 599 (10th Cir. 1997). See id. at 4-6. Finally,
defendants appear to be arguing that the magistrate judge misapplied the Koch factors
based on the prior two arguments. See id. at 7-8. The Court finds none of the
objections persuasive.
First, as to plaintiff’s apparent familiarity with Mr. Behrens, defendants fail to
explain how that familiarity corresponds to plaintiff’s ability to rebut newly disclosed
expert opinions. Even if Mr. Behrens did some claim adjusting for this case, and
plaintiff has deposed him in other litigation, that has no bearing on whether plaintiff had
the opportunity to depose him here, see a full report of his opinions, and challenge his
report pursuant to Rule 702. Indeed, def endants offer no legal authority for the
proposition that “familiarity” with a witness is somehow relevant to amending a FPTO so
close to trial. Moreover, the Court finds that Mr. Behrens’s involvement with the trial
prior to Mr. Fronapfel being excluded actually cuts against defendants being able to
designate him as an expert witness. If Mr. Behrens’s testimony would have been
cumulative to Mr. Fronapfel’s testimony, it should have been easy for defendants to
designate Mr. Behrens shortly after Mr. Fronapfel was excluded. Instead, defendants
waited nearly five months to ask to designate him, and did so only after plaintiff sought

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to dismiss defendants’ claims. Accordingly, this objection is overruled.
Next, defendants contend that the magistrate judge misapplied the Tenth
Circuit’s decision in Summers. See Docket No. 120 at 4. In Summers, the new expert
was to be designated eighty days before trial was to commence. See 132 F.3d at 605.
But that is where the similarity ends. Contrary to the defendants here, the plaintiffs in
Summers “acted promptly to find new experts.” Id. The plaintiffs had their experts
excluded on August 25 and a motion identifying the new experts and moving for their
designation was filed on September 15. Id. Four days later, that expert examined the
plaintiffs, and by the time of the hearing on the motion, the plaintiffs had submitted a
preliminary report of the new expert. Id. Here, defendants waited nearly five months –
even though they now argue that Mr. Behrens is known to all – and still have not
provided a report to the Court. And, contrary to the plaintiffs in Summers, defendants
do not explain how the Court and plaintiff would have sufficient time to review Mr.
Behren’s opinions. Rather, they suggest that plaintiff should be permitted to depose
Mr. Behrens and then challenge his testimony at trial. Accordingly, the Court finds that
the magistrate judge properly distinguished Summers and overrules the objection.
Finally, defendants argue that the magistrate judge misapplied the Koch factors
because Summers demonstrates that defendants are permitted to designate a new
expert, and plaintiff does not need the full protection of Rule 26. As just concluded,
Summers is inapposite. As to Rule 26, defendants offer no authority for the proposition
that plaintiff is not entitled to the protections of Rule 26 simply because defendants
were slow in designating a new expert. Accordingly, the objection is overruled.

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II. MOTION TO CONTINUE
In a second attempt to seek a continuance, defendants file a motion to continue
based on United States v. West, 828 F.2d 1468 (10th Cir. 1987). See Docket No. 116
at 8-11. Under West, a court is to examine: “the diligence of the party requesting the
continuance; the likelihood that the continuance, if granted, would accomplish the
purpose underlying the party's expressed need for the continuance; the inconvenience
to the opposing party, its witnesses, and the court resulting from the continuance; the
need asserted for the continuance and the harm that appellant might suffer as a result
of the district court's denial of the continuance.” West, 828 F.2d at 1470. The Court
finds that the factors do not weigh in favor of granting a continuance.
First, the diligence of the party requesting the continuance weighs strongly in
favor of denying the motion. Defendants argue that they were diligent because they
filed the motion to continue a week after the recommendation denying the motion to
designate a new expert. See Docket No. 116 at 9. But this argument ignores the fact
that the reason defendants want a continuance is because defendants waited nearly
five months to attempt to designate a new expert witness. Accordingly, this factor
weighs strongly in favor of denying the motion.
Second, as to usefulness of the continuance, the Court finds that, under the
circumstances of this case, this factor is neutral. While defendants are correct that a
continuance would give plaintiff time to depose Mr. Behrens and complete the process
contemplated by Rule 26, there is no guarantee that parts of Mr. Behrens’s opinions
would not be excluded. The parties could be back in the same position a year from
now.

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Third, the Court finds that inconvenience to plaintiff weighs in favor of denying
the motion. Defendants argue that there is no inconvenience in continuing the trial
because plaintiff also seeks to continue the trial to file a motion for summary judgment.
See id. at 6. But that is not the only inconvenience to consider. As noted above, a
continuance would postpone a trial that has already been continued several times. If a
criminal case or pandemic-related reasons do not prevent this case from being tried in
October, the Court has a strong interest in moving its docket forward. Therefore, this
factor weighs in favor of denying the motion.
Fourth, as to need and prejudice, the Court f inds that this factor weighs slightly in
favor of granting the motion. The need for defendants to have a damages expert is
high, and, without one, proving their case will be difficult, resulting in prejudice. But that
is almost always the consequence of a court excluding a damages expert. The remedy
to this situation is not a continuance of a trial, but the affected party more carefully
choosing its experts and making sure their opinions are admissible. Moreover, here,
defendants failed to timely designate a new proposed expert, and, therefore, further
contributed to the position they find themselves in.
The West factors weigh against a continuance and the Court will deny the motion
to continue. However, in the event that a criminal case bumps the October 2021 trial,
the Court will allow the parties to file additional motions on these issues.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff’s Objection [Docket No. 113] is OVERRULED. It is
further

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ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 108] is ACCEPTED. It is further
ORDERED that defendants’ Objection [Docket No. 120] is OVERRULED. It is
further
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 115] is ACCEPTED. It is further
ORDERED that Defendants’ Motion to Continue [Docket No. 116] is DENIED.

DATED September 7, 2021.

BY THE COURT:

______________________________
PHILIP A. BRIMMER
Chief United States District Judge

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