Smith v. RJM Acquisitions Funding, LLC
Filing
35
ORDER taking under advisement 31 Plaintiff's Motion to Extend the Deadlines Contained in the Civil Case Plan and Order Deadlines, SEE ORDER FOR DETAILS; granting 32 Plaintiff's Motion to Compel Mediation. The parties are ordered to mediate no later than 8/10/2014. Signed by Magistrate Judge Carol Mirando on 7/10/2014. (ALB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TERRY L. SORENSON SMITH,
Plaintiff,
v.
Case No: 2:13-cv-502-FtM-38CM
RJM ACQUISITIONS FUNDING,
LLC,
Defendant.
ORDER
Before the Court is Plaintiff’s Motion to Extend the Deadlines Contained in the
Civil Case Plan and Order Deadlines (“Motion for Extension”) (Doc. 31), filed on June
19, 2014, and Plaintiff’s Motion to Compel Mediation (“Motion to Compel”) (Doc. 32),
filed on June 20, 2014, and Defendant’s Response to Plaintiff’s Motion to Compel
Mediation (Doc. 34), filed on July 3, 2014.
I.
Plaintiff’s Motion for Extension
Plaintiff requests that the Court extend the discovery deadline1 until August
31, 2014 and the deadlines for disclosure of expert reports until thirty days following
the discovery deadline. Doc. 31 at 1. Although the Local Rule 3.01(g) certification
indicates that Defendant opposes the motion, no opposition was filed and the time for
doing so has expired.
1
Plaintiff specifically requests extension of the “discovery deadline for fact witnesses”
but the Case Management and Scheduling Order does not provide separate deadlines for fact
and expert discovery. The Court therefore construes this as a request to extend the deadline
for completing all discovery.
The Case Management and Scheduling Order (Doc. 23) states “[m]otions for an
extension of other deadlines contained in this order, including motions for an
extension of the discovery period, are disfavored” and “[t]he movant must show that
the failure to complete discovery is not the result of lack of diligence in pursuing
discovery.” Doc. 23 at 4. At the outset, the Court notes that the Case Management
and Scheduling Order established January 6, 2014 as the deadline for Plaintiffs
disclosure of expert reports and February 6, 2014 as the deadline for Defendant’s
disclosure of expert reports. Doc. 23 at 1. Upon review of the docket, the parties
neither requested nor were granted extensions of those deadlines, and thus it is
unclear why the disclosures have not already occurred in accordance with the
deadlines established by the Court. It is also unclear why Plaintiff failed to disclose
the report in the approximately six months that have passed since the expiration of
the deadline.
Rule 6, Federal Rules of Civil Procedure, “requires a showing of ‘excusable
neglect’ for an extension of a passed deadline.” Auto-Owners Ins. Co. v. Ace Elec.
Serv., Inc., 648 F.Supp.2d 1371, 1375 (M.D. Fla. 2009); Fed. R. Civ. P. 6(b)(1)(B).
Plaintiff’s counsel’s purported reason for seeking extension of the expert disclosure
deadlines—other appellate and litigation matters requiring attention—does not
constitute excusable neglect which would allow the Court to extend those deadlines.
Although the Motion for Extension was filed prior to the discovery deadline, and
therefore the standard of “good cause” rather than “excusable neglect” applies, the
-2-
fact that Plaintiff’s counsel has other pending matters requiring attention is arguably
not good cause for seeking an extension, either.
Furthermore, Plaintiff has not requested an extension of the dispositive
motions deadline. Extending the discovery deadline to August 31, 2014 without a
corresponding extension of the dispositive motions deadline will require the parties
to file dispositive motions prior to the close of discovery.
The Court denied
Defendant’s Motion for Summary Judgment on grounds that it was prematurely filed
prior to the close of discovery. See Doc. 33 at 2. Thus, the Court will not now extend
the deadlines to require such premature filing.
Without an extension, however,
discovery will close immediately.
Therefore, in light of Plaintiff’s Motion for Extension, the need to extend
additional deadlines and Defendant’s failure to respond to Plaintiff’s Motion for
Extension, the parties are ordered to meet and confer no later than July 21, 2014 to
determine mutually-agreeable deadlines for the remaining case management
deadlines and those passed deadlines sought to be extended and file a proposed case
management plan with the Court no later than July 25, 2014. The parties may meet
and confer by telephone in order to determine mutually agreeable dates to be set forth
in the parties’ proposed case management plan.
II.
Plaintiff’s Motion to Compel
Plaintiff requests that the Court enter an order compelling Defendant to
participate in mediation and requiring the parties to mediate within thirty (30) days
of the entry of that order.
Doc. 32 at 3.
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In support of the motion, counsel for
Plaintiff states that he has “attempted on at least three occasions to schedule
mediation with the Defendant, only to not have emails or telephone calls returned”
and informs the Court that “the most current response from Defense counsel . . . was
simply to state that mediation could be scheduled only after their Motion for
Summary Judgment is ruled on.” Doc. 32 at 1, 2. The motion to compel also states
that the selected mediator, James Nulman, does not have any dates available prior
to the July 10, 2014 mediation deadline. Doc. 32 at 2; see Doc. 23.
Defendant responds that it never represented it was unwilling to participate
in mediation, but instead sought to postpone mediation until after the Court ruled on
its summary judgment motion to avoid incurring unnecessary expenses. Doc. 34 at
1. A refusal to mediate prior to the Court’s resolution of pending summary judgment
motions is not good cause for a failing to meet the Court’s mediation deadline. See
Flynn v. Polk County, No. 8:11-cv-2054-T-33AEP, 2013 WL 425834, at *2 (M.D. Fla.
Feb. 4, 2013) (“[T]he mere fact that a summary judgment motion is pending does not
provide good cause for further extending the mediation deadline and delaying the
trial . . . .”).
Since Plaintiff’s Motion to Compel was filed, the Court denied Defendant’s
Motion for Summary Judgment.
See Doc. 33.
An extension of the mediation
deadline is nevertheless required given Plaintiff’s representation that the selected
mediator is not available prior to the current deadline. The Court will therefore
grant Plaintiff’s Motion to Compel and require the parties to mediate no later than
August 10, 2014.
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ACCORDINGLY, it is hereby
ORDERED:
1.
Plaintiff’s Motion to Extend the Deadlines Contained in the Civil Case
Plan and Order Deadlines (Doc. 31) is TAKEN UNDER ADVISEMENT. The parties
are ordered to meet and confer no later than July 21, 2014 and submit a proposed
case management plan to the Court no later than July 25, 2014. The parties may
meet telephonically for the purpose of preparing the case management plan.
2.
Plaintiff’s Motion to Compel Mediation (Doc. 32) is GRANTED. The
parties are ordered to mediate no later than August 10, 2014.
DONE and ORDERED in Fort Myers, Florida on this 10th day of July, 2014.
Copies:
Counsel of record
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