AFI Holdings of Illinois, LLC v. Waterman Broadcasting

Filing 59

ORDER granting 51 Plaintiff AFI Holdings of Illinois, LLC's Motion to Extend the Time to Disclose Expert Report of Briggs P. Stahl; denying 53 Defendants Waterman Broadcasting Corp., Peter Busch, Lisa Spooner, and Graham R. Hunter's Motion to Strike Expert Witnesses and Expert Witness Disclosures of Plaintiff. Plaintiff shall have up to and including October 22, 2018 to provide its final expert disclosure. Defendants shall have up to and including November 22, 2018 to provide t heir expert disclosures. The discovery deadline is extended to December 7, 2018 for the limited purpose of expert depositions. All other directives and deadlines set forth in the CMSO (Doc. 17) remain unchanged. Signed by Magistrate Judge Carol Mirando on 10/15/2018. (APH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AFI HOLDINGS OF ILLINOIS, LLC,
Plaintiff,
v.

Case No: 2:17-cv-491-FtM-99CM

WATERMAN BROADCASTING,
GRAHAM HUNTER, LISA
SPOONER, PETER BUSCH and
JOSEPH DORN,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff AFI Holdings of
Illinois, LLC’s Motion to Extend the Time to Disclose Expert Report of Briggs P. Stahl
filed on September 17, 2018 and Defendants Waterman Broadcasting Corp., Peter
Busch, Lisa Spooner, and Graham R. Hunter’s Motion to Strike Expert Witnesses
and Expert Witness Disclosures of Plaintiff filed on September 25, 2018. Docs. 51,
53. Defendants filed a response in opposition to Plaintiff’s Motion on September 24,
2018, and Plaintiff filed a response in opposition to Defendants’ motion to strike on
October 9, 2018. Docs. 52, 55. For the reasons stated below, the motion to extend
the expert disclosures deadline is granted and the motion to strike is denied.
Rules 6 and 16 of the Federal Rules of Civil Procedure require a showing of
good cause for extending a deadline or modifying a court’s scheduling order. Fed. R.
Civ. P. 6(b), 16(b)(4). “The diligence of the moving party should be considered in
determining whether there is good cause to extend a deadline.” Jozwiak v. Stryker

Corp., No. 6:09-cv-1985-Orl-19GJK, 2010 WL 743834, at *2 (M.D. Fla. Feb. 26, 2010).
In other words, the moving party must demonstrate it could not meet the deadline
despite its diligent efforts. Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir.
1998); Idearc Media Corp. v. Kimsey & Assocs., P.A., No. 807-CV-1024-T-17EAJ, 2009
WL 413531, at *2 (M.D. Fla. Feb. 18, 2009). District courts have broad discretion
when managing their cases, including discovery and scheduling. Johnson v. Bd. of

Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001). Rule 37 provides the
court with discretion to impose sanctions for a party’s failure to timely disclose
information or a witness as required by Rule 26(a) and (e). Fed. R. Civ. P. 37(c).
“Witness preclusion is a harsh sanction that should be imposed sparingly[.]” St. Cyr

v. Flying J. Inc., No. 3:06-cv-13-J-33TEM, 2007 WL 2936243, at *4 (M.D. Fla. Oct. 9,
2007).
Plaintiff’s original expert disclosures deadline was August 17, 2018. Doc. 17.
Plaintiff previously requested, and the Court granted, an extension to September 17,
2018. Docs. 47, 50. On the new deadline, Plaintiff filed a second motion to extend
its expert disclosures deadline. Doc. 51. Plaintiff requests an extension of “at least
30 days” from the September 17, 2018 deadline to disclose the report of an expert on
damages. Id. at 1, 6. Plaintiff tendered expert disclosures of three other experts
on September 17, 2018.

Id. at 2-3.

The extension allegedly is necessitated by

Plaintiff’s inability to retrieve bank statements that will assist the expert in
determining the amount Plaintiff lost due to Defendants’ allegedly defamatory
statements that Plaintiff’s hemp product was actually marijuana.

-2-

Id. at 3-4.

Plaintiff states good cause exists because the bank was unable to respond to its
subpoena until September 25, 2018. Id. at 4. Defendants argue that an extension
will unduly prejudice them because they will be unable to depose Plaintiff’s expert on
damages before the discovery deadline. Doc. 52 at 2.
Defendants’ motion to strike requests that the Court strike the expert reports
Plaintiff tendered on September 17, 2018 relating to experts on toxicology and
marijuana/hemp. Doc. 53 at 1-2. Defendants seek to strike the reports because
Plaintiff’s previous motion for extension “focused on the need for an extension of the
disclosure deadline for a damages expert.” Id. at 2 (emphasis in original). Plaintiff
responds that its motion requested an extension to serve expert reports relating to at
least an expert on damages, not solely an expert on damages, and the motion to strike
should be denied. Doc. 55 at 4-5.
The Court finds good cause to extend the expert disclosures deadline and will
deny the motion to strike experts. Plaintiff has shown some diligence in attempting
to meet the Court’s deadlines and obtain the bank statements at issue; and contrary
to Defendants’ assertions, the deadlines may be extended without delaying the trial
term. See Doc. 51 at 3-4; Doc. 52 at 9-10. Further, Plaintiff has disclosed reports
of two experts and, because the subpoenaed materials were received September 25,
2018, should be prepared to disclose the damages expert report immediately. See
Doc. 51 at 3-4. The Court will deny the motion to strike because Plaintiff disclosed
the other expert reports by the September 17, 2018 deadline, and the Court’s Order
extending the deadline did not state that Plaintiff was limited to disclosing only

-3-

certain types of experts by that deadline. See Doc. 51 at 2-3; Doc. 50. Further,
denying the motion to extend the deadline or granting the motion to strike would
effectively preclude Plaintiff from presenting witnesses at trial on important issues,
including damages, and “witness preclusion is a harsh sanction that should be
imposed sparingly[.]”

St. Cyr, 2007 WL 2936243 at *4.

Plaintiff is cautioned,

however, that the Court may be less lenient in the future if it fails to comply with the
Court’s orders and deadlines set forth in the Case Management and Scheduling
Order. “The Court’s deadlines are not suggestions that can be ignored.” Perez v.

Garrow, No. 2:14-cv-67-FTM-38CM, 2014 WL 4285384, at *1 n.3 (M.D. Fla. Aug. 28,
2014). To mitigate any prejudice to Defendants, the Court will extend Defendants’
expert disclosure deadline and extend the discovery deadline for the limited purpose
of deposing expert witnesses, to ensure Defendants have an opportunity to depose
Plaintiff’s last expert. All other dates in the CMSO shall remain unchanged.
ACCORDINGLY, it is
ORDERED:
1.

Plaintiff AFI Holdings of Illinois, LLC's Motion to Extend the Time to

Disclose Expert Report of Briggs P. Stahl (Doc. 51) is GRANTED. Plaintiff shall
have up to and including October 22, 2018 to provide its final expert disclosure.
Defendants shall have up to and including November 22, 2018 to provide their expert
disclosures. The discovery deadline is extended to December 7, 2018 for the limited
purpose of expert depositions. All other directives and deadlines set forth in the
CMSO (Doc. 17) remain unchanged.

-4-

2.

Defendants Waterman Broadcasting Corp., Peter Busch, Lisa Spooner,

and Graham R. Hunter’s Motion to Strike Expert Witnesses and Expert Witness
Disclosures of Plaintiff (Doc. 53) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 15th day of October,
2018.

Copies:
Counsel of record

-5-