Longhini v. West Palm Plaza, Inc. et al
Filing
70
ORDER denying 66 Motion for Disclosure; denying 67 Motion for Disclosure; striking 65 Expert Designation. Signed by Judge Robert N. Scola, Jr. on 11/15/2017. (jle)
United States District Court
for the
Southern District of Florida
Douglas Longhini, Plaintiff,
v.
West Palm Plaza, Inc., and
Manhattan Big Apple, Inc. d/b/a
Manhattan Pizza Place, Defendants.
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) Civil Action No. 17-20351-Civ-Scola
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Order Denying Plaintiff’s Motion to Allow Expert Disclosures
This matter is set for trial during the two-week period beginning
November 27, 2017, with calendar call scheduled for November 21, 2017. The
deadline to complete fact discovery and exchange expert witness
summaries/reports was July 17, 2017, and the deadline to complete expert
discovery was September 6, 2017. On October 30, 2017, the parties filed a
Joint Pretrial Stipulation (ECF No. 59.) The stipulation represented that the
Plaintiff intended to call one witness: himself. (Id. at 9.) Nevertheless, on
November 14, 2017, the Plaintiff filed an Expert Designation disclosing, for the
first time, an expert witness (ECF No. 65). Shortly thereafter, the Plaintiff filed
two Motions to Allow Expert Disclosures, requesting that the Court permit the
late disclosure of the expert witness and permit the expert to testify at the trial
(ECF Nos. 66, 67). One of the motions (ECF No. 66) appears to have been filed
in error since it is a redline version that contains edits and comments.
A court’s scheduling-order deadlines may only be modified upon a
showing of “good cause.” Fed. R. Civ. P. 16(b)(4). To establish good cause to
justify an extension of pretrial deadlines a party must show that they have
acted diligently, but despite their conscientious efforts they are unable to meet
the deadline. Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998).
Diligence in this context means working “earnestly, steadily, energetically, and
conscientiously.” Freedman v. Suntrust Banks, Ind., No. 6:15-1657, at *6, 2016
WL 3196464 (M.D. Fla. June 9, 2016).
The Plaintiff identifies two reasons for disclosing an expert witness on the
eve of trial. First, Plaintiff’s counsel represents that the attorney handling this
matter, Mr. Sheskin, resigned without notice on August 14, 2017. (Mot. at 1.)
Apparently the attorney did not notify anyone of upcoming deadlines in his
cases. (Id.) The problem for Plaintiff’s counsel is that they have been relying on
this excuse for almost three months. On August 18, 2017, the Court entered
an order noting that the Plaintiff had failed to respond to Defendant Manhattan
Big Apple, Inc.’s Motion to Dismiss Complaint as Moot (ECF No. 48). The Court
ordered the Plaintiff to show cause why the motion should not be granted. (Id.)
On August 22, 2017, the Plaintiff filed a response to the motion, as well as a
Response to DE [48] Order to Show Cause. The response to the order to show
cause stated that Mr. Sheskin had resigned without notice and did not notify
anyone of the deadline (ECF No. 53). The response represented to the Court
that “Undersigned Counsel has implemented procedural changes to ensure a
response.” (Id.) Thus, as of August 22, 2017, Plaintiff’s counsel was aware of
this matter and represented to the Court that changes were being
implemented. At that time, there were still fifteen days remaining to complete
expert discovery.
The Plaintiff did not request any extensions of time or file anything
further with the Court until October 10, 2017, at which time the Plaintiff filed a
Motion for Extension of Time to Comply with Court’s Scheduling Order, asking
the Court to extend the deadline to file pretrial motions until November 8, 2017
(ECF No. 56). The deadline to file pretrial motions had expired fourteen days
prior to the filing of the motion. The Plaintiff once again blamed his failure to
comply with the Scheduling Order on Mr. Sheskin’s departure, and also stated
that Hurricane Irma had interfered with counsel’s ability to timely file pretrial
motions. The Court denied the motion without prejudice because it did not
contain the pre-filing conference certification required by Local Rule 7.1(a)(3)
(ECF No. 57). The Plaintiff never re-filed the motion.
Although the Court initially had sympathy for the plight of Plaintiff’s
counsel and permitted the Plaintiff to file a late response to the motion to
dismiss, the time for Plaintiff’s counsel to credibly blame their repeated failure
to comply with deadlines on Mr. Sheskin’s departure expired long ago.
Plaintiff’s counsel has been aware of this matter since August 22, 2017, prior
to the close of expert discovery, and had ample time to file a motion to extend
the time for expert discovery. The second reason for the delay proffered by
Plaintiff’s counsel is that they began preparations to close their office for
Hurricane Irma on September 6, 2017, and that the office remained closed
through September 21, 2017. (Mot. at 2.) However, in light of the fact that the
Plaintiff did not disclose the expert witness until November 14, 2017, the fact
that Plaintiff’s counsel’s office was closed for a sixteen-day period in September
does not establish that the Plaintiff acted diligently.
It is inexcusable that the Plaintiff waited until seven days prior to the
calendar call to disclose his expert witness. The facts set forth above
demonstrate a shocking lack of diligence on the part of the Plaintiff. The
Eleventh Circuit has indicated that this should end the Court’s inquiry. See
Sosa, 133 F.3d at 1418 (“If a party was not diligent, the good cause inquiry
should end.”) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir. 1992)).
Accordingly, the Court denies the Plaintiff’s Motions to Allow Expert
Disclosures (ECF Nos. 66, 67) and strikes the Plaintiff’s Expert Designation
(ECF No. 65).
Done and ordered at Miami, Florida on November 15, 2017.
_______________________________
Robert N. Scola, Jr.
United States District Judge
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