Rodriguez et al v. Lockheed Martin Corporation et al
Filing
861
ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER DENYING DEFENDANT'S MOTION TO REOPEN LIMITED DISCOVERY FOLLOWING REMAND re 857 , 858 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/29/13. (emt, )CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STEPHANIE RODRIGUEZ, et al.,
Plaintiffs,
V.
GENERAL DYNAMICS ARMAMENT AND
TECHNICAL PRODUCTS, INC.,
Defendant.
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CIVIL NO. 08-00189 SOM/LSC
ORDER AFFIRMING MAGISTRATE
JUDGE’S ORDER DENYING
DEFENDANT’S MOTION TO REOPEN
LIMITED DISCOVERY FOLLOWING
REMAND
ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER DENYING DEFENDANT’S
MOTION TO REOPEN LIMITED DISCOVERY FOLLOWING REMAND
Before the court is Defendant General Dynamics Armament
and Technical Products (“GDATP”) appeal of Magistrate Judge Kevin
Chang’s Order Granting in Part and Denying in Part Defendant’s
Motion to Reopen Limited Discovery Following Remand (“Order”).
See ECF No. 857.
Pursuant to Local Rule 7.2(d), the court
affirms the Magistrate Judge’s order without a hearing.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 74.1,
a party may appeal to a district judge any pretrial
nondispositive matter determined by a magistrate judge.
Under 28
U.S.C. § 636(b)(1)(A), a magistrate judge’s order may be reversed
by a district court only if it is “clearly erroneous or contrary
to law.”
The threshold of the “clearly erroneous” test is high.
“A finding is ‘clearly erroneous’ when, although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.”
United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948).
See also Thorp v. Kepoo, 100 F. Supp.
2d 1258, 1260 (D. Haw. 2000) (stating that the clearly erroneous
standard is “significantly deferential, requiring a definite and
firm conviction that a mistake has been committed”).
As the court and the parties have a long history with
this case, the court includes only those facts necessary to the
present issue.
GDATP seeks to classify Army investigator, Phillip
Leong, as an expert witness.
See Motion at 1, ECF No. 858.
According to GDATP, designating Mr. Leong as an expert witness
would “satisfy the Ninth Circuit’s concerns that led to the
reversal of the judgment.”
Id. at 2.
GDATP complains that, at
the status conference on April 26, 2013, before Magistrate Judge
Chang, GDATP advised both Magistrate Judge Chang and opposing
counsel of its intention “to move the Court to reopen limited
discovery to allow GDATP to designate Mr. Leong as a Fed. R.
Evid. 702 witness and conduct discovery to obtain updated damages
information,” yet “[s]pecific discovery deadlines were not
discussed at the hearing” and “on April 30, 2013 Magistrate Chang
issued a Scheduling Order indicating that all discovery was
closed, before GDATP had the opportunity to meet and confer and
file a motion.”
Id. at 2-3.
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GDATP claims that Magistrate Judge Chang’s ruling was
“clearly erroneous and contrary to law.”
Id. at 5.
GDATP
argues:
The Order is erroneous and contrary to law
because it applies the wrong standard in
finding that GDATP is “bound by the good
cause standard set forth in FRCP 16(b),
which focuses primarily on the diligence of
the party seeking amendment of the
scheduling order, because permitting
further discovery and allowing Defendant to
designate Mr. Leong as an expert would
require amendment of the scheduling order.”
Further, even applying the wrong standard,
the Order is clearly erroneous in not
finding that there is good cause to reopen
limited discovery in light of the Ninth
Circuit’s opinion.
Id. at 5 (citations omitted).
GDATP subsequently filed its
Motion to Reopen Limited Discovery (“Motion”).
ECF No. 849.
After a hearing was held, ECF No. 856, Magistrate Judge Chang
issued his Order.
ECF No. 587.
The Order thoroughly addressed GDATP’s arguments
regarding Mr. Leong:
[T]he court denies the request to add
Mr. Leong as an expert because Defendant
has not established good cause for doing
so. Throughout the course of this
litigation, Defendant has failed to
exercise diligence. See e.g., Doc Nos.
454, 583. Back on August 11, 2010, this
Court denied Defendant’s belated attempt to
add an additional expert witness, noting
Defendant’s delays in filing motions. Even
after the disposition of the appeal,
Defendant waited nearly four months to file
this Motion. To allow Defendant to
designate Mr. Leong as an expert now would
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contravene Rule 16, insofar as Defendant
did not successfully designate Mr. Leong as
an expert before the expiration of the
expert disclosure deadline back in 2009.
The Court recognizes that Defendant was
unable to obtain approval from the Army to
call Mr. Leong as an expert. However,
Defendant also failed to convince Chief
Judge Mollway to permit Mr. Leong to offer
his opinions and conclusions under FRE 614
and 706. Astonishingly, Defendant argues
that the events that occurred prior to
trial are irrelevant. Contrary to
Defendant’s assertion, the Court’s prior
rulings and orders are law of the case and
relevant and binding.
Defendant is certainly entitled to
defend in the manner it believes is most
effective, but that entitlement is not
without limitation. The purpose of remand
is not to place the parties in a more
favorable position than they were in prior
to the trial, nor to authorize relief that
was previously denied; it is simply to
retry the case with clarification from the
Ninth Circuit about the permissible scope
of Mr. Leong’s testimony. Defendant
submits that designation of Mr. Leong as an
expert will rectify and cure the
deficiencies identified by the Ninth
Circuit. However, designation of Mr. Leong
as an expert is not necessary to comply
with the Appellate Order; compliance can be
achieved by addressing the scope of his
testimony, assuming he testifies.
Defendant’s argument that Mr. Leong’s trial
testimony would be identical is not well
taken. If Mr. Leong was designated as an
expert, it is difficult to believe that
Defendant would not consider an opportunity
to question and enlarge the scope of Mr.
Leong’s testimony given the absence of
constraints that Defendant was subject to
at the first trial. As such, the request
presented to the Court is not one merely to
retitle Mr. Leong. A change in Mr. Leong’s
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designation would fundamentally and
substantively alter his role and
involvement at the retrial and it would
have a substantial impact on Plaintiffs and
the Court.
Further, Defendant will not be
prejudiced by a denial of its request to
designate Mr. Leong as an expert because it
has other experts who can offer similar
testimony as Mr. Leong. Defendant itself
argued to the Ninth Circuit that any error
regarding the admission of Mr. Leong’s
testimony was harmless because its
designated experts would have testified the
same. It is somewhat disingenuous for
Defendant to now argue that Mr. Leong is
the only expert witness whose testimony can
support its defense.
On the other hand, Plaintiffs would
suffer undue prejudice if Defendant is
permitted to name Mr. Leong as an expert.
The naming of Mr. Leong as an expert will
require additional discovery, further
deposition, and possibly the naming of a
rebuttal expert, all of which will increase
expenses and cause delays. Moreover, at
the hearing, Plaintiffs indicated that they
would file a Daubert motion if Mr. Leong is
designated as an expert. Such additional
and unnecessary motions practice and delay
would disrupt the Court’s calendar, impair
the Court’s ability to manage its docket,
and interfere with the expeditious
resolution of this action. For these
reasons, the Court denies Defendant’s
request to designate Mr. Leong as an expert
and authorize discovery related thereto.
Order at 8-12 (emphasis added and internal footnotes omitted).
There is nothing that is clearly erroneous or contrary
to law in Magistrate Judge Chang’s Order.
GDATP’s complaint that
the Order “erroneously held that Rule 16(b) governed the Motion,”
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Motion at 5, is incorrect.
The court finds GDATP’s assertion
that its Motion was not about scheduling deadlines to be
completely disingenuous.
GDATP asserts: “GDATP was not seeking
to extend scheduling deadlines; the Scheduling Order deemed
discovery closed.
GDATP requested permission to conduct
discovery after remand, an activity that had been foreclosed.”
Id.
GDATP is seeking to reopen discovery after the discovery
cutoff.
This is a request for an extension.
This court adopts Magistrate Judge Chang’s well-
reasoned Order, which thoroughly addresses the remainder of
GDATP’s arguments.
GDATP’s Motion is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 29, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Rodriguez v. General Dynamics Armament and Technical Products, Inc., Civ. No. 08-00198
SOM/RLP; ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER DENYING DEFENDANT’S MOTION TO REOPEN
LIMITED DISCOVERY FOLLOWING REMAND
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