GF&C Holding Company, LLC v. Hartford Casualty Insurance Company et al
Filing
32
MEMORANDUM DECISION AND ORDER denying 28 Motion for Leave to Designate Substitute Expert Witness; granting 29 Motion to Expedite/Request for Order Extending Plaintiffs Time to Respond to Defendants' Motion for Summary Judgment 26 . Plaintiff shall file its response on or before 12/7/2012. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GF&C HOLDING COMPANY,
Case No. 1:11-cv-00236-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
HARTFORD CASUALTY INSURANCE
COMPANY, and HARTFORD STEAM
BOILER INSPECTION & INSURANCE
COMPANY,
Defendants.
INTRODUCTION
The Court has before it Plaintiff’s Joint Motion for Leave to Designate Substitute
Expert Witness (Dkt. 28), and Plaintiff’s Request for Orders: 1) Shortening Time on Joint
Motion for Leave to Designate Substitute Expert Witness; and 2) Extending Plaintiff’s
Time to Respond to Defendants’ Motion for Summary Judgment (Dkt. 29).1
BACKGROUND
Pursuant to the parties’ stipulated litigation plan, the Court set the expert
disclosure deadlines as follows: (1) Plaintiffs were to disclose the experts they intended at
trial on or before July 30, 2012; (2) Defendants were to disclose their experts intended to
be called at trial on or before August 29, 2012; and (3) Rebuttal experts were to be
1
During an informal conference between counsel and the Court’s staff, the parties agreed to an expedited
briefing schedule on the request to shorten time on joint motion. Accordingly, that section of the motion
is moot.
MEMORANDUM DECISION AND ORDER - 1
identified on or before September 12, 2012. The Court set the dispositve motion deadline
for October 31, 2012. Due to Plaintiff’s expert’s untimely demise, the parties stipulated to
extend the expert disclosure deadlines by approximately thirty days. The Court adopted
the stipulation and extended the deadlines to September 28, 2012, October 29, 2012, and
November 27, 2012 respectively.
Plaintiff did not designate an expert by the September 28 deadline. Defendants
then filed their motion for summary judgment on October 31, 2012, the deadline for
filing dispositive motions. On November 6, 2012, Plaintiff filed its motion to designate a
substitute expert, and motion to extend the time to respond to the motion for summary
judgment. During an informal conference between counsel and the Court’s staff,
Defendants’ counsel indicated that Defendants do not oppose a short extension of time
for Plaintiff to file its response to the motion for summary judgment. However,
Defendants oppose the motion to designate a substitute expert. That issue is now fully
briefed and before the Court.
ANALYSIS
Plaintiff essentially seeks another extension of time to disclose its expert witness.
Federal Rule of Civil Procedure 16(b)(4) states that a court’s scheduling order “may be
modified only for good cause and with the judge’s consent.” Plaintiff has not met the
good cause standard.
Plaintiff’s earlier request to extend the time to disclose its expert because of the
untimely demise of William Walker clearly met the good cause standard. Accordingly,
MEMORANDUM DECISION AND ORDER - 2
both the Defendants and the Court agreed to the extension. However, Plaintiff’s recent
request is much different.
Plaintiff’s counsel explains that although he retained a new expert, Kevin Dawson,
after Walker’s demise in August, Dawson failed to produce his expert report, but
repeatedly promised to do so. Pl.’s Br. at 2, Dkt. 28-1. Plaintiff’s counsel explains that he
told Dawson that his report in the related Crandall case was due by September 24, and
that the report in this case was due September 28. Schoppe Decl., pp. 2-3, Dkt. 28-2.
Counsel asked Dawson to give him a report by September 9 so he could review it during
his extended vacation. Id. at 3. Dawson did not produce the report by September 9. Id.
Counsel then asked Dawson to produce the report by September 21. Id. Again,
Dawson failed to produce it. Id. Dawson finally produced the Crandall report on
September 24, the disclosure deadline in that case. Id.
Counsel indicates that the September 28 disclosure deadline in this case came and
went without receiving a report from Dawson. Id. However, instead of explaining the
situation to the Court, or asking opposing counsel or the Court for another extension at
that time, counsel spent the next month trying to get a report from Dawson. Id. Somewhat
strangely, counsel notes that during his conversations with Dawson that month, Dawson
explained that there was no coverage under the policies at issue in this case, but “by the
end of our conversation . . . acknowledged that the policies did in fact offer the coverage .
. . .” Id. at 4. The Court will not presume to read too much into this comment, but it
MEMORANDUM DECISION AND ORDER - 3
strikes the Court as odd, and suggests there may be additional reasons why Plaintiff
wants a new expert.
For some reason, counsel then gave Dawson another deadline for producing his
report – October 12. Id. Counsel did this knowing the deadline for disclosing the expert
had passed, explaining that he “believed that it would be easier to meet [a tardiness
objection] than to seek leave to obtain a substitute expert . . . .” Id. Dawson did not
produce the report by October 12.
Again, instead of asking for another extension at that time, counsel and his client
apparently continued trying to get the report from Dawson until “Dawson stopped
responding entirely, and confirmed by his silence in response to [counsel’s] October 28
email to him expressing [counsel’s] belief that he had abandoned his work on all three
cases. . . .” Id. Still, Plaintiff again failed to bring the matter to the Court’s attention at
that point. Instead, Plaintiff waited until a week after Defendants filed their motion for
summary judgment to ask the Court for leave to extend the disclosure deadline and retain
another expert.
Under these circumstances, the Court cannot find good cause to extend the
disclosure deadline. At the very least, Plaintiff should have asked the Court for the
extension before the current deadline expired. The adage that it is better to ask for
forgiveness than permission is not the right approach. Defendants adhered to the
dispositive motion deadline and played their hand. Plaintiff cannot be allowed to reset the
game now, and pick another expert. Moreover, although Plaintiff goes to great lengths to
MEMORANDUM DECISION AND ORDER - 4
blame its failure to meet its disclosure deadline on Dawson, the blame falls on Plaintiff
for choosing its expert – an expert who apparently did not initially opine in a manner
consistent with Plaintiff’s case. Accordingly, the Court will deny the motion.
ORDER
IT IS ORDERED THAT:
1. Plaintiff’s Joint Motion for Leave to Designate Substitute Expert Witness (Dkt.
28) is DENIED.
2. Plaintiff’s Request for Order Extending Plaintiff’s Time to Respond to
Defendants’ Motion for Summary Judgment (Dkt. 29) GRANTED. Plaintiff
shall file its response on or before December 7, 2012.
DATED: November 26, 2012
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
MEMORANDUM DECISION AND ORDER - 5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?