Mitchell Enterprises, Inc. et al v. Mr. Electric Corp. et al

Filing 52

MEMORANDUM DECISION AND ORDER RE: Motion to defer Consideration of Defendants' Motion for Summary Judgment and to Amend the Scheduling Order, granting in part and denying in part 47 Motion for Discovery; granting 48 Motion to Expedite Heari ng. Plaintiffs shall respond to Defendants motion for summary judgment within 28 days of this Memorandum Decision and Order. Plaintiffs may submit a rebuttal report speaking to the Second Hatchett Report; said report shall be disclosed within 28 days of this Memorandum Decision and Order. Signed by Judge Ronald E. Bush. (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

MITCHELL ENTERPRISES, INC., d/b/a
MITCHELL ELECTRIC, an Idaho corporation,
DANNY G. MITCHELL and TERESA A.
MITCHELL, husband and wife, Idaho residents,
Plaintiffs,
v.
MR. ELECTRIC CORP., a Texas corporation, THE
DWYER GROUP, a Texas corporation, and DOES
1-10, inclusive,

Case No. CV 11-0537-REB
MEMORANDUM DECISION AND
ORDER RE: MOTION TO DEFER
CONSIDERATION OF
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND TO
AMEND THE SCHEDULING ORDER
(DOCKET NO. 47)

Defendants.

Currently pending before the Court is Plaintiffs’ Motion to Defer Consideration of
Defendants’ Motion for Summary Judgment and to Amend the Scheduling Order (Docket No.
47). The Court previously granted Plaintiffs’ related Motion to Expedite (Docket No. 48),
issuing a docket entry order outlining an abbreviated briefing schedule (Docket No. 49).
Therefore, having carefully considered the record and otherwise being fully advised, the Court
enters the following Memorandum Decision and Order:
I. DISCUSSION
The at-issue Motion relates to Defendants’ March 29, 2013 motion for summary
judgment (Docket No. 34). Relevant here, on or around March 21, 2013, Defendants disclosed a
second, supplemental report from their expert, Jerry Hatchett (“Second Hatchett Report”). The
Second Hatchett Report was disclosed (1) after the factual/expert discovery deadlines passed,

MEMORANDUM DECISION AND ORDER - 1

and (2) after Defendants were required to make expert disclosures. Through their Motion,
Plaintiffs do not challenge the timeliness of the Second Hatchett Report; rather, Plaintiffs seek
(1) to have this Court defer consideration of Defendants’ motion for summary judgment under
FRCP 56(d) so that they can fully respond to the Second Hatchett Report, and, relatedly, (2) to
permit disclosure of an additional expert witness under FRCP 16(b)(4) so the Second Hatchett
Report can be addressed on the merits. Defendants oppose Plaintiffs’ efforts in these respects,
arguing that Plaintiffs fail to meet the requirements of both FRCP 56(d) or FRCP 16(b)(4).
A.

FRCP 56(d)

Under FRCP 56(d)(1), the Court may defer consideration of a motion for summary
judgment “if the nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition . . . .” See Fed. R. Civ. P. 56(d)(1). FRCP
56(d) requires “(a) a timely application which (b) specifically identifies (c) relevant information,
(d) where there is some basis for believing that the information sought actually exists.” Sultana
Resources, LLC v. Trio Gold Co., 2007 WL 2993849, at *1 (D. Idaho 2007) (quoting Employers
Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th
Cir. 2004)).
According to Plaintiffs’ attorney, Matthew Gunn (appearing for the first time on May 2,
2013 following the withdrawal of Plaintiffs’ original counsel), “Plaintiffs will be unable to
present facts essential to support its opposition to Defendants’ [m]otion for [s]ummary
[j]udgment if Plaintiffs are not afforded extra time during which their expert may fully evaluate
and respond to the entirely new opinions, theories, and explanations set forth for the first time in
Jerry Hatchett’s second expert report.” See Gunn Aff. at ¶ 2 (Docket No. 47, Att. 2). Mr. Gunn

MEMORANDUM DECISION AND ORDER - 2

then goes on to identify those areas of the Second Hatchett Report that require Plaintiffs’
expert’s additional consideration/evaluation, including:
•

“Theory that Mitchell created digital artifacts later cited by Mitchell as
evidence of a digital intrusion.”

•

“Discussion of Zware’s integration with QuickBooks accounting software.”

•

“Theory that the “Zware.zip” file, containing Mitchell financial files, was not
the result of a digital intrusion but rather was created by Mitchell.”

•

“Theory that link files referencing Zware were created by Mitchell.”

•

“Theory that Defendants and Zware played no role in Mitchell’s undisputed
and massive loss of data and damaged dispatch software.”

•

“Theory that no Mitchell data was misappropriated by Defendants.”

•

“A ‘Reasonable Hypothesis’ that the damage alleged in Mitchell’s Complaint
resulted from a combination of user inexperience and error, third-party
viewing of pornographic websites, and failing physical equipment.”

See id. at ¶ 2; see also Pls.’ Mem. in Supp. of Mot. to Defer, p. 5 (Docket No. 47, Att. 1) (“None
of these opinions, theories, and explanations are contained in the First Hatchett Report and they
cannot be described as anything other than far-reaching, comprehensive, and, if proven true,
perhaps dispositive of Mitchell’s claims.”). Defendants argue that this is not enough,
denouncing Plaintiffs’ arguments as entirely failing “to identify the ‘specific facts’ Plaintiffs
hope to elicit from the extension, state whether those facts exist, and explain how (or if) the
sought-after facts are essential to oppose summary judgment as required by [FRCP] 56(d).” See
Defs.’ Opp. to Mot. to Defer, p. 5 (Docket No. 50). The undersigned disagrees.
There is no question that Mr. Gunn’s affidavit could be more specific at describing what
is needed by way of addressing the Second Hatchett Report vis à vis Defendants’ pending
motion for summary judgment. However, in the Court’s mind, that is not fatal to his request,
MEMORANDUM DECISION AND ORDER - 3

particularly when recognizing that such specifics may very well depend upon Plaintiffs’ expert’s
evaluation of those areas of the Second Hatchett Report that, naturally, has not yet taken place –
hence the instant Motion. Simply put, under the applicable circumstances, Mr. Gunn’s affidavit
states enough.
Moreover, any argument that the Second Hatchett Report does not raise any “new”
opinions, theories, and explanations (see Defs.’ Opp. to Mot. to Defer, pp. 6-13 (Docket No. 50))
is not persuasive. While the Court admits that it has neither pored over the Second Hatchett
Report nor compared its contents to earlier references in the record in order to determine
whether, in fact, the Second Hatchett Report raises new substantive and potentially dispositive
issues, the fact remains that, apparently, such information was not sufficiently included earlier
(at least in Defendants’ mind), thus requiring the disclosure of the Second Hatchett Report. In
other words, what’s the point of the Second Hatchett Report if, as Defendants’ say, it is “Not
New at All”? See id. at p. 7. Instead of attempting to definitively answer this question at the
expense of timely resolving the Motion in light of the pending motion for summary judgment,
and recognizing that Plaintiffs are not trying to outright strike the Second Hatchett Report, the
prudent approach here is to temporarily defer consideration of Defendants’ motion for summary
judgment to allow Plaintiffs more time to consider the Second Hatchett Report before having to
respond to the arguments raised therein. Simply put, such a course will allow for a more
complete opportunity to be heard and, thus, a consideration/resolution on the merits.
With all this in mind, Plaintiffs shall respond to Defendants’ motion for summary
judgment within 28 days of this Memorandum Decision and Order. Defendants’ reply in support
of their motion for summary judgment shall be filed in accordance with this District’s Local
Civil Rules. Plaintiffs’ Motion is therefore granted in this respect.
MEMORANDUM DECISION AND ORDER - 4

B.

FRCP 16(b)(4)

District courts have broad discretion in supervising the pretrial phase of litigation. See
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). Once a district court
has issued its scheduling order, FRCP 16 sets the standard for modifying the schedule. That
standard requires “good cause with the judge’s consent” to modify a scheduling order. See Fed.
R. Civ. P. 16(b)(4). FRCP 16(b)’s good cause standard primarily considers the diligence of the
party seeking the amendment. See Johnson, 975 F.2d at 609 (citing Fed. R. Civ. P. 16 Advisory
Committee’s Note (1983)). Although the existence of prejudice to the party opposing the
modification may supply reasons to deny a motion to modify, “the focus of the inquiry is upon
the moving party’s reasons for seeking modification. If that party was not diligent, the inquiry
should end.” Id.
Here, Plaintiffs did not disclose any rebuttal expert/report relative to Mr. Hatchett’s
original report. See Pls.’ Mem. in Supp. of Mot. to Defer, p. 3 (Docket No. 47, Att. 1) (“Given
the paucity of substance of the First Hatchett Report, [Plaintiffs] did not disclose a rebuttal
expert witness.”). However, once Defendants’ disclosed the Second Hatchett Report on or
around March 21, 2013 – after the factual/expert discovery deadlines passed and after
Defendants were required to make expert disclosures – Plaintiffs’ current counsel quickly sought
to amend the scheduling order to allow them an opportunity to address its substance, particularly
as it related to Defendants’ nearly contemporaneous motion for summary judgment. This is
especially true when recognizing that, (1) after Defendants’ filed their motion for summary
judgment, Plaintiffs’ original counsel moved to withdraw on April 3, 2013, (2) this Court
granted Plaintiffs’ original counsel’s motion to withdraw on April 8, 2013, (3) Plaintiffs’ current

MEMORANDUM DECISION AND ORDER - 5

counsel first appeared in this action on May 2, 2013, and (4) Plaintiffs filed the Motion also on
May 2, 2013. Given this procedural backdrop, coupled with principles of fundamental fairness,
Plaintiffs will be given the opportunity to submit a rebuttal report to the Second Hatchett Report;
said rebuttal shall be made consistent with the Federal Rules of Civil Procedure and this
District’s Local Civil Rules, and shall be disclosed within 28 days of this Memorandum Decision
and Order – the same number of days permitted for rebuttal reports under the Court’s original
April 10, 2012 scheduling order. Plaintiffs’ Motion is therefore granted in this respect.
However, Plaintiffs’ anticipated rebuttal report shall respond only to the content of the
Second Hatchett Report – it will not serve as an opportunity for Plaintiffs to submit altogether
new opinions. Moreover, no additional expert witnesses will be permitted. To the extent a
rebuttal report is in fact disclosed, it shall be from an expert already retained by Plaintiffs as of
March 21, 2013. Plaintiffs’ Motion is therefore denied in this respect.1
II. ORDER
Based on the foregoing IT IS HEREBY ORDERED that:
1.

To the extent not already done so, Plaintiffs’ Motion to Expedite hearing on

Motion to Defer Consideration of Defendants’ Motion for Summary Judgment and to Amend the
Scheduling Order (Docket No. 48) is GRANTED.
2.

Plaintiffs’ Motion to Defer Consideration of Defendants’ Motion for Summary

Judgment and to Amend the Scheduling Order (Docket No. 47) is GRANTED, in part, and
DENIED, in part as follows:

1

To further settle the pond on the issue, because Plaintiffs seek only to amend the
scheduling order to permit them to file a rebuttal report following the Second Hatchett Report,
the Court will not entertain any separate motion to strike the Second Hatchett Report as
untimely. Plaintiffs are nonetheless free to object to the Second Hatchett Report for substantive
reasons moving forward.
MEMORANDUM DECISION AND ORDER - 6

a.

Plaintiffs shall respond to Defendants’ motion for summary judgment

within 28 days of this Memorandum Decision and Order. Defendants’ Motion for Summary
Judgment and to Amend the Scheduling Order (Docket No. 47) is GRANTED in this respect.
b.

Plaintiffs may submit a rebuttal report speaking to the Second Hatchett

Report; said report shall be disclosed within 28 days of this Memorandum Decision and Order.
Defendants’ Motion for Summary Judgment and to Amend the Scheduling Order (Docket No.
47) is GRANTED in this respect.
c.

Relative to Plaintiffs’ above-referenced rebuttal report, Plaintiffs are not

permitted to retain an additional/new expert witness. Defendants’ Motion for Summary
Judgment and to Amend the Scheduling Order (Docket No. 47) is DENIED in this respect.
DATED: May 15, 2013

Honorable Ronald E. Bush
U. S. Magistrate Judge

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