Passmore v. Barrett Jr et al

Filing 66

OPINION AND ORDER denying as moot 41 Motion to Extend Discovery Schedule and denying 50 Motion to Strike Plaintiffs Disclosure of Rule 26 Expert. Signed by Magistrate Judge Andrew P Rodovich on 3/10/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROSIE PASSMORE, Individually and as
Special Administrator of the Estate of
WILLIE PASSMORE, Deceased,
Plaintiff,
v.
JAMES R. BARRETT, JR., Individually and
d/b/a LOS SUENOS, LANDSTAR CANADA,
INC., and LANDSTAR RANGER, INC.,
Defendants.

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) Cause No. 2:13-cv-290
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OPINION AND ORDER
This matter is before the court on the Motion to Extend Discovery Schedule [DE 41] filed
by the plaintiff, Rosie Passmore, on January 14, 2015, and the Motion to Strike Plaintiff’s
Disclosure of Rule 26 Expert [DE 50] filed by the defendant, James R. Barrett Jr., on January 27,
2015. For the following reasons, the Motion to Extend Discovery Schedule [DE 41] is DENIED
as MOOT, and the Motion to Strike Plaintiff’s Disclosure of Rule 26 Expert [DE 50] is
DENIED.
Background
The plaintiff, Rosie Passmore, initiated this matter in state court on July 29, 2013, and the
defendant, James R. Barrett, Jr., removed it to federal court on August 23, 2013. On September
18, 2014, this court extended the discovery deadline to May 28, 2015, the defendants’ expert
witness disclosure and report deadline to March 31, 2015, and the plaintiff’s expert witness
disclosure and report deadline to January 24, 2015. On January 14, 2015, Passmore requested
the court to extend the current discovery deadlines.

Passmore indicated that the parties took Barrett’s deposition on December 30, 2014 and
that she received the deposition transcript on January 13, 2015. She acknowledged that she
could not have an expert prepare a report by the January 24, 2015 deadline. Additionally, she
indicated that she wanted to inspect the accident site within the next thirty days and then to issue
her Rule 26 expert disclosure by February 28, 2015.
Barrett objected to the extension and argued that Passmore failed to show why she could
not have inspected the accident site earlier. He added that this litigation has prevented him from
making a living because it has become cost-prohibitive to obtain insurance to operate his truck
and that further delay would prejudice him further. Additionally, Barrett indicated that Passmore
failed to file a certification that she attempted to resolve this discovery dispute in good faith
pursuant to Local Rule 37-1.
In her reply, Passmore requested an eight day extension of the deadline to disclose her
expert and his report. She waited to conduct an inspection of the accident site until after
Barrett’s deposition because the inspection would help formulate the expert’s opinion and she
did not want to disclose her expert’s opinion without knowing Barrett’s testimony. Passmore
indicated that Barrett’s deposition was delayed because he was undergoing cancer treatment and
that she would have sought the site inspection months earlier had his deposition not been
delayed. Furthermore, she stated it was important for her expert to inspect the site to familiarize
himself with the surroundings and because Barrett would likely attempt to discredit his testimony
at trial if the expert did not inspect the accident site. Additionally, Passmore filed a Local Rule
37-1 certification with her Reply indicating that her counsel attempted to resolve this matter with
Barrett on January 13, 2015 via telephone and email and that Barrett indicated his objection on
January 14, 2015.

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On January 26, 2015, Passmore filed her amended Rule 26(a)(2) disclosure of expert
testimony for retained expert Donald L. Hess. The disclosure included the expert’s opinions,
qualifications, and the basis for his opinions. On January 27, 2015, Barrett moved to strike
Passmore’s expert disclosure. Barrett argued that Passmore filed her expert disclosure after the
court’s deadline and without leave of court.
Barrett indicated that the site inspection took place on January 27, 2015 and that it was
not necessary to formulate the expert’s opinion because the inspection took place after Passmore
filed her expert disclosure. Additionally, he argued that Passmore chose not to take his
deposition and that his testimony did not affect the expert’s conclusions. Therefore, he claimed
that Passmore did not have good cause to file her expert disclosure after the deadline.
Passmore claimed that she filed her expert disclosure timely. She indicated that the
deadline for disclosure was January 24, 2015, a Saturday. Pursuant to Federal Rule of Civil
Procedure 6(a), she argued that the deadline was extended until the next day that was not a
Saturday, Sunday, or legal holiday. Therefore, she claimed she filed her expert disclosure timely
on Monday January 26, 2015.
Discussion
Federal Rule of Civil Procedure 16(b) provides that a schedule shall not be modified
except upon a showing of good cause and by leave of the court. See Campania Mgmt. Co., Inc.,
v. Rooks, Pitts & Poust, 290 F.3d 843, 851 (7th Cir. 2002); Briesacher v. AMG Res., Inc., 2005
WL 2105908, at *2 (N.D. Ind. Aug. 31, 2005). Good cause sufficient for altering discovery
deadlines is demonstrated when a party shows that, “despite their diligence, the established
timetable could not be met.” Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995).
When the last day of a time period falls on a Saturday, Sunday, or legal holiday then “the period

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continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”
Federal Rule of Civil Procedure 6(a)(1)(C).
Passmore requested the court to extend the discovery deadline because she could not file
her expert report by the January 24, 2015 deadline. However, January 24, 2015 was a Saturday.
Therefore, Passmore had through Monday January 26, 2015 to file her expert report. Initially,
Passmore requested a thirty day extension but reduced her request to eight days in her reply.
Passmore indicated that she wanted to file her expert’s report after he inspected the
accident site on January 27, 2015. Barrett argued that Passmore could have inspected the site
earlier and that she did not demonstrate good cause sufficient to extend the discovery deadline.
Although Passmore argued that she could not meet the deadline, she filed her expert report on
January 26, 2015, within the deadline pursuant to Federal Rule of Civil Procedure 6(a)(1)(C).
Therefore, the motion to extend the discovery deadline is DENIED as MOOT.
Next, Barrett argued that the court should strike Passmore’s Rule 26 expert disclosure.
Barrett claimed that Passmore filed her disclosure late on January 27, 2015 without leave of
court. Although Barrett argued that Passmore did not have good cause to file her disclosure late,
as discussed above, Passmore filed her disclosure timely. Passmore filed her disclosure on
January 26, 2015 which was within the discovery deadline pursuant to Rule 6(a)(1)(C).
Therefore, the motion to strike Passmore’s expert disclosure is DENIED.
Based on the foregoing reasons, the Motion to Extend Discovery Schedule [DE 41] filed
by Passmore is DENIED as MOOT, and the Motion to Strike Plaintiff’s Disclosure of Rule 26
Expert [DE 50] filed by Barrett is DENIED.
ENTERED this 10th day of March, 2015.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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