Humberger v. Foresman et al

Filing 28

OPINION AND ORDER: Plaintiff's 26 Motion for Reconsideration, construed as an objection to Magistrate Judge Gotsch's denial of plaintiff's motion for an extension of the expert deadline is OVERRULED. Signed by Senior Judge James T Moody on 11/23/2016. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DANIEL J. HUMBERGER,
Plaintiff,
v.
LONNY FORESMAN, et al.,
Defendants.

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No. 3:16 CV 23

OPINION and ORDER
This matter is before the court on plaintiff’s “Motion for Reconsideration,”
construed as an objection to a Magistrate Judge’s non-dispositive order pursuant to
Federal Rule of Civil Procedure 72(a). (DE # 26.) For the reasons set forth below, the
objection is overruled.
On May 3, 2016, Magistrate Judge Michael G. Gotsch afforded plaintiff until
August 5, 2016, to deliver expert witness disclosures and reports to defendants. On
August 26, 2016, plaintiff asked the court for a 60-day extension of the expert deadline
to allow for further correspondence with two potential experts. Defendants opposed the
motion, arguing that extending plaintiff’s expert deadline would cause prejudice by
requiring extensions of the other remaining discovery deadlines and delaying
resolution of the entire case.
On September 21, 2016, Magistrate Judge Gotsch denied the motion, holding that
plaintiff had not demonstrated the requisite “good cause” for an extension required by
Federal Rule of Civil Procedure 6(b)(1)(B), because plaintiff did not adequately explain

why he waited three weeks after the expiration of the established expert deadline to
seek an extension, why he could not deliver his expert disclosures or reports before the
established deadline, or why the two purported experts would be critical to the success
of the case. (DE # 25 at 2-3.)
On October 18, 2016, plaintiff filed a “Motion for Reconsideration” of Magistrate
Judge Gotsch’s order. (DE # 26.) In this motion, plaintiff asks the court to employ
Federal Rule of Civil Procedure 60(b) to relieve him of Magistrate Judge Gotsch’s order,
but Rule 60(b) is only applicable to “final” judgments, orders, and proceedings, and
Magistrate Judge Gotsch’s order was not a “final” one. Kapco Mfg. Co. v. C & O Enter.,
Inc., 773 F.2d 151, 154 (7th Cir. 1985) (discovery-related orders are not “final” orders for
purposes of Rule 60(b)).
Plaintiff’s “Motion for Reconsideration” is more accurately categorized as an
objection to a Magistrate Judge’s non-dispositive order under Federal Rule of Civil
Procedure 72(a). However, under Rule 72(a), any objection to Magistrate Judge Gotsch’s
non-dispositive ruling was due within 14 days of the order. In this case, plaintiff did not
file an objection until well beyond that deadline. Defendants raised the untimely nature
of plaintiff’s objection in their response to plaintiff’s “Motion for Reconsideration,” but
plaintiff failed to file a reply providing any explanation for the tardy filing. Therefore,
the objection is overruled as untimely filed.
Even if the court were to reach the merits of plaintiff’s objection, however, the
court would still overrule it. Under Rule 72(a), the court should “modify or set aside

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any part of the order that is clearly erroneous or is contrary to law.” However, plaintiff
has not identified any defect in Magistrate Judge Gotsch’s order. Instead, plaintiff
simply states additional facts regarding why he failed to meet the expert deadline.
Plaintiff’s failure to articulate all of the relevant facts in his first motion does not render
Magistrate Judge Gotsch’s order clearly erroneous or contrary to law. Magistrate Judge
Gotsch properly assessed plaintiff’s original (and quite delayed) motion for an
extension of time and denied the motion given the paucity of information therein.
Accordingly, even a timely objection would be overruled.
For the reasons set forth above, plaintiff’s objection under Federal Rule of Civil
Procedure 72(a) to Magistrate Judge Gotsch’s denial of plaintiff’s motion for an
extension of the expert deadline (styled as a “Motion for Reconsideration”) (DE # 26) is
OVERRULED.
SO ORDERED.
Date: November 23, 2016
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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