CRST Expedited, Inc v. Swift Transportation Co, Inc

Filing 86

ORDER: 61 Motion to Compel held in abeyance, to the extent the Court has not already ruled on the motion. 68 Motion to Strike denied. Portion of 72 Motion for a Pretrial/Scheduling Conference to Address Discovery and Depositions that sought a hearing should be granted; Defendant's motion for reconsideration is granted in part and denied in part. 77 Motion to Stay denied. 78 Motion for Protective Order denied. Signed by Chief Magistrate Judge CJ Williams on 8/17/2018. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
CRST EXPEDITED, INC,
Plaintiff,

No. 17-CV-25-CJW

vs.
ORDER
SWIFT TRANSPORTATION CO. OF
ARIZONA, LLC,
Defendant.
____________________
TABLE OF CONTENTS
I.

Motions to Stay and for a Protective Order ................................................ 4
A. Applicable Law ............................................................................... 5
B. Discussion of Motion to Stay .............................................................. 6
1. Undue Prejudice or Clear Tactical Disadvantage to Non-Movant ................. 6
2. Whether a Stay Will Simplify the Issues............................................... 8
a. Intentional Interference with Contract ............................................. 9
b. Intentional Interference with Prospective Economic Advantage and
Unjust Enrichment ...................................................................12
3. Discovery and Trial Date .............................................................. 13
4. Consideration of All Factors Together ............................................... 14
C. Motion for a Protective Order ........................................................... 16

II. Motion for Reconsideration ................................................................ 16
III. Motion to Strike and Modification of Scheduling Order .............................. 20
A. Motion to Strike.............................................................................20
1. Applicable Law ...........................................................................21
2. Discussion .................................................................................21

B. Scheduling Order ...........................................................................24
IV. Conclusion..................................................................................... 26

This matter is before the Court on a number of motions: 1) defendant’s Motion to
Strike Expert Disclosure and Bar Testimony (Doc. 68); 2) defendant’s Rule 16 Motion
for a Pretrial/Scheduling Conference to Address Discovery and Depositions (Doc. 72);
3) plaintiff’s Motion to Stay (Doc. 77); and 4) plaintiff’s Motion for Protective Order
(Doc. 78). Plaintiff timely filed resistances to defendant’s motion to strike (Doc. 76),
and to defendant’s motion for a scheduling conference. (Doc. 79). Defendant timely
filed a reply in support of its motion to strike (Doc. 83), and timely filed a combined
resistance to plaintiff’s motion to stay and motion for protective order. (Doc. 80).
Plaintiff timely filed a combined reply in support of its motions to stay and for a protective
order. (Doc. 84). In its motion for a scheduling conference, defendant also made a
motion for reconsideration of the Court’s Order docketed at docket number 70. (Doc.
72, at 8-10). The Court will construe defendant’s embedded motion for reconsideration
as a formal motion for reconsideration. Because this motion was included in the motion
for a scheduling conference, plaintiff’s resistance is included in its resistance to the
motion for a scheduling conference. (Doc. 79, at 7-8).
Plaintiff filed a Supplement Regarding Motion for Protective Order on August
16, 2018, in which plaintiff renewed its request for a protective order. (Doc. 85). As
the supplement merely provides an update to the Court as to the status of discovery, the
Court has considered the supplement.
On August 6, 2018, the Court heard argument on all pending motions. Therefore,
the portion of defendant’s Rule 16 Motion for a Pretrial/Scheduling Conference to
Address Discovery and Depositions (Doc. 72) that sought a hearing should be considered

2

granted. For the following reasons, defendant’s Motion to Strike Expert Disclosure and
Bar Testimony (Doc. 68) is denied; defendant’s motion for reconsideration (Doc. 72, at
8-10) is granted in part and denied in part; plaintiff’s Motion to Stay (Doc. 77) is
denied; and plaintiff’s Motion for Protective Order (Doc. 78) is denied.
The Court notes that two motions to compel are also pending. (Docs. 61, 81).
This Order, however, does not address either motion. The parties advised that they were
attempting to reach a compromise on the issues presented in defendant’s motion to compel
(Doc. 61) and therefore requested that the Court not rule on the motion until after the
parties have had an opportunity to confer in an attempt to reach an agreement. The Court
finds it appropriate to hold defendant’s motion to compel (Doc. 61) in abeyance, to the
extent the Court has not already ruled on the motion. (see Doc. 67). Defendant is
directed to inform the Court by August 31, 2018, as to the status of the parties’ meet and
confer attempts. Specifically, defendant is to inform the Court of whether a complete
agreement has been reached such that the motion is moot. If the parties are unable to
reach a complete agreement, defendant is directed to inform the Court and, further, is
directed to inform the Court as to whether and how the scope of the motion has been
narrowed. The Court does not need information regarding the specifics of the parties’
negotiations, aside from the information set forth supra. Plaintiff’s motion to compel
(Doc. 81) is not ripe, and the Court will not presently consider the motion.
Rather than addressing the motions in the order in which they were filed, the Court
will first consider the motion to stay and the motion for a protective order, together,
before considering defendant’s motion for reconsideration. The Court will then consider
defendant’s motion to strike simultaneously with discussing the deadlines governing this
case. Further, because the pending motions do not share a common factual background
that is relevant to all motions, the Court will provide a separate factual summary in its
discussion of each motion rather than provide a single overarching background section

3

for all of the motions, together.
I.

MOTIONS TO STAY AND FOR A PROTECTIVE ORDER

The alleged factual background that led plaintiff to bring this lawsuit is largely
immaterial to the present motions. In sum, both plaintiff and defendant are trucking
companies that hire drivers. (Doc. 43, at 2-4). Plaintiff alleges that defendant has
wrongfully poached, and continues to poach, plaintiff’s drivers, even though the drivers
were allegedly under contract with plaintiff and had signed a non-competition agreement
with plaintiff. (Id., at 4-5). The parties disagree as to whether the contracts are valid
and enforceable agreements.
It is noteworthy that this case is one of four related cases,1 each of which is based
on the same basic set of factual allegations and causes of action. On July 31, 2018, this
Court granted summary judgment in favor of the defendant in one of the related cases,
CRST Expedited, Inc. v. TransAm Trucking, Inc. (hereinafter “TransAm”). No. C16-52LTS, 2018 WL 3738017 (N.D. Iowa July 31, 2018). The TransAm plaintiff2 immediately
filed a notice of appeal of the TransAm decision. (TransAm, No. 16-CV-52-LTS, Doc.
195). The following day, plaintiff in the instant case moved to stay the instant case during
the pendency of the TransAm appeal. (CRST Expedited, Inc. v. Swift Transp. Co., 17CV-25-CJW (hereinafter “Swift”), (Doc. 77).
In support of its motion to stay, plaintiff argues that “[b]ecause the issues in this
case are identical to those in TransAm, the merits of [plaintiff’s] claims will be addressed
by the Eighth Circuit Court of Appeals in adjudicating its appeal of this Court’s grant of
summary judgment in favor of TransAm.” (Doc. 77-1, at 3-4). Further, plaintiff filed

1

The three other related cases are CRST Expedited, Inc. v. TransAm Trucking Inc., 16-CV-52LTS; CRST Expedited, Inc. v. Knight Transportation, Inc., 17-CV-24-CJW; and CRST
Expedited, Inc. v. JB Hunt Transport, Inc., 17-CV-26-CJW.
2

The plaintiffs are the same in both TransAm and the instant case.

4

its motion for a protective order contemporaneously with its motion to stay and requested
expedited relief on its motion for a protective order. (Doc. 78). Plaintiff seeks “a
protective order specifying that all [plaintiff] witness depositions be postponed until its
Motion to Stay is decided.” (Doc. 78, at 2). Thus, the motion for a protective order is
tied to the motion to stay.
In response, defendant argues that staying this case “will prejudice [defendant]
and improperly delay final adjudication of this case.” (Doc. 80, at 3). Further, defendant
argues that staying this case will not conserve judicial resources because although
defendant may argue some issues that were considered in the TransAm decision,
defendant also intends to make additional arguments that will result in a summary
judgment in favor of defendant. As such, defendant asserts that staying this case until
such time as the Eighth Circuit rules on the appeal will not result in any benefit—to the
Court or the parties—because, defendant argues, this Court will be able to grant
defendant’s motion for summary judgment on different bases than will be considered by
the Eighth Circuit in TransAm. In response to plaintiff’s motion for a protective order,
defendant argues that the depositions sought to be postponed were properly noticed and,
further, that plaintiff has not met its “heavy burden” of showing that a protective order
is warranted. (Doc. 80, at 8, 11-13).
Despite plaintiff’s arguments to the contrary, the Court finds that a stay is not
warranted in this case, and plaintiff’s motion to stay is therefore denied.

As the

protective order sought is intended to cover only those depositions that had been noticed
for the time period between when plaintiff filed its motion to stay and this Court’s Order
on the motion to stay, plaintiff’s motion for a protective order is denied as moot. The
motion for a protective order will be discussed in greater depth infra.
A.

Applicable Law

In determining whether to stay a case, courts generally consider the following

5

factors: 1) whether a stay would unduly prejudice or present a clear tactical disadvantage
to the non-moving party; 2) whether a stay will simplify the issues in question and trial
of the case; and 3) whether discovery is complete and whether a trial date has been set.
Dordt College v. Burwell, No. C 13-4100-MWB, 2014 WL 5454649, at *1 (N.D. Iowa
Oct. 27, 2014) (citation omitted). Although the parties and issues presented in a case
sought to be stayed need not be identical to the parties and issues in a proceeding that
prompted the motion to stay, a court has the inherent power to stay proceedings “to
control the disposition of the causes on its docket with economy of time and effort[,] for
itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
In determining whether to stay an action, a court must exercise its judgment and “weigh
competing interests and maintain an even balance.” Id. (citations omitted). The party
seeking a stay bears the burden of persuasion in showing that a stay is appropriate. New
York Times Co. v. Jascalevich, 439 U.S. 1304, 1305 (1978).
B.

Discussion of Motion to Stay
1.

Undue Prejudice or Clear Tactical Disadvantage to Non-Movant

Defendant argues that staying this case would cause defendant undue prejudice and
would “threaten[ ]” to place defendant at a tactical disadvantage. (Doc. 80, at 5-6).
Specifically, defendant argues that a stay would “forc[e] [defendant] into a holding
pattern of uncertainty for an unknown amount of time,” and could expose defendant to
greater liability if defendant continues to hire plaintiff’s former drivers during the
pendency of the stay. (Id., at 5). Further, defendant argues that plaintiff would gain an
“unfair tactical advantage” over defendant if this case were stayed because “a stay would
improperly allow [plaintiff] to regroup and reformulate its strategy given its loss in
TransAm.” (Id., at 5-6).
The Court agrees with defendant that staying this case would result in discovery,
dispositive motions, and trial being delayed. “While a stay always presents a risk of

6

delaying final resolution of a dispute, [however,] [t]he mere potential for delay . . . is
insufficient to establish undue prejudice.” Destination Maternity Corp. v. Target Corp.,
12 F. Supp.3d 762, 766 (E.D. Pa. 2014) (citation, internal quotation marks, and emphasis
omitted) (second alteration in original). See also 1st Tech., LLC v. Digital Gaming Sols.
S.A., No. 4:08CV586 HEA, 2010 WL 883657, at *2 (E.D. Mo. Mar. 5, 2010) (holding,
in a patent case, that “the delay inherent to the reexamination process does not constitute,
by itself, undue prejudice” (citation and internal quotation marks omitted)). As such,
although defendant is correct that a stay would delay final adjudication of this case, such
delay does not weigh in favor of denying the motion to stay.
Defendant next argues that it would be prejudiced by a stay because defendant
would be forced to either cease hiring plaintiff’s former drivers during the pendency of
the stay or risk allegations that plaintiff’s former drivers hired during the stay led to
higher damage figures.

(Doc. 80, at 5).

This, however, is not a new dilemma.

Defendant has been faced with this choice since the inception of this lawsuit. Throughout
the duration of this lawsuit, defendant has had to choose whether to risk accumulating
higher damages by hiring plaintiff’s former drivers or abstain from hiring plaintiff’s
former drivers entirely. Although the Court recognizes that a stay would prolong the
duration of defendant’s choice, the choice itself would not be a product of this case being
stayed.
Finally, defendant argues that a stay would allow plaintiff to refine its arguments
in light of this Court’s decision in TransAm, which would place defendant at a tactical
disadvantage. (Id., at 6). In support of this position, defendant cites only one case, from
the District of Delaware. (Id. (citing St. Clair Intellectual Prop. Consultants, Inc. v.
Sony Corp., No. Civ.A. 01-557JJF, 2003 WL 25283239 (D. Del. Jan. 30, 2003))).
Although the cited case does address a motion to stay, the case does not address the issue
of tactical disadvantage. As defendant offers no other support—legal or factual—for its

7

allegation that defendant would be placed at a tactical disadvantage were the stay to be
granted, defendant has, in truth, offered no support at all for this argument.

In

considering defendant’s argument, however, the Court finds that the additional time a
stay would provide could allow plaintiff to refine its legal theories in light of this Court’s
TransAm holding. Defendant would, however, be afforded the same time period to refine
its own legal theories and anticipate plaintiff’s arguments. Because defendant would
likewise have additional time to craft its legal arguments in light of the TransAm decision
and in light of plaintiff’s anticipated arguments in the instant case, the danger of defendant
being placed at a tactical disadvantage is mitigated, to a degree.
Having considered all of defendant’s arguments regarding unfair prejudice and
defendant being placed at a tactical disadvantage, the Court finds that the balance, thus
far, weighs in favor of granting the stay.
2.

Whether a Stay Will Simplify the Issues

Plaintiff’s arguments in favor of a stay largely hinge on the proposition that the
issues in the TransAm appeal will be identical to the issues in the instant case. The Court,
however, is not persuaded that the issues in the two cases are identical, or will be
identical. The central issues in TransAm were the validity and enforceability of the
contracts with which the defendant in that case allegedly interfered. See TransAm, 2018
WL 3738017, at *8 (“The bulk of the parties’ arguments . . . revolve around [the element
of a valid and enforceable contract].”). It is likely—though not certain—that these issues
will present themselves in the instant case as well. At first glance, then, it would appear
that the issues in the instant case are indeed the same as those to be appealed in TransAm.3
Upon closer inspection, however, key differences are apparent. First, the Court

3

The Court notes that although the Notice of Appeal has been filed in TransAm, the parties have
yet to file their merits briefs. Thus, the Court can do no more than speculate as to the issues
that will be litigated before the Eighth Circuit Court of Appeals.

8

in TransAm entered summary judgment in favor of the defendant on the intentional
interference with a contract claim on the sole issue of whether the passive hiring of
plaintiff’s drivers satisfied the third element the claim: that is that the defendant
intentionally and improperly interfered with plaintiff’s prospective economic advantage.
See id. at *7. Second, with respect to that claim, in TransAm, this Court applied Iowa
law in determining whether the contracts were valid and only had to conduct a conflict
of laws analysis with respect to two different bodies of law. Specifically, the TransAm
plaintiff argued that Iowa law applied, while the TransAm defendant argued that Kansas
law applied. See id. at *5-7. Because plaintiff must satisfy the third element of the
intentional interference with a contract claim here, as in TransAm, the TransAm appeal
could, thus, be dispositive of this case if plaintiff loses on appeal. On the other hand, if
plaintiff prevails on appeal, the TransAm decision may not be dispositive of this case for
two reasons. First, Iowa law may not apply to this case. Second, defendant has asserted
that it has other grounds upon which it will seek summary judgment.

Further, an

appellate decision in TransAm will not necessarily be dispositive of plaintiff’s intentional
interference with prospective economic advantage and unjust enrichment claims.
a.

Intentional Interference with Contract
i.
Choice of Law

Although plaintiff in the instant case again argues that Iowa law applies, defendant
in the instant case makes a materially different choice of law argument than the defendant
in TransAm. The TransAm defendant’s theory for why Kansas law applied was based on
the TransAm defendant being a non-signatory resident of Kansas. (TransAm, Doc. 1562, at 10).
In conducting a choice of law analysis, the Court determined that Iowa law
governed the issue of whether the contracts were valid and enforceable. TransAm, 2018
WL 3738017, at *7, *9-11. The Court reasoned that Iowa law was to govern because

9

there was no “true conflict” between Iowa law and Kansas law on the relevant issues.
(Id. at *4-7 (explaining that where there is not a “true conflict” between the law of two
forums, a court is to apply the law of the forum state in order to avoid engaging in a
choice of law analysis)). Because this Court found that Iowa law was to govern the
validity and enforceability of the contracts at issue in TransAm, the Eighth Circuit Court
of Appeals will, presumably, only be confronted with potential errors surrounding either
this Court’s choice of law analysis, or the substantive application of Iowa law. 4
During the hearing in the instant case, defendant clarified its position regarding
which body of law applies.

Although defendant agrees that Iowa law governs the

substantive legal claims at issue—intentional interference with prospective economic
advantage, unjust enrichment, and intentional interference with contract—defendant
argues that the validity and enforceability of each contract at issue may be governed by
a different state’s or territory’s laws. (See Doc. 43). Defendant has not detailed its
theory as to which body of law applies to the validity or enforceability of each contract

4

The Court notes that the plaintiff in TransAm reasoned that Iowa law should apply because
“[i]n the absence of a conflict of laws, the Court should apply Iowa law.” (TransAm, Doc. 167,
at 28). Although the TransAm plaintiff used slightly different language than the “true conflict”
language used by the Court, TransAm, 2018 WL 3738017, at *4, plaintiff’s rationale in arguing
in favor of Iowa law is nearly identical to the Court’s rationale in determining that Iowa law did
govern the enforceability and validity of the contracts. See TransAm, Doc. 167, at 28-29, and
2018 WL 3738017, at *4-7. As the Court’s choice of law analysis so closely followed the
analysis posited by plaintiff, and as the Court found—in plaintiff’s favor—that Iowa law governed
the relevant issues, the Court finds it doubtful that plaintiff will attempt to appeal the Court’s
methodology in determining which body of law governed the relevant issues. As such, it follows
that when plaintiff in the instant case—which is the same plaintiff as in TransAm—asserts that
the issues in the TransAm appeal will be the same as the issues presented in the instant case,
plaintiff is referring to the Court’s application of Iowa law to the facts in TransAm. To the extent
plaintiff in the instant case may be expecting the TransAm defendant to challenge this Court’s
choice of law analysis that led to Iowa law being applied, such an expectation would be based
on speculation at this stage and would, therefore, be an improper basis upon which to rest its
motion to stay.

10

or why that body of law applies, and the Court finds that it is not error for defendant to
have withheld its theory thus far. To the best of the Court’s understanding, however,
defendant intends to argue that the body of law governing the validity and enforceability
of each contract is to be determined based on circumstances surrounding the driversignatory. This Court in TransAm was not confronted with the issue of the validity and
enforceability of the contracts each, potentially, being governed by a different body of
law based on the circumstances of the driver-signatories and this Court, therefore, did
not need to address the issue.
The Court will not venture a guess as to which circumstances defendant will argue
may influence the choice of law determination with respect to the validity and
enforceability of the contracts themselves. The Court finds it sufficient to state that the
Court is willing to entertain the argument that a different body of law could govern the
validity and enforceability of each contract. To be clear, the Court is not presently ruling
on the merits of which body of law applies to the validity and enforceability of the
contracts, nor is the Court ruling on the substantive issue of whether the validity and
enforceability of each contract could be governed by a different body of law. The Court
is merely stating that it is willing to consider such arguments.
The Court acknowledges that the facts in the instant case are similar to those
presented in TransAm. However, this Court’s analysis in TransAm regarding the validity
and enforceability of the subject contracts only becomes applicable to the instant case if
the Court finds that Iowa law applies to the issue of the enforceability and validity of the
contracts. There is a possibility that this Court will so hold. If the Court does so hold,
the Eighth Circuit’s decision with respect to how Iowa law applies to the enforceability
and validity of the contracts could be probative on this issue.5 Thus, if plaintiff loses on
5

This is assuming, of course, that the Eighth Circuit takes up the issue of how Iowa law applies
to the validity and enforceability of the contracts, which the Eighth Circuit is under no obligation

11

appeal on this issue, the Eighth Circuit’s decision will likely be dispositive of the
enforceability and validity issue in this case. On the other hand, if plaintiff prevails on
this issue at the Eighth Circuit and this Court finds that Iowa law applies to all of the
contracts at issue in this case, such a finding may not be dispositive in this case, depending
on the alternative arguments defendant advances.
ii.

Validity and Enforceability

As noted, in TransAm, defendant argued only that the non-competition provision
in the contracts at issue were invalid and unenforceable. (TransAm, Doc. 156-2, at 11,
15-19). Thus, in TransAm, this Court only had to consider whether the non-competition
provision—as opposed to the entire contract—was valid and enforceable, and whether
Kansas law or Iowa law applied to determine the validity and enforceability of the noncompetition provision.
Defendant in the instant case has represented that it has additional arguments that
it intends to set forth that it believes will warrant summary judgment in its favor. Given
the differing theories that have been posited by defendant thus far, the Court finds credible
defendant’s statement that it has additional arguments to set forth beyond those that were
advanced in TransAm. The Court offers no statement as to whether those additional
arguments will actually be dispositive. It is sufficient for the Court to conclude that if
defendant’s alternative arguments are successful, the outcome of the TransAm appeal may
not be dispositive of this case.
b.

Intentional Interference with Prospective Economic Advantage and
Unjust Enrichment
With respect to the intentional interference with prospective economic advantage
and unjust enrichment claims, the Court likewise finds that the appellate decision may

to do.

12

not be dispositive. In TransAm, this Court only addressed whether, under Iowa law,6 the
defendant “acted with the sole or predominant purpose to injure or financially destroy
the plaintiff.” Id., at *17 (citation and internal quotation marks omitted). Answering
that question requires a fact intensive inquiry. As such, differing factors in the conduct
of the TransAm parties versus the conduct of the parties in the instant case could render
the TransAm appellate decision of little benefit in addressing the issue in the instant case.
Next, this Court decided in TransAm that the unjust enrichment claim necessarily
failed for two reasons: 1) the defendant received no benefit from the plaintiff, and 2) it
rested on the success of the tortious interference claims, both of which the Court found
must fail. Id., at *18. Perhaps the Court will again reach the conclusion that defendant
obtained no benefit from plaintiff. It is likely, however, that in light of this Court’s
TransAm ruling, plaintiff may rethink its theory as to the benefit received and advance
different arguments. As a result, the Eighth Circuit Court of Appeals’ ruling in TransAm
may not be dispositive of the unjust enrichment claim. Second, if the Court finds that
the different posture of this case precludes summary judgment in favor of defendant on
either of the two predicate claims, the Court cannot enter summary judgment in favor of
defendant on the unjust enrichment claim based on the failure of both predicate offenses.
The Court therefore does not accept the argument that awaiting the Eighth Circuit’s
TransAm ruling will necessarily simplify the issues with respect to either the intentional
interference with prospective economic advantage claim or the unjust enrichment claim.
3.

Discovery and Trial Date

As is discussed infra, the Court is continuing the trial in the instant case and is
modifying the Scheduling Order, extending the existing deadlines for completion of
discovery and filing of dispositive motions. In determining whether to grant plaintiff’s
6

As explained supra, defendant agrees that Iowa law governs the intentional interference with
prospective economic advantage claim.

13

motion to stay, the Court will consider the motion in light of the trial date and scheduling
deadlines that are set forth infra.
Where a trial date has been set and discovery has proceeded nearly to completion,
the scale tips in favor of denying a motion to stay. 1st Tech, 2010 WL 883657, at *1
(“[S]tays are generally disfavored where . . . the case is in a late stage of litigation and
approaching trial.”). See Dordt College, 2014 WL 5454649, at *2. Here, a trial date
has been set since June 23, 2017. (Swift, Doc. 25). The trial was continued once, on
January 31, 2018, and the new trial date was set for February 25, 2019. (Doc. 41). The
Court set that new trial date approximately six months prior to plaintiff filing its motion
to stay, and the February 25, 2019 trial date is a mere six months from the date of this
Order. As such, the pendency of trial—both the original trial date, the first continued
date, and the second continued date set forth herein—favor the denial of the motion to
stay.
With respect to discovery, the issue is less clear cut. The parties are in agreement
that significant discovery remains to be completed. The Court is not privy to the specifics
of outstanding discovery, but the Court understands that numerous depositions have yet
to be taken, there are outstanding requests for production and interrogatories, and the
bulk of plaintiff’s electronically stored information (“ESI”) has yet to be produced.
Further, there is one outstanding motion to compel that is not ripe (Doc. 81), one motion
to compel that the Court is holding in abeyance (Doc. 61), and the parties have indicated
that additional motions to compel may be forthcoming.
The parties have also, however, completed substantial discovery and have had
more than one year to engage in discovery. To the best of the Court’s understanding,
both parties have undertaken considerable expense in pursuing and responding to
discovery requests, and the parties are much closer to the finish line than they are to the
starting line with respect to discovery. The parties agree that discovery cannot be

14

completed by the current deadline for completion of discovery.

The Court finds,

however, that the inability of the parties to complete discovery by the current deadline
can be remedied by extending the deadline for completing discovery. A stay is not
necessary to allow the parties to resolve pending discovery issues. The discovery issue
will be discussed in greater depth, infra. Here, let it suffice to note that the Court
recognizes that discovery is not complete, but that the parties have undertaken substantial
expense in pursuit of discovery and that discovery is nearing completion.
Although the status of discovery is not dispositive of the motion to stay in the
instant case, the status of discovery, here, weighs against granting the motion to stay.
Were the Court to grant the motion to stay, the parties would likely have to engage in
voluminous discovery once the stay is lifted, much of which may be duplicative. Further,
plaintiff’s production of ESI has been substantially delayed already because of technical
difficulties. Were the Court to stay this case, plaintiff would have no motivation to
continue to work on producing ESI discovery and work through the technical difficulties
it has encountered. Rather, plaintiff would likely make no effort to resolve the ESI
production problem until the stay was lifted, which would only lead to further delays.
As such, staying this case would not be economical or efficient when considering
discovery.
4.

Consideration of All Factors Together

The balance of interests in this case falls on the side of denying plaintiff’s motion
to stay. In this case, the most significant factor is whether the issues would be simplified
by staying the case.

The Court has explained that although the possibility for

simplification exists, that possibility is too tenuous to form a basis upon which the Court
may stay the case. Further, this case has progressed far beyond the early stages and is
nearing completion. As such, the status of the case weighs heavily against staying the
case. Although the first factor, whether defendant would face undue prejudice or would

15

be placed at a tactical disadvantage by a stay, weighs in favor of staying the case, the two
remaining factors weigh much more heavily on the side of denying plaintiff’s motion than
does the first factor on the side of granting plaintiff’s motion. The Court finds, in its
discretion, that to stay a case that has proceeded to this late stage would be a waste of
judicial and litigant resources and would not be in the best interests of either party. As
such, plaintiff’s Motion to Stay (Doc. 77) is denied.
C.

Motion for a Protective Order

Plaintiff’s accompanying motion for a protective order seeks to postpone “all
[plaintiff] witness depositions . . . until its Motion to Stay is decided.” (Doc. 78, at 2).
In support of plaintiff’s motion, plaintiff argues that it will be unnecessary to depose
plaintiff’s witnesses if the Eighth Circuit Court of Appeals finds in favor of the TransAm
defendant. As such, plaintiff seeks to postpone depositions until plaintiff’s motion to stay
is decided so that plaintiff can avoid incurring costs in producing witnesses for
depositions.
Plaintiff requests that depositions be postponed only until the Court rules on
plaintiff’s motion to stay. (Doc. 78, at 2). The Court, however, has opted to rule on the
motion to stay and the motion for a protective order in the same Order. Therefore, as of
the filing of this Order, plaintiff’s motion for a protective order was rendered moot.
Plaintiff’s Motion for Protective Order (Doc. 78) is, therefore, denied as moot.
II.

MOTION FOR RECONSIDERATION

The Court will now turn to defendant’s motion for reconsideration, which is
embedded within defendant’s Rule 16 Motion for a Pretrial/Scheduling Conference to
Address Discovery and Depositions. (Doc. 72, at 8-10). During the hearing, defendant
further clarified its position with respect to the motion for reconsideration.
In response to a previous motion to compel filed by plaintiff, the Court ordered
defendant “to respond to [plaintiff’s] Interrogatory Number Five by providing all

16

information sought for those drivers who were hired by defendant between January 1,
2013, and the date of [the Court’s prior] Order.” (Doc. 70, at 6). Interrogatory Number
Five asks defendant, inter alia, to “[i]dentify each driver hired by [defendant] . . . who
was under contract with plaintiff at the time of hiring.” (Id., at 4). Defendant makes
two arguments with respect to the Court’s prior Order. First, defendant argues that
plaintiff has advanced multiple theories of whether a driver was “under contract” with
plaintiff, and defendant, therefore, has no way of knowing, definitively, whether a certain
driver would be considered to be “under contract” with plaintiff within the meaning of
Interrogatory Number Five. Second, defendant argues that it has no efficient way to
search its records for individuals who previously worked for plaintiff and, instead, would
have to manually search tens of thousands of driver personnel files to determine which
drivers previously drove for plaintiff.

This, defendant argues, would be unduly

burdensome and disproportionate to the needs of the case. See FED. R. CIV. P. 26(b)(1).
Plaintiff has indicated that it is willing to work with defendant to streamline the process
of identifying plaintiff’s former drivers, but the parties have been unable to reach an
agreement as to how the identification process should proceed.
The Federal Rules of Civil Procedure do not account for “motions to reconsider,”
but such motions are “nothing more than Rule 60(b) motions when directed at non-final
orders.” Nelson v. Am. Home Assurance Co., 702 F.3d 1038, 1043 (8th Cir. 2012)
(citation and internal quotation marks omitted). Federal Rule of Civil Procedure 60(b)(6)
provides that “the court may relieve a party . . . from a[n] . . . order . . . for . . . any
other reason that justifies relief.” For a motion to reconsider to be successful, the movant
must “establish exceptional circumstances to obtain the extraordinary relief the rule
provides.” Reynolds v. Condon, 908 F. Supp. 1494, 1526 (N.D. Iowa 1995). The bar
for establishing exceptional circumstances is high and typically cannot be met where a
litigant had a full and fair opportunity to litigate its claim and the Court, nevertheless,

17

found against the litigant. Id. (citing Atkinson v. Prudential Prop. Co., 43 F.3d 367,
373-74 (8th Cir. 1994)).
The Court’s discovery Order was a non-final order because it resolved only a
portion of the parties’ dispute. See id.; Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853,
856 (8th Cir. 2008) (“[A]n order dismissing fewer than all claims or parties is generally
not a final judgment.”). As such, Rule 60(b) governs defendant’s motion to reconsider.
Further, the Court finds that none of the reasons for reconsideration that are provided in
Rule 60(b)(1)-(5) are applicable in the instant case, which leaves Rule 60(b)(6) as the
only potential avenue for relief. Defendant previously had a full and fair opportunity to
litigate its claims with respect to plaintiff’s motion to compel, and defendant does not
argue that it was deprived of such an opportunity. Indeed, in its resistance to plaintiff’s
motion to compel, defendant advanced arguments that are substantially the same as the
arguments defendant now advances. (See Doc. 60, at 4-9).
The Court, however, did not appreciate the full gravity of defendant’s arguments
until defendant explained them more fully during the hearing.

The Court now

understands that if defendant were required to comply with the Court’s Order regarding
Interrogatory Number Five, such compliance would likely be prohibitively expensive.
Based on the Court’s reformed understanding of defendant’s position, the Court agrees
that compliance would be unduly burdensome and disproportionate to the needs of the
case. The Court therefore finds that defendant has met its burden in pursuing its motion
to reconsider. The Court, however, stands by its previous Order that plaintiff is entitled
to the information sought.
Plaintiff has indicated that it is willing to compare the identities of defendant’s
drivers with the identities of plaintiff’s former drivers to determine whether any of
defendant’s drivers were “under contract” at the time defendant hired them. To do so,
however, plaintiff needs to know the identities of the drivers defendant hired. Plaintiff

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previously proposed that defendant provide plaintiff with the names and social security
numbers of all of the drivers defendant has hired in the past five years. Plaintiff explained
that the social security numbers were necessary to identify drivers with certainty.
Defendant, however, was understandably reluctant to provide such personal identifying
information for thousands of drivers who could have nothing to do with this case.
The Court finds that a hybrid approach to this problem is appropriate. Although
both names and social security numbers would remove any potential for misidentification
of drivers, it is also highly intrusive. Further, it would be time consuming for defendant
to gather both names and social security numbers, and even more so were the Court to
require defendant to redact the social security numbers to provide only the last four digits.
Although providing names only may lead to some confusion with certain drivers, the
parties can resolve these issues if they arise by defendant then providing the last four
digits of those drivers’ social security numbers.
The parties are therefore ordered as follows: by August 29, 2018, defendant is
directed to provide plaintiff with the names only of all drivers defendant has hired from
January 1, 2013, through July 24, 2018; by September 12, 2018, plaintiff is to inform
defendant of those drivers who plaintiff believes may have been “under contract”7 with
plaintiff at the time they were hired by defendant,8 but whose identities plaintiff is unable
to confirm; by September 26, 2018, defendant is to provide the last four digits of the

7

The Court recognizes that there may be a legitimate dispute as to the meaning of “under
contract” within the meaning of Interrogatory Number Five and within the greater scheme of
this case. By requiring plaintiff to identify those drivers it alleges may have been “under
contract” when hired by defendant, however, the Court may presently refrain from determining
whether the class of drivers who were “under contract” must be restricted in some fashion.
8

The Court recognizes that because the Court is not ordering defendant to provide the date of
first hire or communication by August 29, 2018, plaintiff will not be able to determine, with
certainty, whether a driver was “under contract” based on plaintiff’s theory of the case.

19

Social Security Numbers for those individuals disclosed by plaintiff as suspected to have
been “under contract,” but whose identities were unable to be confirmed; by October
10, 2018, plaintiff will confirm with defendant which, if any, of the drivers who were
suspected to have been “under contract” were actually employed by plaintiff at some
point that could render them subject to being “under contract” at the time they were hired
by defendant; by October 24, 2018, defendant will respond to Interrogatory Number
Five in full with respect to those drivers confirmed by plaintiff as having been employed
by plaintiff at some point in time such that they could have been “under contract” at the
time they were hired by defendant. As such, defendant’s motion for reconsideration is
granted in part and denied in part.
III.

MOTION TO STRIKE AND MODIFICATION OF SCHEDULING ORDER
The final issues the Court must confront are the Court’s Scheduling Order and

defendant’s Motion to Strike Expert Disclosure and Bar Testimony. (Doc. 76). Although
neither party explicitly moved to amend the Scheduling Order, defendant indicated that
six to eight week extensions of the discovery deadline and the dispositive motions deadline
would be adequate to allow the parties to complete discovery and submit dispositive
motions. Plaintiff indicated that it did not think a six to eight week extension would allow
adequate time to complete discovery. The Court is choosing to address the motion to
strike in conjunction with the existing deadlines because the existing deadlines influence
the motion to strike and vice versa.
A.

Motion to Strike

Turning first to the motion to strike, it is not clear whether plaintiff intends to call
Mr. David Souza, Chief Financial Officer of CRST International, Inc.—the witness who
was allegedly not properly designated as an expert witness—as an expert witness or
simply as a fact witness. Either way, the parties appear to agree that if called as an
expert, Mr. Souza will be a non-retained expert witness. The Court will proceed as

20

though plaintiff intends to call Mr. Souza as an expert witness.
1.

Applicable Law

The parties agree that if Mr. Souza provides expert testimony, it will be as a nonretained expert witness under Rule 26(a)(2)(C). Rule 26(a)(2)(C) requires a party to
disclose “the subject matter on which the witness is expected to present evidence under
Federal Rule of Evidence 702, 703, or 705,” and “a summary of the facts and opinions
to which the witness is expected to testify.” Federal Rule of Civil Procedure 37(c)
provides that “[i]f a party fails to provide information or identify a witness as required
by Rule 26(a) . . ., the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.”
2.

Discussion

Defendant argues that Mr. Souza was not properly disclosed as an expert witness
and that defendant will be prejudiced in its own expert disclosures by not having had the
benefit of plaintiff’s complete expert disclosures as of the date of defendant’s expert
disclosures.

Allowing plaintiff to make its disclosures and extending the time for

defendant’s expert witness disclosures will resolve this issue. Defendant also argues that
it will be “at risk of ambush at depositions and trial” as a result of plaintiff’s incomplete
disclosures. (Doc. 68-1, at 3). Again, extending the relevant deadlines will resolve these
issues.
The Court recognizes that some depositions may have taken place in the time
defendant’s motion has been pending for which plaintiff’s complete expert disclosures
may have been beneficial. The Court does not, however, agree that plaintiff’s incomplete
disclosures would have left defendant vulnerable to potential “ambush.”

Although

plaintiff provided “a summary of facts and opinions to which [plaintiff’s] expert is
expected to testify” in response to defendant’s interrogatories, as opposed to in a separate

21

disclosure, defendant had the information required by Federal Rule of Civil Procedure
26(a)(2)(C). (See Doc. 76-1). Further, this information was provided to defendant on
May 31, 2018, which was prior to the July 6, 2018, deadline for plaintiff to make its
expert witness disclosures. (Docs. 76-1, at 5; 55). As such, defendant cannot properly
argue that the information was disclosed after the deadline for plaintiff to make its expert
witness disclosures, thereby prejudicing defendant in the interim. Finally, defendant has
not identified any depositions conducted thus far that it alleges were compromised as a
result of a lack of full expert disclosure.9
To be clear, the Court is not reaching a decision as to whether plaintiff’s
interrogatory responses (Doc. 76-1) discussing Mr. Souza’s findings are sufficient to
satisfy Federal Rule of Civil Procedure 26(a)(2)(C). Plaintiff has offered to re-disclose
the information disclosed in Plaintiff’s Supplemental Answers to Defendant Swift
Transportation Co. of Arizona, LLC’s First Set of Interrogatories (Doc. 76-1) in a format
that will satisfy Federal Rule of Civil Procedure 26(a)(2)(C). The Court finds that this
solution is satisfactory where, as here, the Court is modifying the Scheduling Order to
extend discovery, which will consequently allow defendant the full benefit of having
plaintiff’s expert witness disclosures in the form contemplated by Rule 26(a)(2)(C).
Further, this solution renders plaintiff’s alleged failure to properly disclose its expert
witness harmless. See FED. R. CIV. P. 37(c) (allowing the Court to decline to strike an
expert that was improperly disclosed, unless, inter alia, the improper disclosure was
harmless).
Excluding evidence is a harsh penalty that should be used sparingly. Wegener v.

9

Although defendant might argue that permitting plaintiff to make its disclosures in the proper
form will require defendant to retake certain depositions in light of plaintiff’s disclosures, the
Court is limiting plaintiff’s disclosures to the information already within defendant’s possession,
as will be explained infra. As such, defendant will not come into any new information that
would require defendant to take additional depositions.

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Johnson, 527 F.3d 687, 692 (8th Cir. 2008). Further, the Court has great discretion in
choosing to sanction an improper disclosure by excluding a witness. Id. Where, as here,
the Court finds it necessary to modify the Scheduling Order and continue the trial for
reasons independent of the potentially improperly disclosed witness, the Court finds it
more appropriate to extend the expert witness deadlines than to strike the witness
altogether. This case is unique in that the discovery issues—independent of the present
expert witness issue—plaguing this case present an independent basis for granting a
continuance and extending discovery deadlines. If the only reason for continuing the trial
and extending the relevant deadlines were to permit plaintiff to disclose, in a different
form, Mr. Souza as an expert witness, perhaps the Court would reach a different
conclusion. Here, however, there is a degree of flexibility in the scheduling that permits
an extension during which plaintiff may re-disclose the information disclosed in Plaintiff’s
Supplemental Answers to Defendant Swift Transportation Co. of Arizona, LLC’s First
Set of Interrogatories (Doc. 76-1) in a format that will satisfy Federal Rule of Civil
Procedure 26(a)(2)(C).
The Court finds that should plaintiff choose to avail itself of the opportunity to redisclose Mr. Souza’s opinions, defendant should be given an opportunity to designate its
own expert witness(es) in response. Defendant’s expert witness disclosure deadline,
however, has passed, and defendant has not sought an extension. (Doc. 55, at 3). The
Court will therefore assume that defendant has disclosed all experts it intends to disclose,
with the potential exception of experts responsive to Mr. Souza’s opinions. The Court
will permit defendant an opportunity to disclose expert witnesses responsive to Mr.
Souza, if plaintiff chooses to re-disclose Mr. Souza as an expert witness. Finally, should
plaintiff re-disclose Mr. Souza’s opinions, and should defendant offer expert disclosures
in response, plaintiff may disclose rebuttal expert witnesses on those issues raised by
defendant’s responsive experts regarding Mr. Souza’s opinions. The deadlines for these

23

limited expert witness disclosures are set forth infra. Accordingly, defendant’s Motion
to Strike (Doc. 68) is denied.
B.

Scheduling Order

Although both parties indicated that they did not think the current deadlines would
permit adequate time to complete discovery and prepare dispositive motions, neither party
formally moved to continue the trial or modify the Scheduling Order. The matter of
whether to continue the trial and modify the Scheduling Order is, therefore, before the
Court on its own motion.
Federal Rule of Civil Procedure 16(b)(4) provides that a Scheduling Order “may
be modified only for good cause and with the judge’s consent.” The Court finds that
good cause exists for the modification. Although the expert witness disclosure issues
discussed supra could constitute good cause, the Court finds it more proper to disregard
the expert witness disclosure issue in determining whether good cause exists to modify
the Scheduling Order. The Court will, therefore, look elsewhere.
The Court finds that the parties have been diligently attempting to meet the
Scheduling Order’s requirements, but due do the scope of this case and the volume of,
and difficulties with, discovery—particularly ESI—the parties have simply been unable
to complete discovery. See French v. Cummins Filtration, Inc., No. C11-3024-MWB,
2012 WL 2992096, at *3 (N.D. Iowa July 19, 2012) (“The primary measure of good
cause is the movant’s diligence in attempting to meet the [scheduling] order’s
requirements.” (citation and internal quotation marks omitted)). Extending only the
discovery deadlines without continuing the trial is not a workable option because the
Court will not have adequate time to rule on the parties’ anticipated dispositive motions
prior to the time by which the parties must begin preparing for trial. See LR 16(g)
(requiring at least 150 days between the dispositive motions deadline and the parties’
proposed trial ready date, so as to allow the Court time to rule on dispositive motions

24

prior to the parties beginning to prepare for trial). As a result, the parties could incur
substantial expense in preparation for trial, only to have the case decided on a motion for
summary judgment. The Court therefore finds that the trial date must be continued. See
Anzaldo v. Croes, 478 F.2d 446, 450 (8th Cir. 1973) (stating that whether to continue a
trial “is subject to the broad discretion of the trial judge”).
Therefore, the new deadlines governing this case are as follows:
Plaintiff’s Expert Disclosures:10
Defendant’s Expert Disclosures:
Plaintiff’s Rebuttal Expert Disclosures:
Completion of Discovery:
Dispositive Motions:
Trial Ready:
Trial:

August 31, 2018
September 28, 2018
October 26, 2018
January 14, 2019
February 15, 2019
July 15, 2019
July 15, 2019

The Court emphasizes that absent truly exceptional circumstances, the deadlines
set forth herein—including the deadlines for completing discovery and filing dispositive
motions—will not be extended yet again. Likewise, the trial date is firm, and the parties
will be hard pressed to demonstrate the existence of a set of circumstances that would
warrant a third continuance. The parties are, therefore, strongly encouraged to continue
to work diligently to complete discovery and file their dispositive motions by the
deadlines set forth herein.

10

The parties are reminded that the expert witness disclosure deadlines set forth herein only
permit the parties to disclose those expert witnesses as are contemplated in this Order.

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IV.

CONCLUSION

IT IS ORDERED for the reasons set forth above:
The portion of defendant’s Rule 16 Motion for a Pretrial/Scheduling Conference
to Address Discovery and Depositions (Doc. 72) that sought a hearing should be
considered granted;
Defendant’s Motion to Strike Expert Disclosure and Bar Testimony (Doc. 68) is
denied;
Defendant’s motion for reconsideration (Doc. 72, at 8-10) is granted in part and
denied in part;
Plaintiff’s Motion to Stay (Doc. 77) is denied; and
Plaintiff’s Motion for Protective Order (Doc. 78) is denied.
Defendant’s Motion to Compel (Doc. 61) is held in abeyance, to the extent the
Court has not already ruled on the motion. As set forth supra, defendant is directed to
inform the Court by August 31, 2018, as to the status of the parties’ meet and confer
attempts regarding defendant’s Motion to Compel. (Doc. 61). Plaintiff’s Motion to
Compel (Doc. 81) is not ripe and the Court, therefore, offers no opinion on the motion.
IT IS SO ORDERED this 17th day of August, 2018.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

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