Daniels v. City of Sioux City et al
Filing
28
ORDER denying without prejudice 25 MOTION to Strike Plaintiffs' Disclosure of Expert Witness and granting 26 MOTION for Extension of Time for Expert Disclosures. Plaintiffs Expert Witness due by 3/31/2014. Defendants Expert Witnesses due by 5/30/2014. Plaintiffs Rebuttal Experts due by 6/30/2014. Discovery due by 8/1/2014. Motions due by 9/2/2014. Trial Ready Deadline 1/5/2015. All other dates and deadlines in this case, including the trial date of 1/12/15, remain unchanged. Signed by Magistrate Judge Leonard T Strand on 3/4/14. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DaCOSTA DANIELS, individually and
DaCOSTA DANIELS as mother,
guardian and next friend of Y.A., a
minor child,
Plaintiffs,
No. C13-4068-MWB
vs.
ORDER
THE CITY OF SIOUX CITY, et al.,
Defendants.
____________________
This case is before me on two related motions: (1) defendants’ motion (Doc. No.
25) to strike plaintiffs’ expert witness disclosures and (2) plaintiffs’ motion (Doc. No.
26) to extend the deadline for their expert witness disclosures. No party has requested
oral argument and, in any event, I find that such arguments are not necessary.
See Local
Rule 7(c). The motions are fully submitted.
BACKGROUND
Plaintiffs DaCosta Daniels, individually, and DaCosta Daniels, as mother,
guardian and next friend of Y.A., a minor, filed this action on July 29, 2013. The
complaint (Doc. No. 2) describes events that allegedly occurred on August 8, 2011,
during DaCosta Daniels’ arrest by Joshua Tyler, a Sioux City Police Officer. Daniels
alleges that Tyler employed excessive force in making the arrest. In Counts I and II,
she asserts claims against Tyler for common law assault and, pursuant to 42 U.S.C. §
1983, deprivation of her constitutional rights.
In Count III, Daniels asserts a claim
against the City alleging that it failed to properly train Tyler and that Tyler was acting
pursuant to a policy or custom of the City.
The complaint also describes events that allegedly occurred on or about February
23, 2012, when Y.A., who is Daniels’ daughter, was attending classes at West Middle
School in Sioux City. Plaintiffs allege that a video of Daniels’ arrest by Tyler was
shown to Y.A.’s entire class during class time.
Counts IV and V assert claims on behalf
of Y.A. against both the City and The Sioux City Community School District (the
District) for intentional and negligent infliction of emotional distress. Finally, Count VI
consists of a request for punitive damages against all defendants.
Tyler and the City filed an answer (Doc. No. 12) on August 20, 2013. The
answer denies wrongdoing and liability and includes various defenses. The City then
filed a motion (Doc. No. 13) to bifurcate claims and to stay discovery and trial. The
City asked that the claims against it be separated from the claims against Tyler, with the
claims against Tyler being tried first. It further sought a stay of discovery on the claims
against the City pending resolution of the claims against Tyler. I denied that motion on
September 13, 2013. See Doc. No. 21.
Meanwhile, the District filed a pre-answer motion (Doc. No. 14) to dismiss the
claims against it for lack of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). On November 8, 2013, Judge Bennett granted that motion, thus
dismissing the District from this case and leaving the City and Tyler as the only remaining
defendants. See Doc. No. 23.
On November 5, 2013, I approved and entered the parties’ joint, proposed
scheduling order and discovery plan (Doc. No. 22) which, among other things,
established a deadline of January 31, 2014, for plaintiffs to disclose expert witnesses.
Trial is scheduled to begin January 12, 2015. See Doc. No. 24.
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THE PRESENT DISPUTE
On their deadline of January 31, 2014, plaintiffs served an expert witness
disclosure in which they state that they have retained Robert T. Johnson as an expert.
See Doc. No. 25-2. They provided Mr. Johnson’s curriculum vitae, his fee schedule
and a list of other cases in which he has testified during the past four years.
Id.
However, they did not disclose his opinions in this case and, thus, did not itemize the
facts and data he considered in forming those opinions. Instead, they stated that they
were not yet in a position to disclose that information because they had retained Mr.
Johnson just four days earlier.
Id.
Defendants filed their motion to strike on February 21, 2014, correctly pointing
out that plaintiffs were not in compliance with the expert disclosure requirements imposed
by Federal Rule of Civil Procedure 26(a)(2)(B).
This motion prompted plaintiffs’
motion to extend their disclosure deadline, in which plaintiffs seek an extension to March
31, 2014.
Plaintiffs contend that they were unable to fully comply with Rule 26(a)(2)(B) by
January 31, 2014, because they have limited resources and it took a great deal of time
for them to locate an expert they could afford. Plaintiffs also attempt to shift blame to
the defendants, for various reasons. Finally, they note that their attorney’s first child
was born two days after the January 31, 2014, deadline, causing further distractions.
See Doc. No. 26-1 at 4-5. Defendants argue that these explanations do not rise to the
level of good cause, as necessary to amend a scheduling order. Defendants also contend
that they will suffer unfair prejudice if plaintiffs’ requested extension is granted.
ANALYSIS
Federal Rule of Civil Procedure 16(b) guides the court's issuance and modification
of pretrial scheduling orders and provides that the court “must issue a scheduling order,”
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which “must limit the time to join other parties, amend the pleadings, complete discovery,
and file motions.” Fed. R. Civ. P. 16(b)(1) and (3)(A). The scheduling order “may be
modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4).
In addition, Rule 16(d) states that the pretrial order “controls the course of the action
unless the court modifies it.”
The Eighth Circuit Court of Appeals has explained the Rule 16(b) “good cause”
standard as follows:
“The primary measure of good cause is the movant's diligence in attempting
to meet the order's requirements.” Rahn v. Hawkins, 464 F.3d 813, 822
(8th Cir. 2006); see also Fed.R.Civ.P. 16(b), advisory committee note
(1983 Amendment) (“[T]he court may modify the schedule on a showing
of good cause if it cannot reasonably be met despite the diligence of the
party seeking the extension.”). While the prejudice to the nonmovant
resulting from modification of the scheduling order may also be a relevant
factor, generally, we will not consider prejudice if the movant has not been
diligent in meeting the scheduling order's deadlines. See Bradford v. DANA
Corp., 249 F.3d 807, 809 (8th Cir. 2001) (concluding that there was “no
need to explore beyond the first criterion, [diligence,] because the record
clearly demonstrate[d] that Bradford made only minimal efforts to satisfy
the [scheduling order's] requirements”). Our cases reviewing Rule 16(b)
rulings focus in the first instance (and usually solely) on the diligence of the
party who sought modification of the order. See, e.g., Rahn, 464 F.3d at
822 (affirming the district court's denial of Rahn's request for a
modification of the scheduling order because the record made clear that
Rahn did not act diligently to meet the order's deadlines); Barstad v.
Murray County, 420 F.3d 880, 883 (8th Cir. 2005) (affirming the district
court's denial of leave to amend the Barstads' complaint under Rule 16(b)
because the Barstads had eight months to request an amendment of the
scheduling order and “knew of the claims they sought to add when they
filed the original complaint”); Freeman v. Busch, 349 F.3d 582, 589 (8th
Cir. 2003) (affirming, under Rule 16(b), the district court's denial of
Freeman's motion to amend her complaint because she provided no reasons
why the amendment could not have been made earlier or why her motion
to amend was filed so late).
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Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir. 2008). Thus, the
movant’s diligence in attempting to comply with the scheduling order is the paramount
issue.
Here, this is a very close call. At the outset, I flatly reject plaintiffs’ absurd
attempts to blame this situation on their adversaries.
According to plaintiffs, the
defendants had the audacity to (a) exercise their right to produce a description of
documents, not copies of documents, with their initial disclosures,1 (b) force plaintiffs to
respond to non-frivolous procedural and jurisdictional motions and, to top it off, (c) serve
written discovery requests. One can only wonder how defense counsel can sleep at
night. It is downright silly for the plaintiffs to contend that by virtue of these perfectlylegitimate actions, the defendants “have also played a part in producing this delay.”
Next, while I sincerely congratulate plaintiffs’ counsel on the birth of his first
child, that event occurred after the January 31, 2014, deadline. Plaintiffs do not explain
how that might have impacted their efforts to locate and retain an expert sufficiently in
advance of the deadline to avoid the need for an extension.
This leaves one argument – the one plaintiffs should have advanced in a motion to
extend their deadline prior to January 31, 2014. Plaintiffs state that they contacted
multiple experts but were unable to locate one they could afford in time for them to
comply with the deadline. That is actually a legitimate reason, as it suggests at least
1
The Rules of Procedure rather plainly give each party the option to produce, as part of its initial
disclosures, either “a copy – or a description by category and location” of all documents and
things in that party’s possession that the party “may use to support its claims or defenses.” Fed.
R. Civ. P. 26(a)(1)(A)(ii). Thus, the defendants were not required to provide copies at the
initial disclosure stage. Moreover, given that the plaintiffs did not even retain their expert until
January 27, 2014, I simply do not believe their claim that he might have been able to complete
an expert witness report by their deadline – four days later – if only the defendants had provided
copies of documents. Finally, upon receiving defendants’ initial disclosures plaintiffs could
have served a simple set of document requests to obtain copies of the listed documents. For
reasons that remain a mystery, they did not do so.
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some amount of diligence and explains, at least in part, why plaintiffs may have been
unable to meet their deadline through no fault of their own.
If plaintiffs had filed a motion to extend the deadline prior to January 31, 2014,
and had provided this explanation, granting the motion would have been a relatively easy
call.
Instead, they sought no extension, failed to comply with their disclosure
requirements and requested relief only later, when defendants properly pointed out their
noncompliance. That conduct, combined with their bizarre attempt to blame their plight
on the defendants, makes it tempting to deny their request.
And, frankly, if the
scheduling order could not easily accommodate plaintiffs’ delay without causing undue
prejudice to the defendants, that is what would happen.
Fortunately for plaintiffs, trial is not scheduled to begin for over ten months. I
find that plaintiffs have, just barely, demonstrated good cause to extend their expert
witness disclosure deadline by representing that they made efforts to obtain an expert
sooner but were unable to do so because of financial constraints. I further find that the
scheduling order can be amended without causing unfair prejudice. Thus, the scheduling
order for this case is hereby amended as follows:
Plaintiffs’ expert disclosures:
March 31, 2014
Defendants’ expert disclosures:
May 30, 2014
Plaintiffs’ rebuttal expert disclosures:
June 30, 2014
Completion of all discovery:
August 1, 2014
Dispositive motions:
September 2, 2014
Trial Ready Date:
January 5, 2015
All other dates and deadlines in this case, including the trial date of January 12,
2015, remain unchanged.
Plaintiffs and their counsel are advised that any further
requests on their part to extend deadlines or excuse noncompliance will be reviewed with
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skepticism. They should not expect further relief in the absence of truly extraordinary
and unforeseeable circumstances.
CONCLUSION
For the reasons set forth herein, the defendants’ motion (Doc. No. 25) to strike
plaintiffs’ disclosure of expert witnesses is denied without prejudice. That motion may
be renewed after March 31, 2014, if plaintiffs still have not complied with the applicable
disclosure requirements. Plaintiffs’ motion (Doc. No. 26) to extend their deadline for
expert disclosures is granted. The scheduling order for this case is hereby amended as
set forth herein.
IT IS SO ORDERED.
DATED this 4th day of March, 2014.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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