Pogue v. The Northwestern Mutual Life Insurance Company

Filing 71

MEMORANDUM OPINION AND ORDER granting in part and denying in part 46 Motion for Extension of Time to Complete Discovery; granting 56 Motion for Extension of Time to File Dispositive motions. The deadline for completion of discovery is EXTENDE D for the sole purpose of permitting the parties to conduct the following depositions: Pogue's Rule 30(b)(6) deposition of Northwestern Mutual and Northwestern Mutual's depositions of Pogues treating physicians, Dr. Roy Asta and Dr. Brac ken Lewis. The parties shall conduct all three depositions no later than 7/22/2016. The deadline for disclosure of rebuttal experts is extended to 6/24/2016. Any dispositive motions shall be filed no later than 60 days after the last of the three depositions permitted herein.. Signed by Magistrate Judge Colin H. Lindsay on 6/1/2016. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-598-CRS-CHL

JAMES H. POGUE,

Plaintiff,

v.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,

Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on two motions for extensions of existing case
management deadlines. First, Plaintiff James H. Pogue (“Pogue”) has filed a motion for an
extension of time to complete discovery (DN 46). Defendant The Northwestern Mutual Life
Insurance Company (“Northwestern Mutual”) filed a response in opposition, and Pogue filed a
reply. (DN 47, 50.) Later, Northwestern Mutual filed a motion for an extension of time for
submission of dispositive motions (DN 56).

Pogue filed a response in opposition, and

Northwestern Mutual filed a reply. (DN 58, 62.) Both matters are now ripe for review. 1 For the
following reasons, Pogue’s motion to extend the discovery deadline is granted in part and
denied in part, and Northwestern Mutual’s motion to extend the dispositive motion deadline is
granted.
BACKGROUND
This action arises from Northwestern Mutual’s denial of a disability insurance claim filed

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Pursuant to LR 7.1(b), a memorandum opposing a motion for extension of time must be filed within seven
(7) days of service of the motion. LR 7.1(b) does not provide for the filing of replies in support of motions for
extensions. In this case, neither party complied with the terms of LR 7.1(b). Rather, each party filed a response in
opposition more than seven days after service of the respective motion for extension, and each party filed a reply in
support of his or its motion. Because the parties’ actions in violation of LR 7.1(b) mirrored one another, and
because the basis for each motion is tied to larger issues related to discovery motions that were pending at the time
the motions for extension were filed, the Court finds that the errors were harmless and will accept the responses and
replies as timely and properly filed. The parties and their counsel shall be mindful of the terms of LR 7.1(b) in the
future.

by Pogue. Pogue is a physician who alleges that, due to a number of mental and physical health
conditions, he is completely disabled from practicing medicine. Pogue initiated this action in
Jefferson Circuit Court and Northwestern Mutual removed it to this Court. On December 2,
2015, the Court entered an order (DN 41) extending by sixty (60) days each party’s deadline to
disclose its expert witnesses and the deadline for discovery. The new deadlines, which remain in
effect at present, are as follows:
(1) January 16, 2016 for Pogue’s expert disclosure;
(2) February 15, 2016 for Northwestern Mutual’s expert disclosure;
(3) February 29, 2016 for rebuttal experts;
(4) March 15, 2016 for discovery; and
(5) May 16, 2016 for dispositive motions.
(See DN 32, 41.)
1. Pogue’s Motion for Extension of Discovery and Expert Deadlines
Pogue asks the Court to extend the deadlines for his expert disclosure, rebuttal expert
disclosure, and discovery. The basis for his motion is that his “ability to prepare his case has
been hampered by his inability to take the [Rule 30(b)(6) deposition of Northwestern Mutual’s]
designated representative.” (DN 46 at 1.) He alleges that because Northwestern Mutual objected
to a Rule 30(b)(6) deposition as noticed by Pogue, he has been unable to complete discovery as
needed. He states that he will be unable to “fairly determine necessary expert and rebuttal
witnesses and unable to complete follow-up discovery” until after the 30(b)(6) deposition. (Id. at
2.) Based on the amount of time between the date noticed for that deposition and the existing
deadlines, Pogue requests a 30-day extension of his expert disclosure deadline, a 60-day
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extension of his rebuttal expert deadline, and a 75-day extension of the discovery deadline.
Pogue contends that Northwestern Mutual “will in no way be prejudiced” if his motion is
granted. (Id. at 3.)
In response, Northwestern Mutual points to its motion for protective order (DN 33) and
notes that its only objection to the 30(b)(6) deposition was to the noticed location, Louisville,
Kentucky, as it sought to appear instead at its principal place of business in Milwaukee,
Wisconsin. The Court granted the motion for protective order, holding that Pogue must depose
Northwestern Mutual’s corporate representative in Milwaukee, its principal place of business.
(DN 63.)
In relation to the deadline for Pogue’s expert disclosure, Northwestern Mutual argues that
where, as here, a party files a motion for extension after the relevant deadline has expired, the
applicable standard is excusable neglect. Specifically, Northwestern Mutual contends that after
the expiration of the existing deadline for Pogue’s expert disclosure, its counsel contacted
Pogue’s counsel and inquired as to the status of his expert disclosure. (DN 47-1.) In an email
response, Pogue’s counsel stated that he had identified his experts in October 2015. (DN 47-2.)
Northwestern Mutual avers that it relied upon that representation by Pogue’s counsel and argues
that Pogue should not now be permitted to obtain new deadlines. In relation to the deadlines for
rebuttal expert disclosure and discovery, Northwestern Mutual contends that Pogue has failed to
establish good cause for extensions.
In his reply, Pogue argues that because he timely noticed a 30(b)(6) deposition, he should
not be held to an excusable neglect standard.

He contends that it is commonplace for a

deposition of a corporate representative to reveal additional necessary discovery, and that it was
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Northwestern Mutual’s refusal to sit for a deposition that necessitated extensions of the existing
deadlines. Pogue further argues that, even if the Court finds that the excusable neglect standard
applies, he has satisfied the standard for the following reasons: (1) Northwestern Mutual will not
suffer any prejudice if the motion is granted; (2) the extensions will not unfairly delay the
proceedings, because the timeframes that he requests are exactly proportional to the existing
scheduling order; (3) he has articulated the reason for his requested extension – that the parties
require a ruling on Northwestern Mutual’s motion for protective order; (4) Northwestern Mutual
caused the delay by refusing to comply with the 30(b)(6) deposition notice; and (5) he filed his
motion for extension in good faith.
2. Northwestern Mutual’s Motion for Extension of Dispositive Motion Deadline
Northwestern Mutual has now filed a motion (DN 56) to extend the May 16, 2016
deadline for filing dispositive motions. It points to the number of motions pending at the time of
its motion for extension and contends that such motions will affect its ability to comply with the
existing deadline. (See DN 56 at 1-2.) It requests that the dispositive motion deadline be reset at
least 90 days after the completions of the depositions of Dr. Roy Asta and Dr. Bracken Lewis.
(See DN 48, 51, 54, 60 (motions related to those individuals).)
In response, Pogue states that he does not oppose Northwestern Mutual’s motion so long
as any extension of the dispositive motion deadline would apply to both parties. He further
argues that to the extent that Northwestern Mutual requests an extension of the discovery
deadline, such request should be denied. Specifically, he contends that Northwestern Mutual
fails to establish good cause for an extension of the discovery deadline; rather, it conclusively
states that an extension is necessary because resolution of pending motions will affect the
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completion of discovery. He points to his motions to quash deposition notices of Dr. Asta and
Dr. Lewis (DN 48, 51), arguing that Northwestern Mutual is not entitled to depose those
individuals, and that he would be prejudiced were the Court to extend discovery to allow
Northwestern Mutual to conduct those depositions.
In reply, Northwestern Mutual states that it requires an extension of its dispositive
motions deadline entirely because of Pogue’s actions in obstructing the depositions of Dr. Asta
and Dr. Lewis. It states that Pogue’s purported inability to complete discovery and comply with
the existing dispositive motion deadline is a result of his own actions and not any action on the
part of Northwestern Mutual. It incorporates by reference its briefing related to Dr. Asta and Dr.
Lewis and its motion for protective order related to the location of the Rule 30(b)(6) deposition.
DISCUSSION
A scheduling order may be modified only for good cause and with the Court’s consent.
Fed. R. Civ. P. 16(b)(4). In this case, both parties request that the Court modify certain existing
deadlines. As should be clear from the above discussion, the parties’ arguments regarding
extensions of existing deadlines are intertwined with their arguments as to various discoveryrelated disputes. There is no need to address the substantive aspects of such discovery disputes
here, as the Court has done so in depth in several recent memorandum opinions and orders. (See
DN 63 (granting Northwestern Mutual’s motion for protective order in relation to 30(b)(6)
deposition), DN 65 (granting Northwestern Mutual’s motion to compel production of Pogue’s
Social Security disability file), DN 69 (denying Pogue’s motion to quash subpoena of Dr.
Lewis), and DN 70 (addressing several motions related to Dr. Asta).) In short, for the reasons set
forth below, the Court finds that good cause exists to modify some of the case management
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deadlines that are presently in effect in this case, and that good cause does not exist to support
modifying certain other deadlines. The distinctions are explained below.
1. Pogue’s Motion for Extension of Discovery and Expert Deadlines
For the following reasons, Pogue’s motion for extension of the existing discovery and
expert witness deadlines is granted in part and denied in part.
a. Discovery Deadline
Pogue’s sole argument in support of extending the deadline for discovery is that
Northwestern Mutual impeded his attempt to depose its representative. The Court disagrees. In
granting Northwestern Mutual’s motion for protective order with respect to the location of the
Rule 30(b)(6) deposition, the Court expressly rejected Pogue’s arguments as to the location of
the deposition. The law requires Pogue to take the 30(b)(6) deposition at Northwestern Mutual’s
principal place of business in Milwaukee, Wisconsin (or by video deposition, should he accept
the alternative solution offered by Northwestern Mutual). Consistent with that decision, Pogue is
entitled to an extension of the discovery deadline for the limited purpose of conducting a
30(b)(6) deposition. The Conclusion section below sets a deadline for him to do so.
The Court concludes that good cause does not exist for an extension of the discovery
deadline beyond that limited purpose. The Court is cognizant of Pogue’s argument that the
30(b)(6) deposition may lead to a need for additional discovery. However, in the context of this
case, which is rife with discovery disputes and distrust among counsel, the Court finds that it is
necessary for the Court to oversee any additional discovery that either party contends is needed
following the completion of the 30(b)(6) deposition (or following the depositions of Pogue’s
treating physicians).

Accordingly, should either party contend that additional discovery is
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needed subsequent to the 30(b)(6) deposition, such party shall request a telephonic conference
with the Court.
b. Expert Disclosures
Pogue also requests an extension of the deadline for his expert disclosure. This request is
denied. Pogue filed his motion for extension (DN 46) on February 23, 2016. The deadline for
Pogue to disclose expert witnesses expired on January 16, 2016. (DN 32, 41.) Because the
motion for extension was filed out of time, the heightened standard in Rule 6(b) of the Federal
Rules of Civil Procedure applies. Rule 6(b) provides as follows: “When an act may or must be
done within a specified time, the court may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B). Determinations of whether a party failed to act because of excusable neglect are
within the trial court’s discretion. See Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th
Cir. 2006) (“We review a district court’s determination of excusable neglect, or lack thereof,
under the abuse-of-discretion standard.”) (citation omitted).
The Sixth Circuit has set forth five factors to be balanced by the district court in making a
determination as to excusable neglect pursuant to Rule 6(b)(1)(B). The five factors are as
follows: “(1) the danger of prejudice to the nonmoving party; (2) the length of the delay and its
potential impact on judicial proceedings; (3) the reason for the delay; (4) whether the delay was
within the reasonable control of the moving party; and (5) whether the late-filing party acted in
good faith.” Id. (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
395 (1993)). In his reply, Pogue argued that the excusable neglect standard does not apply

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because Northwestern Mutual’s refusal to sit for the 30(b)(6) deposition necessitated the
extensions he seeks. He did, however, briefly address the five excusable neglect factors.
The Court will now apply the five factors set forth by the Sixth Circuit. First, the Court
finds that were it to extend the deadline for expert witnesses as requested by Pogue, there would
be a danger of prejudice to Northwestern Mutual. On January 21, 2016, less than a week after
the deadline for Pogue to serve his expert disclosure, Northwestern Mutual inquired as to
whether he intended to identify experts. (DN 47-1 at 2.) On the same day, Pogue’s counsel
replied definitively that he previously disclosed expert witnesses, pointing to his disclosure of
Pogue’s treating physicians, Dr. Asta and Dr. Lewis, on October 15, 2015. (Id. (“Plaintiff’s
disclosures were sent on October 15, 2015.”); see id. at 4-10 (Pogue’s expert witness disclosures
pursuant to Fed. R. Civ. P. 26(a)(2)(C) and supplementation of discovery pursuant to Fed. R.
Civ. P. 26(e)).) Pogue’s counsel said nothing to indicate that he intended to supplement his
existing disclosures or disclose additional experts at a later date. Then, on February 23, 2016,
just over a month after this email exchange, Pogue filed the motion for extension. Northwestern
Mutual justifiably relied upon Pogue’s counsel’s January 21, 2016 email, which implied that
Pogue would not supplement his expert disclosure of October 15, 2015. It would be prejudicial
to Northwestern Mutual were the Court to now give Pogue additional time to disclose expert
witnesses.
Second, whether the delay in filing the motion for extension had an impact on the judicial
proceedings is a close question. There have been several discovery related-motions before the
Court in recent months. It is difficult to say whether this particular delayed filing has influenced
the stagnation of this case to date. However, were the Court to grant the extension Pogue seeks,
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it would undoubtedly cause further delays in the progression of this case. Pogue makes much of
the fact that the extensions he seeks would be proportional to the existing deadlines and contends
that granting his motion would not lead to further delays. The Court disagrees. As has been
noted multiple times in the Court’s recent memorandum opinions, this case has suffered from
numerous discovery disputes, some of which have, unfortunately, involved gamesmanship and
misrepresentation by Pogue. To allow Pogue 60 more days, as he requests, to identify expert
witnesses when he did not even seek to extend the existing deadline until after it had passed
would unnecessarily delay the progression of this action and may even serve to reward Pogue for
his neglect.
Third, Pogue has not offered a sufficient reason for his delay in seeking an extension. He
contends that an extension is needed because the parties required a ruling on Northwestern
Mutual’s motion for protective order before they could complete discovery, expert-related or
otherwise. Pogue misses the mark. This factor relates to the reason for the delay in seeking an
extension, not the reason that the moving party believes an extension is needed. Pogue has not
offered any reason for his failure to seek to extend the expert deadline prior to the January 16,
2016 deadline.
Fourth, the delay in seeking an extension of the expert disclosure deadlines was within
Pogue’s control.

Again, Pogue misses the mark in arguing that the delay was caused by

Northwestern Mutual’s failure to comply with his 30(b)(6) deposition notice. The question is not
what caused the purported need for an extension of the relevant deadlines.2 Rather, the relevant

2

Even if that were the relevant inquiry, the Court’s opinion granting Northwestern Mutual’s motion for
protective order as to the location of the 30(b)(6) deposition shows that its refusal to participate in the deposition on
the terms sought by Pogue was reasonable and justified under the Rules. Moreover, Northwestern Mutual timely

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question is whether Pogue’s failure to file the motion for extension in a timely manner was
caused by something out of his control. Based on the record before the Court, the answer is no.
The Court is not aware of any impediment to Pogue filing a timely motion for extension prior to
the expiration of the January 16, 2016 deadline for his expert disclosure. In fact, if his counsel
simply missed the deadline in good faith, he could have sought an extension immediately upon
Northwestern Mutual’s January 21, 2016 inquiry as to whether he intended to serve expert
disclosures. Instead, Pogue waited until February 23, 2016, over one month after the deadline
and Northwestern Mutual’s inquiry, to seek an extension. Pogue has not presented the Court
with any information that would show that his untimely motion for extension was caused by
something outside of his control.
The fifth and final inquiry is whether the moving party acted in good faith. In this
instance, the Court is not prepared to conclude that Pogue or his counsel did not act in good faith
by filing the motion out of time. However, the other four factors in the excusable neglect
balancing test enunciated by the Sixth Circuit are met in this instance. Considering the five
factors together, it is clear that four factors weigh heavily in favor of a finding that his untimely
motion for extension was not a matter of excusable neglect. Accordingly, Pogue’s request for an
extension of the deadline for his expert witness disclosure is denied.
c. Rebuttal Experts
Pogue filed his motion for extension on February 23, 2016, six days before the February
29, 2016 deadline for rebuttal experts. Accordingly, the motion was timely for purposes of the
rebuttal expert deadline. The excusable neglect standard therefore does not apply; the Court will

served its expert disclosure (see DN 47-2), demonstrating an understanding that absent an order of the Court, the
existing case management deadlines remain in effect regardless of how many discovery-related motions are pending.

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instead apply the usual good cause standard applicable to timely requests for modification of
scheduling orders. Until today, the parties have had no way of knowing how the Court would
decide the motion for extension as to the other expert-related deadlines. That is, prior to
receiving the instant opinion, the parties would not know whether the opposing party would be
permitted to disclose additional experts, and in turn, whether and for what purpose they would
require rebuttal experts.
Based on the foregoing, the Court finds that good cause exists to support a brief extension
of the rebuttal expert deadline. Pogue requests a 60-day extension of the rebuttal expert deadline.
The Court finds that this is excessive given the amount of time that has passed since each party
served its expert disclosures. (See DN 47-1 at 4-6 (Pogue’s expert disclosures, served on
October 15, 2015); DN 47-2 (Northwestern Mutual’s expert disclosures, served on February 15,
2016).) Accordingly, the Court will grant an extension until June 24, 2016 for either party to
serve rebuttal expert disclosures.
2. Northwestern Mutual’s Motion for Extension of Dispositive Motion Deadline
Northwestern Mutual’s motion for extension of the dispositive motion deadline (DN 56)
may be resolved more quickly. The Court concludes that good cause exists to support extending
the May 16, 2016 deadline for dispositive motions. A dispositive motion filed by either party
would almost certainly rely on one or more of the depositions that have yet to be taken in this
case as a result of the ongoing discovery disputes. The depositions in question are the Rule
30(b)(6) deposition of Northwestern Mutual sought by Pogue and those of Dr. Roy Asta and Dr.
Bracken Lewis, Pogue’s treating physicians, sought by Northwestern Mutual. Additionally, the
Court concurs with Pogue that the dispositive motion deadline should be reciprocal.
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Accordingly, Northwestern Mutual’s motion for extension of the dispositive motion deadline is
granted. Any dispositive motions in this case must be filed no later than 60 days after the latest
of the three depositions permitted by the Court (that is, the depositions of Dr. Lewis, Dr. Asta,
and Northwestern Mutual’s representative).
The instant memorandum opinion and order resolves the last two of at least eight motions
filed in this case concerning discovery and other pretrial matters. Having resolved all of those
motions, the Court finds that it is appropriate to establish parameters for the completion of
discovery and the filing of dispositive motions, if any. Such parameters are set in the Conclusion
section below.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED as follows:
(1)

Pogue’s motion for extension (DN 46) is GRANTED IN PART and DENIED IN

PART as set forth below:
(a)

The deadline for completion of discovery is EXTENDED for the sole

purpose of permitting the parties to conduct the following depositions: Pogue’s Rule
30(b)(6) deposition of Northwestern Mutual and Northwestern Mutual’s depositions of
Pogue’s treating physicians, Dr. Roy Asta and Dr. Bracken Lewis. The terms related to
such depositions that are set forth in previous orders of the Court (see DN 63, 69, 70.)
REMAIN IN EFFECT.
(i)

The parties shall conduct all three depositions no later than July

22, 2016.

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(ii)

Should either party contend that it needs to take additional

discovery as a direct result of any of the three permitted depositions, such party
shall request a telephonic conference with the Court by contacting Case Manager
Theresa Burch at [e-mail].
(b)

Pogue’s request that the Court extend the deadline for his expert

disclosure is DENIED.
(c)

The deadline for disclosure of rebuttal experts is extended to June 24,

2016.
(2)

Northwestern Mutual’s motion for extension (DN 56) is GRANTED.

Any

dispositive motions shall be filed no later than 60 days after the last of the three depositions
permitted herein. Upon the completion of all three depositions, the parties shall NOTIFY the
Court of the dates upon which the depositions were conducted so that the Court can set a date
certain for filing of dispositive motions.
(3)

The Court’s standing order regarding any future discovery-related motions

REMAINS IN EFFECT. Should either party wish to file a motion related to discovery, it shall
first request and participate in a telephonic conference with the Court. The parties may request
such

a

conference

by

contacting

Case

Manager

Theresa

Burch

[e-mail].
June 1, 2016

Colin Lindsay, MagistrateJudge
United States District Court

cc: Counsel of record

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at