Pogue v. The Northwestern Mutual Life Insurance Company

Filing 89

MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 7/7/2016, regarding 77 Plaintiff's objections to the Magistrate Judge's 71 partial denial of his motion. The Court will enter a separate order in accordance with this Opinion.cc: Counsel (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
PLAINTIFF

JAMES H. POGUE

v.

CIVIL ACTION NO. 3:14-cv-00598-CRS

NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
MEMORANDUM OPINION

DEFENDANT

Plaintiff James H. Pogue moved to extend the deadlines for expert disclosure, rebuttal
expert disclosure, and discovery. ECF No. 46. The magistrate judge granted the motion in part
and denied the motion in part. June 1, 2016 Op. & Order, ECF No. 71. Pogue now objects to the
magistrate judge’s partial denial of his motion. Pl.’s Obj., ECF No. 77.
The magistrate judge granted an extension for the completion of select discovery matters.
This permitted the parties to conduct Pogue’s Rule 30(b)(6) deposition on Northwestern Mutual
Life Insurance Company (“Northwestern Mutual”) and Northwestern Mutual’s deposition of Dr.
Roy Asta and Dr. Bracken Lewis. The magistrate judge also found that if the parties need
additional discovery as a result of the permitted depositions, the parties must submit a request
through a telephonic conference. The magistrate judge extended the deadline for rebuttal expert
disclosure to June 24, 2016. The magistrate judge denied Pogue’s request for an extended
deadline for expert disclosure. The Court agrees with the magistrate judge’s rulings and will
overrule Pogue’s objections.
First, Pogue objects to the magistrate judge’s partial denial of his motion to extend the
discovery deadline. In his objection, Pogue recites the arguments in his original motion. In that

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motion and now in his objection, he argues that Northwestern Mutual impeded his to depose its
Rule 30(b)(6) corporate designee. This Court and the magistrate judge have already held that this
is incorrect. See June 16, 2016 Memo. Op., ECF No. 79. The law unequivocally requires Pogue
to take this deposition at Northwestern Mutual’s principal place of business – or, as
Northwestern Mutual has offered, via video deposition. Id. Under Rule 16(b)(4), a discovery
schedule “may be modified only for good cause and with the judge’s consent.” The Court agrees
with the magistrate judge’s decision that good cause does not exist to extend the discovery
deadline. The Court also agrees with the magistrate judge that additional discovery may be
needed. In accord with the magistrate judge’s memorandum opinion, “should either party
contend that additional discovery is needed subsequent to the 30(b)(6) deposition, such party
shall request a telephonic conference with the Court.” 6 – 7. The Court will overrule this
objection.
Second, Pogue objects to the magistrate judge’s denial of Pogue’s motion to extend the
expert disclosure deadline. Pogue filed his motion for an extension more than three weeks past
the original deadline. See Dec. 2, 2015 Order, ECF No. 41; Pl.’s Mot. Ext. Time, ECF No. 46.
As Pogue filed the motion out of time, Rule 6(b)’s heightened pleading standard applies. Under
Rule 6(b)(1)(B), a court may extend a scheduling period “if the party failed to act because of
excusable neglect.” The Sixth Circuit has said that “the governing legal standard for excusableneglect determinations is a balancing of five principal factors: (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.” Nafziger v. McDermott Int’l,
Inc., 467 F.3d 514, 522 (6th Cir. 2006).
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The Court agrees with the magistrate judge’s analysis and determination that Pogue’s
actions lack excusable neglect. Northwestern Mutual relied on Pogue’s counsel’s January 21,
2016 email that implied that Pogue would not supplement the October 15, 2015 expert
disclosure. ECF No. 47-1. Northwestern Mutual may experience prejudice if an extension is
granted to disclose expert witnesses. This would only cause further delay in a matter already
flooded with discovery disputes. Furthermore, Pogue still has not offered any reason for the
delay in seeking an extension. Pogue continues to argue he was awaiting a decision regarding
Northwestern Mutual’s protective order concerning its Rule 30(b)(6) deposition. As the
magistrate judge noted, this answer ignores the relevant factors – Pogue could have easily moved
for an extension of time while awaiting the magistrate judge’s ruling on the protective order.
June 1, 2016 Op. & Order, 8 – 11. The Court will overrule this objection.
Finally, Pogue objects to the duration of the magistrate judge’s extension of the rebuttal
witness deadline. While Pogue does not object to the magistrate judge’s extension of the
deadline, he objects that the deadline was not extended to his initially requested 60 days. Pogue
argues that the rebuttal witness deadline should have been extended to allow the parties to
complete the Rule 30(b)(6) deposition. Pogue misconstrues the pending Rule 30(b)(6) deposition
as the “good cause” prompting the magistrate judge to extend the relevant deadline. Pl.’s Objs.
Mag.’s Op. & Order 3. Rather, the magistrate judge granted a limited extension because prior to
his ruling “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.” June 1, 2016 Mem. Op. & Order, 11 (emphasis added). The Court agrees with
the magistrate judge’s analysis and conclusion. An additional extension is unnecessary as both

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parties served expert disclosures on or before February 15, 2016. Id. The Court will overrule this
objection.
The Court will overrule Pogue’s objections in their entirety.
The Court will enter a separate order in accordance with this opinion.

July 7, 2016

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