Kempf v. Lumber Liquidators, Inc.

Filing 55

MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge Regina S. Edwards on 1/18/2019 granting in part and denying in part 35 Motion to Amend/Correct. Expert Witness (Defendant) due by 3/18/2019. Expert Witness (Plaintiff) due by 2/18/2019. Parties shall comply as set forth in Order. cc: Counsel (MEJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-00492-DJH
KAREN KEMPF

PLAINTIFF

VS.
LUMBER LIQUIDATORS, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
Before the Court is the Motion of Plaintiff, Karen Kempf (“Kempf”), seeking to amend the
Case Management Plan. (DN 35). Defendant, Lumber Liquidators, Inc. (“Lumber Liquidators”),
filed a Response in opposition. (DN 38). Kempf subsequently filed a Reply. (DN 39). This matter
is ripe for adjudication. For the following reasons, Kempf’s Motion to Amend the Case
Management Plan is GRANTED in part and DENIED in part.

BACKGROUND
On August 1, 2016, Kempf filed her Complaint, individually and on behalf of all others
similarly situated, against Lumber Liquidators. (DN 1). In her Complaint, Kempf alleged that
wood flooring sold by Lumber Liquidators, specifically Morning Star Bamboo Flooring, was
defective. (DN 1 at p. 9-10). Lumber Liquidators filed a Motion to Dismiss, Stay, or in the
Alterative to Transfer the Action. (DN 4). The District Court denied Lumber Liquidator’s Motion.
(DN 14).1

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Pursuant to the District Court’s Memorandum Opinion and Order (DN 14), Lumber Liquidators moved to
withdraw its alternative Motion because a parallel class action case, Gold v. Lumber Liquidators, Inc., No. 3:14-cv05373-RS (N.D. Cal.) (hereinafter “Gold”), limited the scope of its class. See (DN 13). At the time Lumber

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On October 26, 2017, the parties jointly filed their Rule 26(f) Planning Meeting Report and
proposed case scheduling deadlines. (DN 19). Following a telephonic conference with the parties
during which they discussed the schedule, the Court entered the Scheduling Order using the expert
disclosure and class certification deadlines as proposed. (DN 25). Pursuant to the Order, Kempf’s
identification of expert witnesses was due by September 14, 2018. (Id.). The deadline for Lumber
Liquidators to identify its expert witnesses was October 15, 2018. (Id.).
Kempf’s Motion
On September 13, 2018, the day before the deadline for Plaintiff’s identification of expert
witnesses, Kempf filed the subject Motion to Amend the Case Management Plan (“Scheduling
Order”) seeking a significant additional period of time in which to disclose expert witnesses. (DN
35). Kempf’s Motion asks the Court to amend the existing Scheduling Order and “vacate the
deadlines for expert disclosures pending resolution of the Motion for Class Certification.” (Id. at
p. 1).
Pursuant to the Scheduling Order entered on November 20, 2017, “Plaintiff’s motion for
class certification shall be filed no later than January 15, 2019, with Defendant’s response due no
later than February 15, 2019, and Plaintiff’s reply brief due no later than March 12, 2019. Any surreply shall be filed no later than March 21, 2019.” (DN 25 at p. 2). Thus, Kempf now moves the
Court to amend the Case Management Plan such that the identification of expert witnesses shall
not be due until all motion practice for class certification is complete, and Plaintiff’s Motion for

Liquidators filed its Motion to Dismiss (DN 4) in Kempf, Gold was being litigated as a nationwide class action
lawsuit. (DN 14 at p. 1). However, the geographic scope of Gold was narrowed such that Kentucky purchasers were
excluded from Gold’s putative class. (DN 13 at p. 1). As of the date of the entry of this Order, Lumber Liquidators’
Motion for Summary Judgment in Gold was denied. See ECF No. 256 (“Order Denying Motion for Summary
Judgment”), Gold v. Lumber Liquidators, Inc., No. 3:14-cv-05373-RS (N.D. Cal.). A trial in Gold v. Lumber
Liquidators, Inc. is scheduled for February 25, 2019 before the Honorable Richard Seeborg, United States District
Judge for the Northern District of California.

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Class Certification is resolved. (DN 35 at p. 3). As of the date of the filing of this Order, Kempf
has not filed her Motion for Class Certification.
As the basis for her Motion to Amend, Kempf provides that her request to modify the
Scheduling Order will “promote judicial efficiency.” (Id. at p. 1). In support of this argument,
Kempf states that discovery is extensive and ongoing, primarily as a result of Lumber Liquidators’
defense in a parallel class action case in the Northern District of California, Gold v. Lumber
Liquidators, Inc., No. 3:14-cv-05373-RS. (Id.). According to Kempf, since the parties began
engaging in discovery, Lumber Liquidators has produced over 800,000 pages of documents, and
additional information is forthcoming from the defendant.2 (Id. at p. 1-2). Additionally, Kempf
claims that discovery has revealed complaints to Lumber Liquidators about the product at issue
from more than 150 Kentucky purchasers.3 (Id. at p. 2). Thus, Kempf argues that if Plaintiff
identified experts prior to the Court certifying the class, opinions from such experts may be overly
broad or may be missing “critical information from other class members” in this litigation. (Id.).
Furthermore, Kempf claims that amending the Scheduling Order as requested would not impact
Lumber Liquidators, because the identification of Defendant’s expert witnesses will likely be the
same as those provided in Gold. (Id.).
Kempf’s Motion also appears to fault the Scheduling Order for setting the deadline for her
identification of experts before the resolution of Plaintiff’s Motion for Class Certification. (Id.)

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In the instant Motion, Kempf states that Lumber Liquidators still needs to produce, among other things, identifying
information about Kentucky purchasers, which was redacted. (DN 35 at p. 2). On December 10, 2018, Kempf filed a
Motion to Compel requesting the Court to order Lumber Liquidators to provide the contact information for putative
class members. (DN 45). As of the date of the entry of this Order, motion practice has been completed on Kempf’s
Motion to Compel. The Court will address Kempf’s Motion to Compel in a separate opinion.
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To support her Motion to Amend the Case Management Plan (DN 35), Kempf filed three exhibits, labeled
“Confidential” by Lumber Liquidators, under seal. See (DN 36 at p. 1) and (DN 37). Kempf claims that these
exhibits demonstrate that Lumber Liquidators was aware of potential problems with the bamboo flooring at issue in
this case for years before Kempf purchased the product, “but continued to market it as a superior alternative to wood
flooring.” (DN 35 at 1).

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(emphasis added). More specifically, Kempf argues that the Scheduling Order should be amended
because the Court’s ruling on class certification will directly impact the scope of the case, including
the identification of expert witnesses. (Id.). Further still, Kempf claims that expert witnesses will
not be needed to establish commonality for class certification purposes. (Id.). Thus, Kempf asks
the Court to grant her Motion to Amend the Case Management Plan and vacate the expert
discovery deadlines such that the deadlines for expert disclosures shall be set after the resolution
of Plaintiff Motion for Class Certification. (Id. at p. 3).
Lumber Liquidators’ Response
Lumber Liquidators raises two arguments in its Memorandum in Opposition. (DN 38).
First, Lumber Liquidators argues that Kempf has not shown good cause to amend the Case
Management Plan as required by Rule 16(b)(4). (DN 38 at p. 4). To substantiate this claim, Lumber
Liquidators contends that Kempf did not demonstrate diligence to meet the September 14, 2018
deadline for Plaintiff’s identification of expert witnesses. (Id. at p. 5). Lumber Liquidators states
that Kempf has had a significant amount of time to review the discovery documents that she
requested. (Id.). More specifically, Lumber Liquidators claims that the documents Kempf filed as
exhibits to her Motion to Amend were provided to Kempf no later than April 2018. (Id.). These
documents, Lumber Liquidators reasons, appear to be Kempf’s justification that good cause exists
because the documents have changed Kempf’s theory of the case. (Id.). However, Lumber
Liquidators maintains that there is no new information in these documents that changes Kempf’s
theory of the case or “that necessitates this total pivot from the previously-ordered and agreedupon litigation of this matter.” (Id. at p. 6).
Second, Lumber Liquidators claims that it will suffer undue prejudice if Kempf’s proposed
amendment is granted. (Id.). In particular, Lumber Liquidators contends that if Kempf’s proposed

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schedule alteration is adopted, Lumber Liquidators will be prejudiced by litigating a class action
claim without the identification of Plaintiff’s expert witnesses and reports. (Id.). Thus, Lumber
Liquidators requests the Court to deny Kempf’s proposed amendment to the Case Management
Plan, or alternatively, extend all deadlines set forth in the Scheduling Order. (Id. at p. 7).
Kempf’s Reply
Noticeably, Kempf’s Reply does not explicitly address Lumber Liquidators “good cause”
argument under Rule 16(b). Rather, Kempf’s Reply maintains that Lumber Liquidators will not be
prejudiced if the Scheduling Order is amended. (DN 39 at p. 2). In support of this claim, Kempf
explains that the Scheduling Order previously agreed to in this case no longer makes sense because
the Scheduling Order was entered before any discovery was completed. (Id.). Now, upon review
of discovery documents received from Lumber Liquidators, Kempf states that she has a better
understanding of the product defect in the wood flooring at issue in this litigation. (Id.). As such,
Kempf “does not believe that an expert is required in order to adjudicate the class certification
motion.” (Id.). Instead, Kempf claims that there is no reason to bar post-certification expert
discovery to assist the trier of fact to “understand the mind-numbing intricacies of moisture’s effect
on bamboo.” (Id. at p. 2-3). Thus, Kempf requests postponement of the deadline for expert
disclosure so that she does not waive the ability to identify an expert after the class, if any, is
certified. (Id.).
October 10, 2018’s Telephonic Status Conference
The Court conducted a telephonic status conference on October 10, 2018. During the
conference, counsel for Kempf reiterated the arguments briefed in Plaintiff’s Motion to Amend
the Case Management Plan (DN 35) and her Reply in Support of the Motion (DN 39). Primarily,
Kempf’s discussion focused on the need to preserve the expert disclosure deadline until the

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resolution of class certification, because according to counsel, experts will not be needed for the
purposes of class certification.
Maintaining their objection to Kempf’s Motion to Amend the Case Management Plan,
counsel for Lumber Liquidators argued that Plaintiff cannot keep changing her theory of the case.
Additionally, defense counsel claimed that the proposed amendment set forth in Kempf’s Motion
was impacting the rest of the schedule. More specifically, Lumber Liquidators’ counsel stated that
Kempf’s Motion directly affected the upcoming deadline for Defendant’s expert disclosures,
which was set for October 15, 2018. Accordingly, Lumber Liquidators motioned a verbal request
to the Court to stay the October 15, 2018 deadline for identification of Defendants expert
witnesses.
Following the telephonic status conference, the Court issued an Order granting Lumber
Liquidators’ request to stay the October 15, 2018 deadline for identification of Defendant’s expert
witnesses. (DN 41).

LEGAL STANDARD
Modifications to a scheduling order are governed by Rule 16(b) of the Federal Rules of
Civil Procedure. Fed. R. Civ. P. 16(b). Pursuant to subsection (b)(4) of the Rule, “a schedule may
be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
The decision to grant a motion to modify a scheduling order under Rule 16(b) is within the
Court’s discretion. Leary v. Daeschner, 349 F.3d. 888, 909 (6th Cir. 2003). “The primary measure
of Rule 16’s good cause standard is the moving party’s diligence in attempting to meet the case
management order’s requirements.” Inge v. Rock Fin. Group, 281 F.3d. 613, 625 (6th Cir. 2002)
(internal citation and quotation marks omitted); see also, Leary, 349 F.3d at 906 (a Court may

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modify a scheduling order for good cause only if a deadline “cannot reasonably be met despite the
diligence of the party seeking the extension.”). The good cause analysis also requires a
determination of “whether the opposing party will suffer prejudice by virtue of the amendment.”
Id.

DISCUSSION
I.

Good Cause
Applying these principles to the facts presented, the Court finds that Kempf has

demonstrated good cause for granting, in part, her Motion to Amend the Case Management Plan
(DN 35). (emphasis added). The Court must emphasize, however, that Rule 16(b)’s good cause
standard is met in this case but only by the thinnest of margins.
The deadline for Kempf’s expert disclosures was September 14, 2018. See (DN 25). On
September 13, 2018, Kempf filed the instant Motion to amend the Scheduling Order (DN 35).
Accordingly, Kempf’s Motion was timely for purposes of the expert disclosure deadline. However,
as Lumber Liquidators has pointed out in its Memorandum in Opposition to Kempf’s Motion to
Amend (DN 38), prior to filing her Motion, Kempf repeatedly “represented to the Court that
litigation continued on course and without issue.” (DN 38 at p. 2-3) (citing DN 29, DN 32, & DN
34). Thus, the Court finds that Kempf has not made a sufficient showing of good cause required
to justify the requested extension such that the deadlines for expert disclosures shall be vacated
pending the resolution of the Motion for Class Certification.
As explained above, the good cause requirement of Rule 16(b) focuses on the moving
party’s diligence. In attempting to demonstrate her diligence, Kempf provides in her Motion to
Amend that necessary information, which Lumber Liquidators voluntarily agreed to produce, was

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still needed.4 (DN 35 at p. 2). As defense counsel confirmed during the October 10, 2018
telephonic status conference, Lumber Liquidators continued to supplement information to Kempf
as recently as October 9, 2018. This information, Kempf claims, is directly related to class
certification, the scope of the case, and ultimately, expert disclosures.
Additionally, Kempf has repeatedly maintained that expert opinions previously thought to
be needed to establish commonality will no longer be needed for class certification. See (DN 35 at
p. 2); (DN 39 at p. 2). Instead, Kempf states that “she does not want to waive the ability to identify
an expert once the class is certified that can help a jury understand the mind-numbing intricacies
of moisture’s effect on bamboo.” (DN 39 at p. 2). Therefore, the Court finds, albeit with some
reservations, that Kempf has established good cause to amend the Scheduling Order. Thus, despite
Kempf’s failure to articulate her explanations as good cause, such cause is apparent from the
reasoning provided by Plaintiff’s counsel in Kempf’s Motion to Amend, her Reply in Support of
the Motion, and counsels’ representations made during the October 10, 2018 telephonic status
conference. Accordingly, sufficient good cause has been shown with regard to Kempf’s Motion to
Amend the Case Management Plan.
II.

Prejudice
In addition to assessing whether good cause exists, courts may also consider whether the

non-moving party will be prejudiced. Smith v. Holston Med. Group, P.C., 595 F. App’x 474, 478
(6th Cir. 2014) (citing Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)); see also Leary
v. Daeschner, 349 F.3d. 888, 909 (6th Cir. 2003) (explaining that “in addition to Rule 16’s explicit
‘good cause’ requirement,” the Sixth Circuit held “that a determination of the potential prejudice

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Again, the Court recognizes that Kempf filed a Motion to Compel relating to the redacted identifying information
of Kentucky purchasers and putative class members on December 10, 2018 (DN 45), which will be adjudicated in a
separate opinion.

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to the nonmovant also is required when a district court decides whether or not to amend a
scheduling order.”).
In its Memorandum in Opposition, Lumber Liquidators argues that Defendant would suffer
significant and undue prejudice if the Court were to adopt Kempf’s “drastic” amendment to the
Scheduling Order as proposed in her Motion. See (DN 38 at pgs. 1, 6, & 7). More specifically,
Lumber Liquidators states that if Kempf’s proposed schedule alteration was granted, Defendant
“would be forced to litigate a class claim that its flooring has a class-wide defect without Plaintiff’s
expert reports identifying what the alleged defect is or opining that such a defect even exists.” (DN
38 at p. 6).
To an extent, the Court agrees with Lumber Liquidators such that the alteration to the
Scheduling Order proposed in Kempf’s Motion is severe. Kempf should have anticipated the need
to bifurcate the identification of expert witnesses for class certification and post-certification
expert discovery based on the merits of the case. As such, the Court finds that if the deadlines for
expert disclosures were vacated until Plaintiff’s Motion for Class Certification, which has not yet
been filed, is resolved, Lumber Liquidators would suffer prejudice. Accordingly, the Court finds
that a modified amendment to the deadlines for expert disclosures is appropriate and will not result
in prejudice against Lumber Liquidators.
Based on the foregoing, the Court finds that good cause exists to support a brief extension
of the deadlines for the identification of expert witnesses for both Plaintiff and Defendant. Kempf
requests that the expert discovery deadline be vacated and reset post-class certification. The Court
finds that this is excessive given the amount of time that has passed since the instant Motion was
filed. Accordingly, the Court will grant an extension pursuant to the timeline set forth in this Order.

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CONCLUSION
For the reasons explained above, the Court finds good cause to grant, in part, Kempf’s
Motion to Amend the Case Management Plan (DN 35).

ORDER
Accordingly, and the Court being otherwise and sufficiently advised, IT IS ORDERED
as follows:
1) Kempf’s Motion to Amend the Case Management Plan (DN 35) is GRANTED in
part and DENIED in part.
a. Kempf’s request to vacate the deadlines for expert disclosures pending the
resolution of Plaintiff’s Motion for Class Certification is DENIED.
b. Kempf’s Motion to Amend the Case Management Plan is GRANTED
pursuant to the timeline set forth below:
i. Plaintiff’s Identification of Experts shall be due no later than
February 18, 2019.
ii. Defendants’ Identification of Experts shall be due no later than
March 18, 2019.
IT IS SO ORDERED.

January 18, 2019

Copies:

Counsel of Record

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