Gipson v. Progressive Casualty Insurance Company

Filing 44

MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge Colin H. Lindsay on 8/9/2018 denying 35 Motion to Amend Pre-Trial Schedule. cc: Counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-205-RGJ-CHL

MELISSA GIPSON,

Plaintiff,

v.
PROGRESSIVE CASUALTY INSURANCE COMPANY,

Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion of Plaintiff, Melissa Gipson (“Plaintiff”), to
amend the pre-trial schedule to permit her thirty (30) additional days in which to disclose an expert
witness. (DN 35.) Defendant, Progressive Casualty Insurance Company (“Progressive”), filed a
response in opposition. (DN 38.) Plaintiff did not file a reply. This matter is now fully briefed
and ripe for this Court’s consideration.
For the following reasons, Plaintiff’s Motion to Amend the Pre-Trial Schedule is DENIED.
BACKGROUND
Plaintiff’s expert disclosure deadline was originally November 17, 2017. (DN 8.) On the
deadline, Plaintiff moved for a sixty (60) day extension. (DN 13.) The Parties later submitted an
Agreed Order extending the deadline to February 16, 2018 (DN 14-1), and the Court entered an
Amended Scheduling Order consistent with the same. (DN 22.)
Around the end of January 2018, Plaintiff’s counsel contacted Progressive’s counsel to
request an additional extension of Plaintiff’s expert disclosure deadline, and Progressive
eventually consented to an extension. (DN 35, at PageID # 292; DN 38, at PageID # 313-14.)
However, the Parties disagree regarding the length of the extension that was requested and to which
Progressive agreed. Plaintiff contends she requested and received a sixty (60) day extension (DN

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35, at PageID #292; DN 35-1), but Progressive asserts Plaintiff requested and received a thirty
(30) day extension (DN 38, at PageID # 313-14; DN 38-1; DN 38-2).
It is undisputed that Plaintiff did not disclose an expert prior to April 17, 2017, the
expiration of the sixty (60) day extension she alleges she requested. Instead, the week of April 9,
2018, Plaintiff’s counsel again contacted Defendant’s counsel for an additional thirty (30) day
extension. (DN 35, at PageID # 292; DN 38, at PageID #314.) Defendant’s counsel refused
because the previous extension period had expired. (DN 38, at PageID #314.)
The Parties scheduled a call with the Court to resolve this and another discovery dispute.
(DN 23.) After an April 25, 2018 telephonic status conference, the undersigned ordered the parties
to confer as to whether they could agree on an amended scheduling plan. (DN 29.) In the Parties
Joint Report, they advised they did not come to an agreement. (DN 32.) The Plaintiff then filed
the instant motion. (DN 35.) It is undisputed that Plaintiff has not yet disclosed an expert witness.
DISCUSSION
I.

Legal Standard
Pursuant to Fed. R. Civ. P. 26(a)(2)(D), a party must make expert witness disclosures in

compliance with any deadline ordered by the Court. Further, a scheduling order “may be modified
only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). In evaluating whether
a party has shown “good cause,” a court should also consider
(1)
(2)
(3)
(4)
(5)

when the moving party learned of the issue that is the subject of discovery;
how the discovery would affect the ruling below;
the length of the discovery period;
whether the moving party was dilatory; and
whether the adverse party was responsive to . . . discovery requests.

Gatza v. DCC Litigation Facility, Inc., 717 Fed. App’x 519, 521 (6th Cir. 2017).

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However, “[t]he 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.” Ingle v. Rock
Financial Corp., 281 F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249 F.3d
807, 809 (8th Cir. 2001)); see also Fed. R. Civ. P. 16(b) advisory committee’s note to 1983
amendments (“[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.”); Gatza, 717 Fed.
App’x at 521 (“The central question among these factors is whether a party acted diligently.”).
Additionally, a court should consider “whether the opposing party will suffer prejudice” by the
modification. Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003). “While prejudice is a factor
to be considered, it is not a controlling one.” Needler v. Coca-Cola Refreshments USA, Inc., No.
3:13-cv-781-CRS, 2014 WL 8275991, at *10 (W.D. Ky. Nov. 19, 2014).
II.

Analysis
Plaintiff argues that the Court should modify its scheduling order to permit her thirty (30)

additional days in which to disclose any expert because of the mix up regarding whether
Progressive granted Plaintiff a sixty (60) or thirty (30) day extension of the February 16, 2018
expert disclosure deadline. (DN 22.) Plaintiff states that she “relied in good faith on her
understanding of a 60-day extension to make expert disclosures” and therefore, “good cause exists
to amend the schedule and allow [Plaintiff] 30 days to make her disclosures.” (DN 35, at PageID#
293.) Progressive objects and states that at best, Plaintiff has shown good cause to extend the
discovery deadline to April 17, 2018.1

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Progressive refers to the extended deadline as April 15, 2018, but the Court will assume Progressive intended to cite
sixty (60) days from the February 16, 2018 discovery deadline. Sixty (60) days from February 16, 2018 is April 17,
2018.

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The undersigned agrees with Progressive. Plaintiff’s Motion does not contain any
assertions as to whether Plaintiff diligently attempted to meet her expert disclosure deadline under
the Amended Scheduling Order. Plaintiff simply asserts that the miscommunication as to an
agreed extension entitles her to additional time. The Court notes that regardless of the length of
the extension to which the Parties agreed, neither Party filed a motion to extend the deadline under
the scheduling order as required for an extension. See Fed. R. Civ. P. 16(b)(4) (“A schedule may
be modified only for good cause and with the judge’s consent.”). Accordingly, the Parties’
agreement is not binding upon this Court independent of the ability of either party to meet the
standard under Rule 16.
Plaintiff does not argue that she made any specific attempts to locate an expert or otherwise
diligently attempt to meet the amended deadline under this Court’s January 24, 2018 Order. (DN
22.) Further, Plaintiff is not asking the Court to deem timely a report that was disclosed prior to
the expiration of the extension she thought she had secured or an otherwise existing and disclosed
report. Instead, Plaintiff is requesting an additional thirty days, which would result in a sum total
extension of over eight months from the expert disclosure deadline initially set by the Court and
an extension of over five months from the amended disclosure deadline. Because the Plaintiff has
not demonstrated that she acted diligently to meet the amended deadline2 and because Plaintiff’s
request would result in an extreme extension of the discovery period, the Court finds that Plaintiff
has not demonstrated good cause for such an extension within the meaning of Rule 16. See

2

Plaintiff mentions in passing that there is a discovery dispute between Progressive and Plaintiff regarding additional
documents Progressive has allegedly not produced in discovery. (DN 35, at PageID # 293.) However, Plaintiff does
not connect this dispute to her own delay in seeing an expert. Further, Plaintiff points out that Progressive made its
initial disclosures well beyond the scheduled deadline. (Id.) However, this amounts to arguing that two wrongs make
a right.

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Bentkowski v. Scene Magazine, 637 F.3d 689, 696-697 (6th Cir. 2011) (upholding district court’s
denial of motion for extension where movant “offered no explanation for his lack of diligence”).
Additionally, the Court notes that Progressive would be prejudiced by granting Plaintiff
another extension. On April 20, 2018, Progressive filed a Motion for Summary Judgment. (DN
24.) Plaintiff filed a Response that both responded substantively to Progressive’s allegations and
requested, in the alternative, that the Court defer a ruling on the issue because of pending discovery
and scheduling disputes. (DN 39.) Progressive filed a Reply in Support on June 27, 2018. (DN
42.) Permitting Plaintiff to disclose an expert would require Progressive to rewrite its Motion to
address Plaintiff’s expert’s opinions. This would prejudice Progressive.
Because Plaintiff has not shown good cause for her requested extension and the extension
would prejudice Progressive, Plaintiff’s Motion will be denied.
ORDER
Accordingly, it is HEREBY ORDERED that Plaintiff’s Motion to Amend Pre-Trial
Schedule (DN 35) is DENIED.

cc: Counsel of record
August 9, 2018

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