Morris v. Zurich American Insurance Company et al
MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell granting 18 Motion for Extension of Time to Complete Discovery and dismissing as moot 20 Motion for Protective Order. Plaintiff's Fact Discovery due by 10/15/2017. Defendant t o respond to discovery requests that were subject of their motion for protective order. Expert Witness (Plaintiff) due by 10/31/2017. Expert Witness (Defendant) due by 12/15/2017. All discovery due by 1/15/2018. cc: Counsel, plaintiff pro se (JAC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 5:16-CV-129-TBR
ZURICH AMERICAN INSURANCE CO., et al.,
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon two motions. First, Plaintiff Melissa Morris
(“Plaintiff”) has filed a Motion for Extension of Time to Complete Discovery. [DN 18.]
Defendants Zurich American Insurance Company and Zurich American Insurance Company of
Illinois (“Defendants”) have responded, [DN 19], and the time has passed for a reply. Second,
Defendants have filed a Motion for a Protective Order. [DN 20.] For the following reasons,
Plaintiff’s Motion [DN 18] is GRANTED, and Defendants’ Motion [DN 20] is DISMISSED
Plaintiff was involved in an automobile accident on September 18, 2008 in Jefferson
County, Kentucky. [DN 1-2, at 1-2.] The truck which collided with Plaintiff’s vehicle was
insured by Defendants. [DN 1-3, at 2.] Plaintiff filed suit in state court to recover for her injuries,
and a settlement was eventually reached. [DN 1-2, at 3.] Plaintiff filed the instant case in
Christian County Circuit Court on July 11, 2016, and has asserted common law bad faith claims
and claims arising under Kentucky’s Unfair Claims Settlement Practices Act, KRS 304.12-230
et. seq. See [DN 1-1, 1-2.] The case was removed to this Court, whereupon Plaintiff moved to
have the case remanded, a motion which was denied. [DN 12.] Plaintiff appealed that decision
and was denied. [DN 14.]
This Court issued a scheduling order in February 2017, laying out a structured path for
this case, including, among other things, the following: an August 31, 2017 deadline for all fact
discovery, an October 1, 2017 deadline for Plaintiff to identify her expert or experts, and a
December 31, 2017 deadline for the completion of all discovery. [DN 16.] Plaintiff now asks the
Court to extend the deadline for fact discovery to October 15, 2017 and her expert-identification
deadline to October 31, 2017. [DN 18.]
Federal Rule of Civil Procedure 6(b)(1)(B) provides that “the court may, for good cause,
extend the time [for discovery issues] on motion made after the time has expired if the party
failed to act because of excusable neglect.” The question of what constitutes “excusable neglect”
is a matter within the trial court’s discretion. See Turner v. City of Taylor, 412 F.3d 629, 649 (6th
Cir. 2005) (“A district court’s determination with respect to excusable neglect is subject to
review under an ‘abuse of discretion’ standard.”). Five factors must be balanced in reaching a
determination of whether something constitutes “excusable neglect.” These five factors are: “(1)
the danger of prejudice to the nonmoving party, (2) the length of 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).
The first factor, “the danger of prejudice to the nonmoving party,” id., favors Plaintiff in
this case. Defendants’ primary contention in support of their argument that they would be
prejudiced by this extension of time is with regards to the scheduling order as it currently stands.
[DN 19, at 8.] Specifically, Defendants point to the fact that, if the Court was to move the two
deadlines as Plaintiff has asked, it could render the entire scheduling order unworkable. That is
not the case. First, while moving Plaintiff’s expert-identification deadline from October 1 to
October 30 means that the Court will also need to move Defendants’ deadline from November
15 to December 15, this will not require a complete reworking of the schedule. The deadline for
the completion of all discovery will simply be moved from December 31, 2017 to January 15,
2018 in order to alleviate any concerns Defendants have with being able to complete discovery
under the new deadlines, and the February 1, 2018 deadline for dispositive motions will remain
untouched, as will the May 7, 2018 trial date. These changes are minimal and the Court is
satisfied that they will not bear greatly upon the case’s current trajectory.
Second, the length of the delay is quite short. Plaintiff has asked the court for a six-week
extension on fact discovery and a four-week extension on expert identification. As noted above,
this extension will have little, if any, effect on present and future judicial proceedings, as the
dispositive motions deadline and the trial date will remain as they were. Defendants argue that,
“[a]s with any unwanted delay in litigation, [Plaintiff’s] requests extension will certainly
prejudice the defendants by delaying the resolution of this case.” [DN 19, at 5.] However,
Defendants go on to say, “[w]ill the prejudice be great? Maybe or maybe not.” [Id.] Defendants
then refer the Court to their argument regarding the potential reworking of the case’s schedule.
However, the small amount of reworking the Court will need to do in the instant case leads to the
Court to the conclusion that, while there is the potential for some prejudice from a delay, such a
short one at this stage in the litigation will not be great. Moreover, Plaintiff set the self-imposed
deadline of October 15, 2017 for fact discovery approximately four weeks ago, a date which now
looms in less than a week. Thus, the actual restructuring will be minimal, and the change in the
expert-identification deadline now rests less than one month away.
Next, Plaintiff presents a compelling argument as to the third factor regarding why she
was unable to complete discovery in a timely manner. She explains in her motion that she “was
delayed in submitting the document requests to Defendants due to an immediate family member
who has been dealing with medical issues for the last several months.” [DN 18, at 2.] Defendants
argue that, because Plaintiff waited until the midnight hour to email written discovery requests to
Defendants, any argument she has regarding a sick family member should not prevail. [DN 19, at
5-6.] While it is certainly relevant that Plaintiff waited so long to email these discovery requests,
“excusable neglect” is an “elastic concept,” and “the determination whether neglect is excusable
‘is at bottom an equitable one, taking account of all relevant circumstances surrounding the
moving party’s omission.’” Morgan v. Gandalf, Ltd., 165 F. App’x 425, 429 (6th Cir. 2006)
(quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395
(1993)). Therefore, “depending on the equities, mere inadvertence may warrant an enlargement
of time under Rule 6(b). Id.
Thus, while Defendants argue forcefully that the medical issues with which Plaintiff’s
family member was dealing do not, in and of themselves, account completely for the late nature
of Plaintiff’s written discovery requests, the inquiry is not as rigid as that. To be sure, Plaintiff
could have been more diligent, but the excusable-neglect inquiry presupposes some sort of
neglect on the part of the movant; the question is whether it is excusable. The Court finds that it
is. Certainly, this delay was within the reasonable control of Plaintiff, though, which goes to the
fourth factor. She took months to serve written discovery requests and only did so on the eve of
the deadline. Although this fourth factor does weigh against her, the reason for it presents a more
compelling case to the Court.
Lastly, Defendants argue that Plaintiff did not act in good faith in failing to meet the
deadline set by the Court, but Defendants’ argument undercuts that line of reasoning.
Specifically, Defendants again allege that the tardiness of Plaintiff’s written discovery requests,
followed by this motion, indicate that she did not act in good faith, and that this factor weighs in
their favor. However, Defendants state that, after emailing the written discovery requests in an
untimely manner, “she apparently realized that her requests were untimely and that the
defendants weren’t required to respond to them. That prompted her to file her motion for time.”
[DN 19, at 5-6.] Thus, by Defendants’ very argument, Plaintiff likely did not realize the untimely
nature of her requests until she received no reply from Defendants. Her lack of punctuality
cannot, in and of itself, be equated with bad faith, i.e., intentionally trying to mislead the Court or
opposing counsel. Defendants have not produced or alleged any other manner of bad faith on the
part of Plaintiff.
The Court finds that four of the five factors outlined above favor granting Plaintiff’s
motion. Defendants only speculate as to prejudice that might befall them if the scheduling order
is rendered unworkable. The length of the delay is short, and does not affect the dispositive
motions deadline or the trial date. Plaintiff’s rationale for the delay, the long-term medical issues
of an immediate family member, is a strong one, and there is no concrete evidence of bad faith.
While the delay was certainly within Plaintiff’s reasonable control, (the fourth factor), it alone
does not tip the scales in favor of Defendants.
Finally, because the Court has granted Plaintiff’s Motion for Extension of Time,
Defendants’ pending Motion for a Protective Order asking the Court that they not be required to
respond to Plaintiff’s untimely discovery requests is necessarily dismissed as moot. While
Plaintiff’s requests were previously untimely under the original scheduling order, the amended
schedule renders them timely, necessitating responses from Defendants.
For the reasons stated herein, IT IS HEREBY ORDERED that Plaintiff’s Motion for
Extension of Time to Complete Discovery [DN 18] is GRANTED. Defendants’ Motion for a
Protective Order [DN 20] is DISMISSED AS MOOT. IT IS FURTHER ORDERED THAT:
1) Plaintiff SHALL complete all fact discovery by October 15, 2017.
2) Defendants SHALL respond to the aforementioned discovery requests that were the subject of
their motion for a protective order.
3) Plaintiff SHALL identify her expert or experts by October 31, 2017.
4) Defendants SHALL identify their expert or experts by December 15, 2017.
5) The parties SHALL complete all discovery by January 15, 2018.
IT IS SO ORDERED
Melissa Morris, pro se
Counsel of Record
October 11, 2017
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