Lighthouse Property Insurance Corporation v. BMW of North America, LLC et al
ORDER AND REASONS: ORDERED that denying 98 Motion to Amend Scheduling Order's Deadlines is DENIED and 112 Motion for Status Conference is DENIED as Moot. FURTHER ORDERED that 109 Motion for Leave to File Supplemental Opposition to Mo tion to Disqualify Frank Miller and Motion for Summary Judgment; 110 Motion for Leave to File Supplemental Opposition to Motion to Disqualify Mark Bordelon; 114 Motion for Leave to File Reply Memorandum in Support of Motion for Summary Judgment are GRANTED. Signed by Judge Martin L.C. Feldman. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LIGHTHOUSE PROPERTY INSURANCE CORPORATION,
AS LEGAL AND CONVENTIONAL SUBROGEE OF
TYRONNE SCOTT AND LUCRETIA SCOTT
BMW OF NORTH AMERICA, LLC
ORDER AND REASONS
Before the Court are several motions:
(1) BMW North America,
LLC’s objection to scheduling order and motion to amend; (2) BMW
of North America, LLC’s ex parte motion for a status conference;
opposition to motion to disqualify Frank Miller and motion for
summary judgment; (4) the plaintiff’s motion for leave to file
supplemental opposition to motion to disqualify Mark Bordelon; and
(5) the plaintiff’s motion for leave to file reply memorandum in
support of motion for summary judgment.
For the reasons that
follow, BMW North America, LLC’s motions are DENIED, and the
plaintiff’s motions are GRANTED.
This product liability litigation arises out of damage to a
residence caused by a fire that the homeowners allege originated
in the engine of their BMW, which was parked inside the homeowners’
subrogation claim against BMW North America, LLC for the damages
Lighthouse paid as a result of the fire.
BMW NA denies that its
vehicle contained any defect that caused a fire.
Each party disputes the admissibility of the
other side’s expert and each has moved for summary judgment.
The Court’s initial scheduling order, issued on October 6,
2016, selected an August 10, 2017 pretrial conference date and an
August 28, 2017 jury trial date.
The scheduling order required
that all pretrial motions and motions in limine regarding the
admissibility of expert testimony shall be filed in sufficient
time to permit hearing no later than 28 days prior to trial.
Although BMW NA’s motion to disqualify and exclude the testimony
of Frank Miller, Jr. and motion for summary judgment (Rec.Doc. 47)
was filed in compliance with the initial scheduling order (that
is, filed in time to be heard within 28 days prior to trial), the
parties moved for and on July 12, 2017 were granted an extension
discovery and depositions, as well as the deadline for filing
pretrial motions. Based on the extensions granted, the plaintiff’s
motion in limine to exclude BMW NA’s expert testimony and related
report (Rec.Doc. 74) and its motion for summary judgment (Rec.Doc.
76) as well as BMW NA’s motion to disqualify and exclude the
testimony of Mark Bordelon (Rec.Doc. 79), were filed on July 25
and set for hearing on August 9, 2017.
So that the dispositive
motions and motions challenging admissibility of experts could be
heard together on August 9, the Court continued the hearing on BMW
NA’s motion for summary judgment and motion to disqualify/exclude
That the other pretrial and trial dates remained
undisturbed meant that the pretrial motions were set for hearing
less than three weeks before the August 28 trial date and just one
day before the pretrial conference was scheduled to take place.
On August 4, 2017, acknowledging the cramped schedule caused by
the necessity in moving the pretrial deadlines to accommodate the
parties, 1 the Court continued the trial schedule as well as the
hearing on the pending motions.
Of course, the Court could have denied the parties’ joint request
for an extension, but that would have been unreasonable and
contrary to justice.
On August 18, 2017, the Court issued a new scheduling order,
which selected a February 8, 2018 pretrial conference date and a
March 5, 2018 jury trial date as well as new deadlines anchored to
the new trial schedule.
BMW NA now objects to and moves to amend
conference to discuss the deadlines that govern this case.
BMW NA’s motion to amend the new scheduling order, its request
for a status conference, and its opposition to the plaintiff’s
motions to supplement its previously-filed motions are all based
on its objection to the fact that the new scheduling order resets
deadlines that had expired at the time the trial was continued.
deadlines in the new scheduling order are upheld.
counters that this Court’s scheduling order explicitly provides
that “deadlines and cut off dates will be extended automatically,
unless otherwise ordered by the Court” if a continuance is granted.
Lighthouse also submits that extending all deadlines, and not only
the pretrial and trial dates, serve the interests of justice.
It is this Court’s policy to automatically extend deadlines
and cutoff dates if the Court continues the trial schedule.
a new scheduling order has issued, no deadline or scheduled date
will be disrupted absent good cause.
No good cause has been shown
to disrupt the dates and deadlines selected by the Court’s August
18, 2017 scheduling order.
The parties’ request to extend the
deadlines of the prior scheduling order was granted because good
cause was shown:
despite the parties’ diligence, discovery had
not yet been completed and the parties needed additional time to
prepare pretrial motions based on ongoing discovery.
parties’ prior request for an extension fell short of requesting
a continuance of the pretrial conference and trial date, granting
the parties more time indisputably failed to permit sufficient
time for the Court to consider and resolve the parties’ motions in
advance of trial.
In seeking relief from the new scheduling order, BMW NA
underscores that the Court on its own continued the trial schedule,
but fails to acknowledge that the parties’ inability to comply
reaction; that is, the reason underlying the parties’ joint motion
to extend only the pretrial deadlines -- to allow all parties
additional time to complete discovery and to prepare their pretrial
motions -- resulted in insufficient time for the Court to consider
and resolve dispositive motions and the underlying motions in
limine or to disqualify experts upon which the dispositive motions
Deadlines imposed by a scheduling order are anchored
to the trial date for good reason. 2
BMW NA fails to persuade the
Court to resurrect its prior scheduling order.
BMW NA’s frustration regarding the time and expense it has
expended in litigating this case over the past year is noted, but
its contention that Lighthouse will now have a second bite at the
apple causing BMW NA to duplicate its efforts and prepare its
defense to the same claims again rings hollow. 3 Although the Court
resources and additional disputes will arise, the Court is not
Ultimately, if the merits are reached, this case will be resolved
Indeed, the Court observes that Lighthouse argued in its
opposition to BMW NA’s motion for summary judgment that BMW NA’s
motion was premature because BMW NA had not identified a corporate
representative that it could depose. It is worth noting that, in
motion practice presently pending before Magistrate Judge Roby,
Lighthouse now seeks sanctions on the ground that BMW failed to
produce a knowledge witness and certain requested records in
violation of the Court’s order and in violation of the Federal
Rules. On October 11, 2017, Magistrate Judge Roby ordered that
BMW NA reproduce its designated representative to testify on
certain targeted topics.
3 The Court will not tolerate duplicative filings or other vexatious
If counsel in good faith believes that
opposing counsel is engaging in such tactics, counsel would be
best served to seek relief pursuant to 28 U.S.C. § 1927.
by the fact finder being persuaded as to whether it is more likely
than not that the BMW parked inside the garage was the source of
the fire that damaged the house.
That the parties have engaged
experts who differ on this critical point is simply a function of
scheduling order are not intended to be arbitrary cut-offs divorced
from the reality of the time it takes to accomplish the tasks it
BMW NA submits that “[a]n entire year of litigation will
essentially be erased” if the Court fails to resurrect the prior
scheduling order. The Court declines to indulge hyperbole divorced
from litigation realities.
This one and only continuance in the
life of this case is neither unreasonable nor unduly prejudicial. 4
Accordingly, for the foregoing reasons, IT IS ORDERED: that
BMW NA’s objection or motion to amend scheduling order is DENIED
and its motion for a status conference is DENIED as moot.
FURTHER ORDERED: that Lighthouse’s motions for leave to file
supplemental opposition to motion to disqualify Frank Miller and
opposition to motion to disqualify Mark Bordelon; and for leave to
No future requests for a continuance will be entertained.
file reply memorandum in support of motion for summary judgment
are GRANTED. 5
New Orleans, Louisiana, October 11, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
In granting the plaintiff’s motions for leave, the Court simply
permits the supplemental papers to be filed. Allowing supplemental
papers to be filed into the record should not be construed as a
rejection of BMW NA’s arguments advanced in opposition to the
motions for leave.
Nor should the ruling be construed as an
advisory opinion that the materials submitted therewith are
admissible. BMW NA’s varied arguments advanced in opposition to
the plaintiff’s requests for leave to file supplemental papers
(that the proposed addenda attached to Lighthouse’s supplemental
papers are untimely or inadmissible or repetitive or impermissible
attempts to incorporate testimony and inadmissible evidence into
expert reports) may be focused by way of proper motion or
supplemental papers by BMW NA.
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