In Re: In the Matter of Tara Crosby LLC

Filing 271

ORDER: IT IS ORDERED that Crosby's motion to modify scheduling order 270 is GRANTED and that Crosby is permitted to conduct the limited discovery it requests in its motion and accompanying memorandum in support, as stated herein. Signed by Judge Barry W Ashe on 04/19/2022. (am)

Case 2:17-cv-05391-BWA-KWR Document 271 Filed 04/19/22 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION

IN THE MATTER OF TARA
CROSBY, LLC AND CROSBY TUGS,
LLC, AS OWNERS AND OWNERS
PRO HAC VICE OF M/V CROSBY
COMMANDER AND HER CARGO,
ENGINES, TACKLE, GEAR,
APPURTENANCES, ETC. IN REM
PETITIONING FOR EXONERATION
FROM AND/OR LIMITATION OF
LIABILITY

NO. 17-5391
SECTION M (4)

ORDER
Before the Court is a motion to modify scheduling order to permit updated discovery
depositions of plaintiffs and physicians, filed by petitioners Tara Crosby, LLC and Crosby Tugs,
LLC (together, “Crosby”). 1 The motion was set for submission on April 21, 2022. 2 In its motion,
Crosby represents that claimants Robert Pitre and Joseph Herbert (together, “Claimants”) oppose
the relief sought. 3 Local Rule 7.5 of the United States District Court for the Eastern District of
Louisiana requires that a memorandum in opposition to a motion be filed no later than eight days
before the noticed submission date, which, in this instance, was April 13, 2022. Claimants did not
file an opposition. Having considered Crosby’s submission, the record, and the applicable law,
the Court grants the motion to allow limited discovery.
In its motion, Crosby argues that “a modification of the existing Scheduling Order is
warranted and necessary to allow [it] to conduct limited discovery directed toward the issues of
damages, medical care, need and expenses in advance of the July 25, 2022, trial of this matter.”4

R. Doc. 270.
R. Doc. 270-2.
3
R. Doc. 270 at 2.
4
Id. at 1.
1
2

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Accordingly, Crosby requests that it be allowed to propound written discovery and take
depositions of Claimants and their treating physicians on certain, limited issues relating to
Claimants’ current conditions and activities. 5 This limited discovery is “necessary to resolve
issues related to maintenance and cure, damages, disability, [and] intervening accidents,” says
Crosby, and could not have been asked in prior depositions.6
Under Rule 16(b)(4) of the Federal Rules of Civil Procedure, a scheduling order “may be
modified only for good cause and with the judge’s consent.” Good cause “requires a showing that
the relevant scheduling order deadline cannot reasonably be met despite the diligence of the party
needing the extension.” Garza v. Webb Cnty., 296 F.R.D. 511, 513 (S.D. Tex. 2014) (citing S&W
Enters., L.L.C. v. Southtrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003)). Furthermore,
the Federal Rules of Civil Procedure require leave of court for a party to take a deposition of a
deponent who has already been deposed in a case, unless the parties have stipulated otherwise.
Fed. R. Civ. P. 30(a)(2)(A)(ii). A court may limit discovery, including the number of depositions
taken, if it is: (1) unreasonably cumulative or duplicative or can be obtained from some other
source that is more convenient, less burdensome, or less expensive; (2) the person seeking the
discovery has had ample opportunity to obtain the same information by discovery in the action; or
(3) the burden or expense of taking the discovery outweighs its likely benefit. Kansas City S. Ry.
Co. v. Nichols Constr. Co., LLC, 2008 WL 11351311, at *2 (E.D. La. Oct. 2, 2008) (citing Fed. R.
Civ. P. 26(b)(2)(C)). Some courts have determined that a “good cause” standard also applies when
determining whether to reopen or retake a deposition. See Kleppinger v. Tex. Dep’t of Transp.,
R. Docs. 270 at 1-2; 270-1 at 1. Specifically, Crosby seeks to propound written discovery and take
depositions of (1) Claimants “to determine their current condition and facts which might pertain to the nature of
ongoing treatment (if any), existence of physical restrictions (if any), employment and any related matters,” and
medical expenses; (2) Claimants’ treating physicians to determine “the Claimants’ current activities, current
physical/mental condition, any future surgeries, any employment or physical restrictions, any intervening
accidents/injuries, and the extent, if any, of paid and unpaid medical treatment.” R. Doc. 270 at 1-2.
6
R. Doc. 270-1 at 1.
5

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283 F.R.D. 330, 335 n.7 (S.D. Tex. 2012) (collecting cases). “The Trial Court has, and must have,
of course, a wide and flexible discretion in the daily guidance of a case through the preparatory
stages looking toward the climax of a trial.” Mitchell v. Johnson, 274 F.2d 394, 401 (5th Cir.
1960).
The Court finds that good cause exists to modify the scheduling order to permit the limited
discovery and depositions Crosby requests.

Crosby has attempted to obtain certain of the

information sought by proposed depositions and written discovery, including, inter alia, “accurate
and reliable evidence of medical bills,” from other, more convenient sources, but without success. 7
Such discovery is permissible, given that Claimants continue to receive ongoing medical
treatment. 8 Because Crosby’s proposed depositions and written discovery will be confined to
issues that could not have been covered previously, the Court finds that the proposed discovery
will not be unreasonably cumulative or duplicative. In addition, the Court finds that the burden of
the updated discovery does not outweigh its likely benefit. Accordingly,
IT IS ORDERED that Crosby’s motion to modify scheduling order (R. Doc. 270) is
GRANTED and that Crosby is permitted to conduct the limited discovery it requests in its motion
and accompanying memorandum in support.
New Orleans, Louisiana, this 19th day of April, 2022.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

7
8

R. Docs. 270 at 2; 270-1 at 5.
R. Doc. 270-1 at 3-4.

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