Cedar Lodge Plantation, LLC et al v. CSHV Fairway View I, LLC et al

Filing 317

ORDER denying 293 Motion to Reopen Discovery for the Limited Purpose of Including Evidence of Post-January 29, 2013 Discharges. Signed by Judge Brian A. Jackson on 1/31/2020. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CEDAR LODGE PLANTATION

CIVIL ACTION

LLC,ETAL.

VERSUS
CSHV FAIRWAY VIEW I, LLC

NO: 13-00129-BAJ-EWD

ET, AL.

ORDER
Before the Court is Plaintiffs Motion to Reopen Discovery for the Limited
Purpose of Including Evidence of Post-January 29, 2013 Discharges (Doc.
293). Defendants filed an opposition. (Doc. 296). Plaintiff requests the Court to permit
the submission of evidence of post-Januaiy 29, 2013 sewer discharges and expert
opinion and testimony related to that evidence.

Plaintiff asserts that good cause exists as required by Federal Rules of Civil
Procedure 16. Plaintiff claims that the inclusion of more recent discharges is
important because it' supports Plaintiffs allegations of ongoing discharge by
Defendant. Plaintiff claims that if discovery is not reopened, Plaintiff "will be forever
barred from having an expert opine on more recent evidence." (Doc. 293 at p. 3).

Plaintiff further claims that there is little to no prejudice to Defendants other than
the passage of time as Plaintiff notes that gathering the evidence will take eight to
twelve weeks. Defendants argue that Plaintiff seeks unnecessary discovery that

would prejudice Defendants by increasing the costs of litigation and jeopardizing the
trial date. Defendants contend that Plaintiff has not shown good cause, and Plaintiff

1

has already had the opportunity to conduct discovery concerning the alleged post"
January 29, 2013 discharges as they conducted much of it after the December 31,
2015 discovery deadline.1 Defendants further contend that Plaintiffs expert, Suresh
Sharma, even addressed samples that he collected in March 2015 in his expert report.

(Doc. 296 at p. 3).
Fed. R. Civ. P. 16 provides that a schedule may be modified only for good cause
and with the judge s consent. The United States Court of Appeals for the Fifth Circuit
has explained that the good cause standard requires the 'party seeking relief to show
that the deadlines cannot reasonably be met despite the diligence of the party needing
the extension/" S&W Enterprises, L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d

533,535 (5th Cir. 2003) (quoting Federal Practice and Procedure § 1522.1 (2d ed.
1990)). In the context of an untimely motion to submit export reports, designate
experts, or amend pleadings, the Fifth Circuit applies a four-factor balancing test to
determine whether good cause exists: (1) the explanation for the failure to adhere to
the deadline at issue; (2) the importance of the proposed modification to the
scheduling order; (3) potential prejudice; and (4) the availability of a continuance to
cure such prejudice. See Reliance Ins. Co. u. La. Land & Exploration Co., 110 F.3d

253, 257 (5th Cir. 1997) (submit expert reports); Geiserman v. MacDonald, 893 F.2d
787, 790 (5th Cir. 1990) (designate expert witnesses); S&W enterprises, LLC, 315 F.3d
at 536 (amend the pleadings).

1 In their opposition, Defendants assert that the parties agreed to permit additional discovery after
the December 31, 2015 deadline. Defendants further assert that Plaintiffs conducted all of its discovery
after January 29, 2013 and focused much of its discovery on events that allegedly occurred after the
filing of the suit. (Doc. 296 at p. 3).

2

Although the Fifth Circuit has not yet applied this test to a motion to re-open
discovery, this Court and one other court within this Circuit has applied this fourfactor test to a motion to re-open discovery. See Tingle v. Hebert, No. CV 15-626-JWD-

EWD, 2018 WL 1726667 (M.D. La. Apr. 10, 2018); Hernandez v. Mario's AiUo Sales,
Inc., 617 F.Supp. 2d 488,493 (S.D. Tex. 2009). In Tingle v. Hebert, the Court denied a
motion to reopen discovery for limited purposes because defendants offered no

explanation for the failure to file a motion to amend the scheduling order, the
additional discovery requested was not important to the case, and any continuance

would not cure the prejudice caused by the increased costs of litigation that will result
from permitting additional discovery. Id. at 10.
The record reflects that multiple extensions related to discovery have been
issued in this matter. The initial fact discovery deadline was November 30, 2015, and
the expert discovery deadline was March 31, 2016. The Court found good cause to
extend the deadline to December 31, 2015 (Doc. 73), and in February 2016, the
Magistrate Judge issued an Order granting Plaintiffs motion to extend expert
discovery deadlines to May 31, 2016. (Doc. 86). On May 13, 2016, Plaintiff filed a
motion to extend expert discovery deadlines (Doc. 113), which the Court granted (Doc.
118) and reset the deadline to June 16, 2016. On August 24, 2016, Defendants filed a
motion to extend the deadline to depose new witnesses (Doc. 166), which the Court
also granted and reset the deadline to September 30, 2016. (Doc. 170). In addition to
the extension of discovery deadlines, Plaintiff has twice requested continuance of the
trial date (See Docs. 240, 299).

3

The Court finds that Plaintiff has failed to establish good cause to again justify
the reopening or extension of discovery. Plaintiff framed its argument for good cause
on a of six factor test from a District of Columba case2, rather than the four factors

required to be considered by the Fifth Circuit. The Court finds that Plaintiff has failed
to offer a satisfactory explanation for the failure to adhere to the deadline at issue.
Plaintiff was provided ample opportunities to gather and submit post January 29,
2013 evidence by the discovery deadline and has failed to provide a compelling reason
as to why the Court should provide another deadline. The Court also finds that
Plaintiff has already conducted much discovery regarding the ongoing sewer
discharges after the January 29, 2013 date. Given these circumstances, Plaintiffs
allegations of ongoing discharge should be satisfactorily supported by its evidence.
Thus, the addition of more recent evidence of ongoing discharge is not so important
that it warrants further delay of the trial. The Court also finds that the potential
prejudice of Plaintiff being precluded from having an expert testify to the more recent
evidence of discharge does not outweigh the prejudice that will be caused by increased
costs of litigation from permitting additional discovery. Finally, the Court finds that
a continuance would not cure the prejudice but instead would exacerbate the alleged
harm. Accordingly,

2 In re Rail Freight Fuel Surcharge Antitrust Litig., 281 F.R.D. 12, 14 (D.D.C. 2011).

4

IT IS ORDERED that Plaintiffs Motion is DENIED.

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Baton Rouge, Louisiana, this I day of January, 2020

-a.
JUDGE BRIAN^L^KSON

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA