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

Filing 330

RULING and ORDER : The 325 Motion To Reopen Discovery Limited To Evidence And Expert Disclosures Of Post-September 30, 2016, Discharge And Contamination is hereby DENIED. Signed by Judge Brian A. Jackson on 7/29/2021. (ELW)

Case 3:13-cv-00129-BAJ-EWD

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CEDAR LODGE PLANTATION, LLC,
ET AL.

CIVIL ACTION

VERSUS
CSHV FAIRWAY VIEW I, LLC, ET
AL.

NO. 13-00129-BAJ-EWD

RULING AND ORDER
Before the Court is Plaintiff Cedar Lodge Plantation, LLC’s (“Cedar Lodge”)
Opposed Motion To Reopen Discovery Limited To Evidence And Expert
Disclosures Of Post-September 30, 2016, Discharge And Contamination
(Doc. 325). In sum, Cedar Lodge seeks an order re-opening fact and expert discovery,
to allow Cedar Lodge to develop additional evidence of post-litigation discharge, and
to retain a new expert witness to replace their current environmental expert, Dr.
Suresh Sharma. (Doc. 325-1 at 11).
Cedar Lodge’s request to replace Dr. Sharma is new; its request to re-open
discovery is not. Indeed, by Order dated January 31, 2020, the Court previously
denied Cedar Lodge’s request to develop additional evidence of post-litigation
discharge, determining that Cedar Lodge had failed to show good cause to re-open
discovery. (Doc. 317). Understandably, Defendants oppose Cedar Lodge’s second bite
at the apple. (Doc. 326). Defendants also oppose Cedar Lodge’s request to replace Dr.
Sharma.
As to its first request—to re-open discovery—Cedar Lodge’s Motion is, in force
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and effect, a motion for relief from a prior Court order denying precisely the same
request. As such, the Court will weigh Cedar Lodge’s renewed request against
Federal Rule of Civil Procedure (“Rule”) 60(b).
Rule 60(b) sets forth five specific grounds for relief from a prior order—none of
which are applicable here—as well as a final catch-all provision affording relief for
“any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Rule 60(b)’s catch-all
provision is reserved for “extraordinary situations” or “exceptional circumstances,”
U.S. ex rel. Garibaldi v. Orleans Par. Sch. Bd., 397 F.3d 334, 337 (5th Cir. 2005), and
does not extend relief to litigants that seek merely to “rehash prior arguments,”
Stewart v. Leonard, 695 F. App'x 800, 801 (5th Cir. 2017) (citing Triple Tee Golf, Inc.
v. Nike, Inc., 485 F.3d 253, 269 (5th Cir. 2007)).
Here, Cedar Lodge does not present extraordinary or exceptional reasons to
support its renewed request to re-open discovery, but instead suggests that the Court
should reconsider its prior ruling because trial has been continued until March 2022,
thereby allowing more time to gather the discover it seeks. (Doc. 325 at 8-9).
Moreover, as noted by Defendants, Cedar Lodge’s renewed request is based on the
same failed arguments that it offered in support of its original motion. (Doc. 325 at 914). In sum, Cedar Lodge has again failed to show that it is entitled to additional time
to gather evidence of post-litigation discharge that it could and should have gathered
within the pre-existing discovery window. Accordingly, Cedar Lodge’s request to reopen discovery will be denied.
Likewise, the Court is not persuaded by Cedar Lodge’s request to replace Dr.

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Sharma. Ostensibly, this request is based solely on Cedar Lodge’s desire to
accommodate Dr. Sharma’s “plans to be in India in the Spring of 2022,” which may
result in him be unavailable to testify at trial. (Doc. 325-1 at 11). As noted by
Defendants, however, Cedar Lodge has long known of Dr. Sharma’s desire to
withdraw from these proceedings. Indeed, the matter was specifically raised to the
Court’s attention at the April 17, 2019 status conference. Yet, despite knowing of Dr.
Sharma’s misgivings, and the likelihood that Dr. Sharma would seek to avoid his
obligation to testify a trial, Cedar Lodge waited more than two years to seek
substitution. Plainly, Cedar Lodge’s current predicament was foreseeable, and
therefore does not justify allowing a substitution at this late date. See Leibel v. NCL
(Bahamas) Ltd., 185 F. Supp. 3d 1354, 1356–57 (S.D. Fla. 2016) (Lenard, J.)
(“[C]ourts have been … consistent in denying motions to substitute an expert witness
when the reason for the substitution was foreseeable and resulted from the parties'
lack of diligence.” (citing authorities)).
Accordingly,
IT IS ORDERED that Cedar Lodge’s Opposed Motion To Reopen
Discovery Limited To Evidence And Expert Disclosures Of Post-September
30, 2016, Discharge And Contamination (Doc. 325) be and is hereby DENIED.
Baton Rouge, Louisiana, this 29th day of July, 2021

_____________________________________
BRIAN A. JACKSON, JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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