Clifton et al v. Progressive

Filing 26

ORDER granting in part and denying in part 23 Consent MOTION for Extension of Discovery Deadlines. The previous discovery deadlines set forth in the 9/29/2015 10 Scheduling Order are amended as follows: Discovery due by 5/22/2015. Plaintiff& #096;s Expert Witness List due by 6/19/2015. Defendant`s Expert Witness List due by 7/2/2015. Plaintiff`s Expert Reports due by 6/19/2015. Defendant`s Expert Reports due by 7/2/2015. Discovery from Experts due by 7/17/2015. Motions shall be filed by 7/31/2015. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 3/26/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ROBERT C. CLIFTON, ET AL

CIVIL ACTION

VERSUS

NO. 14-395-SDD-RLB

PROGRESSIVE PALOVERDE
INSURANCE COMPANY
ORDER
Before the court is Defendant’s Consent Motion to Extend Scheduling Order Deadlines.
(R. Doc. 23). The motion states that Defendant has contacted Plaintiffs’ counsel who consents to
the extension of these deadlines. Defendant seeks an extension of 90 days of all deadlines in the
Court’s Scheduling Order. (R. Doc. 10).
The Scheduling Order in this case was issued on September 29, 2014. (R. Doc. 10). The
deadlines in the Scheduling Order were based on those specifically requested by the parties in
the Status Report. (R. Doc. 9). The remaining pretrial and trial dates were set based on those
proposed deadlines.
This is the second request for a 90 day extension of the aforementioned deadlines. The
previous request was filed on March 16, 2015 and it was denied on March 19, 2015 due to an
insufficient showing of good cause to support the requested relief. (R. Doc. 22).
The current motion was filed on March 24, 2015. As with the prior request, the
Scheduling Order was issued over five months ago. Based on the deadlines in place, the parties
have completed the exchange of initial disclosures. The deadline for filing all discovery motions
and completing all discovery except experts is tomorrow, March 27, 2015. The deadlines for
identifying and exchanging expert reports are April 24, 2015 for Plaintiffs and May 8, 2015 for

Defendant. The deadline to complete discovery from experts is May 22, 2015. Dispositive and
Daubert motions are due on June 5, 2015, over two months from now.
Rule 16(b)(4) of the Federal Rules of Civil Procedure allows for the modification of a
scheduling order deadline upon a showing of good cause and with the judge’s consent. The Fifth
Circuit has explained that a party is required “to show that the deadlines cannot reasonably be
met despite the diligence of the party needing the extension.” Marathon Fin. Ins. Inc., RRG v.
Ford Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (quoting S&W Enters., LLC v. Southtrust
Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003)). The Scheduling Order informed the
parties that “[j]oint, agreed or unopposed motions to extend scheduling order deadlines will not
be granted automatically” and that “[e]xtensions of deadlines governing discovery must be
supported with information describing the discovery already completed, what necessary
discovery remains, the parties’ efforts to complete the remaining discovery by the deadline, and
any additional information showing that the parties have diligently pursued their discovery.” (R.
Doc. 10).
In the previously denied motion, Defendant stated that, to date, “neither party has
conducted any depositions in this matter. Because both parties intend to take depositions in this
matter in order to fully support or defend the claims asserted, an extension of these deadlines
would further the interests of justice. Additionally, any depositions are necessary prior to either
party being able to file any dispositive motions.” (R. Doc. 21 at 1). No other information was
provided.
The instant motion provides a more complete explanation as to why the parties had not
timely conducted the depositions within the deadlines they requested. Specifically, on January
30, 2015, the Defendant filed a Motion for Partial Summary Judgment seeking to dismiss
Plaintiff’s bad faith claims. (R. Doc. 14). The Defendant represents that resolution of that
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motion would “simplify the issues of this case, eliminate a great deal of discovery, and as a
result, reduce the amount of costs and fees both parties would incur throughout this litigation.”
(R. Doc. 23 at 2). Because this motion is pending, “the parties have not aggressively pursued
discovery.” (Id.). The motion specifically refers to written discovery directed to Plaintiffs’ “bad
faith” claims as well as depositions of Progressive’s adjusters. (Id.).
At no point during the removal of this action, the preparation of the Status Report, the
issuance of the Scheduling Order, or the filing of the Motion for Partial Summary Judgment,
have the parties requested any stay of discovery or expressed any intention to disregard existing
deadlines while a motion was pending. Indeed, the Status Report, filed in September of 2014,
specifically indicated that the plaintiffs intend to conduct written discovery regarding the process
by which the claim decision was made as well as “intend on deposing the claims representatives
that worked on the plaintiffs’ claims.” (R. Doc. 9 at 6-7). Furthermore, any presumed decision
to forego this discovery while the Motion for Partial Summary Judgment was under advisement
is directly contradicted by plaintiff’s representations to the district judge in their Opposition to
that motion filed on February 20, 2015. (R. Doc. 18 at 6-7) (“Currently, plaintiffs are in the
process of setting depositions of the claims representatives involved in the claims process.”).
The Court is aware, however, that both parties have expressed a need for the discovery at
issue and, despite some disagreement regarding that discovery, have apparently endeavored to
resolve any disagreement without seeking court intervention. The Court also notes that this is
the only extension that has been requested.
As set forth above, in support of good cause, the Motion points to the pendency of the
Motion for Partial Summary Judgment as the basis for not conducting further discovery. That
Motion has been pending for eight weeks. The Court will, in order to put the parties in the same

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position they were in prior to that motion being filed, provide an extension of all deadlines for
that same period of time. 1 Therefore,
IT IS ORDERED that the Consent Motion to Extend Scheduling Order Deadlines (R.
Doc. 23) is GRANTED IN PART AND DENIED IN PART. The previous discovery
deadlines set forth in the September 29, 2014 Scheduling Order (Doc. 10) are amended as
follows:
1. Discovery must be completed as follows:
a. Filing all discovery motions and completing all discovery except experts: May
22, 2015.
b. Disclosure of identities and resumés of experts:
Plaintiff(s):

June 19, 2015.

Defendant(s):

July 2, 2015.

c. Expert reports must be submitted to opposing parties as follows:
Plaintiff(s):

June 19, 2015.

Defendant(s):

July 2, 2015.

d. Discovery from experts must be completed by July 17, 2015.
2. Deadline to file dispositive motions and Daubert motions: July 31, 2015.
Signed in Baton Rouge, Louisiana, on March 26, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

1

The parties are reminded that while Rule 29 of the Federal Rules of Civil Procedure allows for
parties to enter into stipulations or agreements governing discovery, court approval is required if
any such agreements would interfere “with the time set for completing discovery.”
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