Alston v. Everest National Insurance Company et al
Filing
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ORDER granting in part and denying in part 8 Motion to Compel. The court DENIES AS MOOT Defendants Motion to Compel Plaintiffs responses to Interrogatories and Requests for Production.The court DENIES Defendants request for reasonable attorneys fe es and costs. GRANTING 8 Motion to Extend Discovery Deadlines: Defendant`s Expert Witness List due by 12/2/2016. Defendant`s Expert Reports due by 12/19/2016. Discovery from Experts due by 2/17/2017. Motions shall be filed by 4/17/2017. Signed by Magistrate Judge Erin Wilder-Doomes on 11/23/2016. (ELW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHERRY ALSTON
CIVIL ACTION
VERSUS
NO. 16-283-JWD-EWD
EVEREST NATIONAL INSURANCE
COMPANY, WILLIAM MORRIS, AND
WILLARD EQUIPMENT
RULING AND ORDER ON MOTION TO COMPEL
Before the court is a Motion to Compel Plaintiff to Provide Overdue Discovery and a Date
for Her Deposition and for Extension of Expert and Discovery Deadlines (the “Motion to
Compel”)1 filed by defendants, Everest National Insurance Company, Willard Equipment
Company, and William Morris (collectively, “Defendants”). The Motion to Compel was filed on
October 11, 2016, and a supplemental memorandum in support of the Motion to Compel was filed
on October 27, 2016.2 Plaintiff, Sherry Alston (“Plaintiff”), has not filed an opposition.3
By their Motion to Compel, Defendants move this court to: (1) issue an order compelling
Plaintiff to respond to Defendants’ Interrogatories and Requests for Production and provide dates
for her deposition; (2) extend the current deadlines for expert disclosure and reports and the
discovery deadline; and (3) award Defendants their costs and attorneys’ fees incurred in attempting
to obtain Plaintiff’s discovery responses and deposition availability, including the costs of
preparing and filing the Motion to Compel.
On November 21, 2016, Defendants filed a Second Supplemental Memorandum in Support
of Motion to Compel Overdue Discovery and Extension of Expert and Discovery Deadlines (the
1
R. Doc. 8.
2
R. Docs. 8 & 11.
3
Any opposition to the Motion to Compel was required to be filed within 21 days after service of the motion. Local
Rule 7.1. The court therefore considers the Motion to Compel to be unopposed.
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“Second Supplemental Memorandum”).4 Therein, Defendants state that they have “received the
plaintiff’s answers and responses to their Interrogatories and Request for Production of
Documents” and therefore the “aspect of the Motion to Compel regarding the defendants’ need for
the plaintiff’s answers and responses to defendants’ Interrogatories and Request for Production
can be denied as moot.”5 However, Defendants assert that they are “still in need of an extension
of their deadlines for expert reports and to complete discovery, all as was more fully set forth in
[their] Memorandum in Support of defendants’ Motion to Compel.”6
For the reasons set forth herein, the Motion to Compel7 is GRANTED IN PART and
DENIED IN PART AS MOOT.
I.
Background
On March 23, 2016, Plaintiff filed a Petition for Damages in Louisiana state court asserting
that Defendants are liable for damages, injuries, and losses sustained by Plaintiff as the result of a
March 23, 2015 vehicular accident.8 Plaintiff asserts that she suffered, inter alia, back, neck, and
head injuries and seeks damages for pain and suffering, medical expenses, loss of income and
impairment of earning capacity, and loss of enjoyment of life.9
4
R. Doc. 13.
5
R. Doc. 13, pp. 1-2.
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R. Doc. 13. Defendants do not address whether they still seek to compel Plaintiff to provide dates for her deposition,
and the court assumes that Plaintiff has since provided the requested dates in conjunction with her responses to
Defendants’ written discovery requests. Moreover, this court has recently explained that it “will not order Plaintiff to
attend and/or provide dates of availability for a deposition in the absence of a properly issued Notice of Deposition as
detailed by Rule 30(b)(1).” Byrd v. Castlepoint Florida Ins. Co., 2016 WL 1559584, at * 2 (M.D. La. April 18, 2016)
(citing Dang ex rel. Dang v. Eslinger, 2014 WL 3611324, at *1 (M.D. Fla. July 22, 2014) (denying motion to compel
deposition of plaintiff where defendants admitted they had not served a Rule 30(b) notice of deposition on plaintiff)
(citing cases); Home Design Servs., Inc. v. Collard Properties, LLC, 2012 WL 1801946, at *2 (D. Colo. May 17,
2012) (denying motion to compel as premature insofar as it sought an order compelling depositions where no notices
of depositions were served); Fed. R. Civ. P. 37(d)(1)(A)(i) (authorizing court to order sanctions where a party “fails,
after being served with proper notice, to appear for the person's deposition”).
7
R. Doc. 8.
8
R. Doc. 1-1.
9
R. Doc. 1-1, ¶¶ 10 & 11.
2
Defendants assert that they propounded Interrogatories and Requests for Production on
Plaintiff on July 6, 2016,10 and that Plaintiff had not provided any answers or responses to
Defendants’ written discovery requests as of at least October 27, 2016.11
II.
Law and Analysis
A. Plaintiff’s Responses to Written Discovery
A party upon whom interrogatories and requests for production of documents have been
served shall serve a copy of the answers, and objections if any, to such discovery requests within
thirty (30) days after the service of the requests. Fed. R. Civ. P. 33 and 34. A shorter or longer
time may be directed by court order or agreed to in writing by the parties. Id. A party seeking
discovery may move for an order compelling answers to interrogatories and production of
requested documents if a party fails to provide answers or responses. Fed. R. Civ. P. 37(a)(3)(B).
Here, although Plaintiff failed to timely respond to Defendants’ written discovery requests, it
appears that Plaintiff has subsequently provided responses. As stated by Defendants, “[t]hat aspect
of the Motion regarding the defendants’ need for the plaintiff’s answers and responses to
defendant’s Interrogatories and Request for Production of Documents can be denied as moot.”12
Accordingly, the court DENIES AS MOOT Defendants’ Motion to Compel Plaintiff’s responses
to Interrogatories and Requests for Production.
10
See, R. Doc. 8-2.
R. Doc. 8-1, p. 2. In Defendants’ Memorandum in Support of the Motion to Compel, Defendants additionally
explain that “one hour before filing of [the Motion to Compel] the paralegal for undersigned counsel received a
telephone call from plaintiffs’ counsel’s office stating that the discovery responses would be provided by…Friday,
October 14, 2016.” R. Doc. 8-1, pp. 2-3, n. 4. However, in Defendants’ October 27, 2016 Supplemental Memorandum
in Support of the Motion to Compel, Defendants assert that despite this representation, “still no discovery responses
have been provided.” R. Doc. 11, p. 1.
11
12
R. Doc. 13, p. 2.
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B. Fees and Expenses
Under Rule 37(a)(5)(C), if a motion to compel discovery is granted in part and denied in
part, a court may, after giving an opportunity to be heard, apportion the reasonable expenses for
the motion. As noted above, Plaintiff had an opportunity to be heard but failed to file an opposition
to the Motion to Compel. Although Plaintiff failed to timely provide responses to Defendants’
written discovery, said responses have since been provided. Further, Defendants do not renew
their request for fees and expenses in their Second Supplemental Memorandum, and instead assert
that the aspect of the Motion to Compel regarding Defendants’ need for Plaintiff’s written
discovery responses can be denied as moot. Under these circumstances, the court will not award
costs and fees at this time. However, Plaintiff is warned that additional failures to respond to
discovery may result in sanctions and/or the awarding of attorney fees. See, Colsan v. Cincinnati
Ins. Co., 2013 WL 6531917, at * 3 (M.D. La. Dec. 12, 2013).
C. Extension of Current Deadlines
Fed. R. Civ. P. 16(b)(4), provides that a scheduling order “may be modified for 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
extensions.” 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)).
Likewise, the Scheduling Order in this case informed the parties that “[a]ll motions to extend
scheduling order deadlines must be supported by facts sufficient to find good cause as required by
Rule 16, Fed. R. Civ. P. Extensions of deadlines governing discovery must be supported with
information describing the discovery already completed, what necessary discovery remains, the
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parties’ efforts to compete the remaining discovery, and any additional information showing that
the parties have diligently pursued their discovery.”13
“‘What constitutes good cause sufficient to justify the modification of a scheduling order
necessarily varies with the circumstances of each case.” Iturralde v. Shaw Group, Inc., 20120WL
1565356, at * 1 (M.D. La. May 1, 2012). In evaluating the good cause requirement, the Fifth
Circuit has instructed courts to consider four factors when determining whether to allow a
scheduling modification: (1) the explanation for failure to complete discovery on time; (2) the
importance of the amendment; (3) the potential prejudice in allowing the amendment; and (4) the
availability of a continuance to cure such prejudice. Leza v. City of Laredo, 496 Fed. Appx. 375,
377 (5th Cir. 2012) (citing Reliance Ins. Co. v. Louisiana Land & Exploration Co., 110 F.3d 253,
257 (5th Cir. 1997)).
Here, Defendants request an extension of the expert disclosure and report deadlines as well
as the discovery deadline. Defendants do not suggest specific dates to which these deadlines
should be extended. Per the current Scheduling Order, all discovery motions must be filed and all
discovery (except expert discovery) must be completed by December 15, 2016.14 The Order
further requires Plaintiff to disclose the identities and resumes of her experts by October 3, 2016
and like disclosures by Defendants by November 1, 2016.15 Plaintiff’s expert reports are due on
November 1, 2016, and Defendants’ are due December 1, 2016.16 A three-day jury trial is
scheduled to begin on October 2, 2017, and a pre-trial conference is set for July 20, 2017.17
13
R. Doc. 7.
14
R. Doc. 7.
15
R. Doc. 7.
16
R. Doc. 7.
17
R. Doc. 7.
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In their Motion to Compel, Defendants argue that “until [they] can get discovery responses
from the plaintiff and take the plaintiff’s deposition, they cannot determine what experts may be
needed in connection with this matter.”18 Defendants further argue that because they have not
been provided with any medical records or signed authorizations “the defendants have been
completely stonewalled in their efforts to develop the information needed to respond to the serious
allegations set forth [in] plaintiff’s Complaint and perform the other necessary undertakings to
retain and/or consult with experts and otherwise prepare this matter for trial.”19 As set forth above,
it now appears that Plaintiff has responded to Defendants’ discovery requests. Further, although
the court is cognizant of the difficulties that will arise when a party fails to respond to discovery
efforts, the court finds that despite these difficulties, Defendants should have been able to move
forward with some preparation of their case in the time period before Plaintiff responded to written
discovery. For example, correspondence attached to Defendants’ Motion to Compel indicates that
Plaintiff provided a letter on October 3, 2016 regarding Plaintiff’s designated experts. 20 Based
both on the allegations set forth in the Petition, as well as Plaintiff’s expert designations, it seems
to the court that Defendants’ assertion that they have been “completely stonewalled” is hyperbolic.
However, Plaintiff’s failure to provide timely responses to written discovery weighs in favor of
some modification of the current scheduling order. Moreover, in light of the fact that this case is
in its early stages, and Plaintiff has not filed any opposition to the Motion to Compel (including
Defendants’ request to extend certain deadlines), the court finds that allowing some additional
amount of time would not result in any prejudice.
18
R. Doc. 8-1, p. 4.
19
R. Doc. 8-1, pp. 4-5.
20
R. Doc. 8-4.
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Accordingly, the court GRANTS Defendants request for an extension of the expert
disclosure and report deadlines and the discovery deadline. In light of the July 20, 2017 pre-trial
conference date and the October 2, 2017 trial date, the court RESETS the following deadlines: (1)
deadline for disclosure of Defendants’ experts’ identities and resumes is reset to December 2,
2016; (2) deadline for submission of Defendants’ experts’ reports to Plaintiff is reset to December
19, 2016; (3) deadline to complete expert discovery is reset to February 17, 2017; and (4) deadline
to file dispositive and Daubert motions is reset to April 17, 2017. Any deadline not specifically
addressed in this Ruling and Order will remain as set in the Scheduling Order.21
III.
Conclusion
For the reasons set forth herein, Defendants’ Motion to Compel22 is GRANTED IN PART
and DENIED IN PART AS MOOT.
The court DENIES AS MOOT Defendants’ Motion to Compel Plaintiff’s responses to
Interrogatories and Requests for Production.
The court DENIES Defendants’ request for reasonable attorneys’ fees and costs.
The court GRANTS Defendants’ request to extend certain deadlines. The court RESETS
the following deadlines: (1) deadline for disclosure of Defendants’ experts’ identities and resumes
is reset to December 2, 2016; (2) deadline for submission of Defendants’ experts’ reports to
Plaintiff is reset to December 19, 2016; (3) deadline to complete expert discovery is reset to
February 17, 2017; and (4) deadline to file dispositive and Daubert motions is reset to April 17,
R. Doc. 7. Based on the correspondence attached to Defendants’ Motion to Compel, it appears that Plaintiff
complied with the deadline to disclose the identities and resumes of her experts. R. Doc. 8-4. The court assumes that
Plaintiff also complied with the November 1, 2016 deadline for submitting Plaintiff’s expert reports.
21
22
R. Doc. 8.
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2017. Any deadline not addressed in this Ruling and Order will remain as set in the Scheduling
Order.23 The court will issue a separate revised scheduling order.
Signed in Baton Rouge, Louisiana, on November 23, 2016.
S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
R. Doc. 7. Based on the correspondence attached to Defendants’ Motion to Compel, it appears that Plaintiff
complied with the deadline to disclose the identities and resumes of her experts. R. Doc. 8-4. The court assumes that
Plaintiff also complied with the November 1, 2016 deadline for submitting Plaintiff’s expert reports.
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