Batiste v. Walmart Inc. et al

Filing 23

ORDER denying 16 Motion to Reopen Fact Discovery, for Extension of Time to Reply to Plaintiff's Opposition to Motion for Summary Judgment, and to Compel Deposition of Marquis Hampton. Signed by Magistrate Judge Scott D. Johnson on 1/17/2023. (KAH)

Case 3:21-cv-00488-JWD-SDJ

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ASHLEY BATISTE

CIVIL ACTION

VERSUS

No. 21-488-JWD-SDJ

WALMART INC., F/K/A WALMART
STORES, INC., WAL-MART
LOUISIANA, L.L.C. AND NATOINAL
UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA

ORDER
Before the Court is Defendants’ Motion to Reopen Fact Discovery, for Extension of Time
to Reply to Plaintiff’s Opposition to Motion for Summary Judgment, and to Compel Deposition
of Marquis Hampton (R. Doc. 16), filed on September 30, 2022. Plaintiff filed a Memorandum in
Opposition (R. Doc. 22) on October 14, 2022. For the reasons below, the motion is DENIED in
its entirety.
I.

Background
This action arises from a slip and fall accident in a Walmart store in Baker, Louisiana.

Plaintiff filed her Petition for Damages in the 19th Judicial District Court, East Baton Rouge
Parish, Louisiana, on July 23, 2021, and Defendants removed to this Court on August 24, 2021.
(R. Doc. 1 at 1). A Scheduling Order was issued on November 9, 2021, including close of fact
discovery on June 30, 2022, and trial beginning April 3, 2023. (R. Doc. 7).
Defendants filed a Motion for Summary Judgment on September 7, 2022 (R. Doc. 13), and
Plaintiff filed a Memorandum in Opposition on September 28, 2022 (R. Doc. 15). Attached to
Plaintiff’s Opposition is an Affidavit by Marquis Hampton, a witness to the slip and fall incident.

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(R. Doc. 15-4). Defendants filed the instant motion in response to the inclusion of Hampton’s
affidavit in Plaintiff’s memorandum.
At the time of the accident, Hampton gave a witness statement to Defendant Walmart. (R.
Doc. 15-7). In Defendants’ initial disclosures, Hampton is listed among individuals who may have
discoverable information, and his phone number is included; his statement at the time of the
incident is included in the list of documents in Defendants’ possession. (R. Doc. 22-2 at 1-2).
Defendants allege that, despite repeated calls throughout the discovery period, Hampton was
unavailable to both parties.1 (R. Doc. 16-1 at 2). Plaintiff was, however, able to obtain an affidavit
from Hampton after Defendants filed their Motion for Summary Judgment. (R. Doc. 15-4).
Upon learning of the affidavit, Defendants attempted to set up a deposition with Hampton,
who gave dates he was available, but the discovery period had already closed, and Plaintiff’s
counsel did not consent to reopening fact discovery for the purpose of a deposition. (R. Doc. 16-1
at 3). Defendants claim that they did not have a chance to depose Hampton during the discovery
period. (R. Doc. 16-1 at 3). Defendants thus filed the instant motion asking the Court to reopen
fact discovery for the purpose of compelling a deposition of Hampton and to extend time to reply
to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment in order to incorporate
that deposition.

1

Plaintiff disputes Defendants’ characterization that Hampton was unavailable to both parties, noting that Defendants
made assumptions about Plaintiff’s contact with Hampton. (R. Doc. 22 at 4). The Court makes no determination on
these facts, as the details of Plaintiff’s contact with Hampton are irrelevant to Defendants’ pursuit of discovery in this
case.

Case 3:21-cv-00488-JWD-SDJ

II.

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Discussion
A.

Reopening Discovery

Federal Rule of Civil Procedure 16(b)(4) specifies that a scheduling order “may be
modified only for good cause and with the judge's consent.” To show good cause, the party seeking
relief has the burden of showing “that the deadlines cannot reasonably be met despite the diligence
of the party needing the extension.” Filgueira v. U.S. Bank Nat'l Ass'n, 734 F.3d 420, 422 (5th
Cir.2013) (per curiam) (internal quotation marks and citation omitted). Four factors are relevant to
determining whether there is good cause under Rule 16(b)(4): (1) the explanation for the failure to
timely comply with the scheduling order; (2) the importance of the modification; (3) potential
prejudice in allowing the modification; and (4) the availability of a continuance to cure such
prejudice. Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 237 (5th Cir. 2015) (internal quotations
and citations omitted). Defendants address these factors in turn.
First, Defendants assert that they had a “justifiable explanation” for failing to timely seek
discovery from Hampton because the witness was “uncooperative” during the discovery period—
here, “uncooperative” seems to mean that Hampton merely did not answer his phone. (R. Doc. 161 at 5). Defendants do not assert that they tried to contact Hampton through other means. There is
similarly no explanation why Defendants were unable to attempt to subpoena Hampton for
deposition or seek Court intervention before the conclusion of the discovery period.
Rather than explaining their own actions or lack thereof, Defendants make vague
allegations of wrongdoing by Plaintiff’s attorneys and non-cooperation by the witness. (R. Doc.
16-1 at 5). Defendants say Plaintiff’s counsel provided a “questionable explanation” as to why
Hampton was not available during discovery but was available “to provide a deposition” to

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Plaintiff’s counsel after a motion for summary judgment was filed. 2 (R. Doc. 16-1 at 4). The Court
notes that Plaintiff is not responsible for the actions of a third-party witness, and the supposedly
questionable explanation for their obtaining an affidavit is simply that Hampton returned
Plaintiff’s calls. (R. Doc. 22 at 2). Defendants claim they were “not made aware of this witness or
given an opportunity to depose him” (R. Doc. 16-1 at 3), but this representation is directly
contradicted by the inclusion of Hampton and his witness statement in Defendants’ own initial
disclosures (R. Doc. 22-2 at 1-2) and by Defendants’ attempts at contacting Hampton by phone.
Because Defendants offer only a demonstrably disingenuous assertion of ignorance and fail to
demonstrate adequate efforts toward timely pursuing a deposition from Hampton, the Court finds
Defendants’ explanation of their failure to timely seek discovery unacceptable and unpersuasive.
Second, Defendants’ argument for the importance of modification also turns upon their
supposed lack of opportunity to depose the witness. Defendants claim that because Plaintiff’s
argument against summary judgment puts considerable weight on Hampton’s affidavit, it is
particularly important that Defendants be able to depose him in order to respond to Plaintiff’s
arguments. (R. Doc. 16-1 at 5). Here, again, Defendants seem more intent on blaming Plaintiff’s
counsel than arguing for the importance of a schedule modification, calling the refusal to reopen
fact discovery a “thinly veiled tactic to make Hampton further unavailable” to Defendants. (R.
Doc. 16-1 at 6). The Court reiterates that Hampton is an independent third-party witness who was
known to Defendants from the outset of this litigation. Defendants’ choice to abandon attempts to
contact Hampton rather than seek Court intervention during the discovery period belies their true
position regarding the importance of Hampton’s testimony. Defendants’ miscalculation of the

2

There is no reason to believe that Hampton participated in a deposition with Plaintiff’s counsel; instead, he provided
a written affidavit of his eyewitness account of the incident.

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importance of Hampton’s testimony during the discovery period does not warrant a modification
of the discovery schedule to correct Defendants’ mistake.
Third, Defendants claim they will be significantly prejudiced if not allowed to depose
Hampton and not given an extension of time to respond to Plaintiff’s Opposition to Summary
Judgment. (R. Doc. 16-1 at 6). The Court notes that Hampton did not provide a deposition to
Plaintiff, but rather a written affidavit; a deposition of the witness goes beyond what would make
up for any theoretical prejudice caused by Plaintiff’s use of the affidavit. Furthermore, an
unfavorable decision on Defendants’ Motion for Summary Judgment would not extinguish
Defendants’ ability to question Hampton—Defendants would be able to address the affidavit at
trial, so any potential prejudice would be minimal. Finally, even if Defendants were significantly
prejudiced by a lack of deposition, it is not the Court’s responsibility to cure prejudice that a party
has brought upon itself by failing to avail itself of every opportunity to timely obtain discovery
from a witness.
Defendants have failed to demonstrate diligence in their pursuit of discovery; for this
reason and the reasons given above, the Court finds no good cause for a modification of the
discovery schedule for the limited purpose of deposing Hampton. Because the Court denies the
request to reopen discovery, Defendants’ request for extension of time to respond is unnecessary.3

3

The Court notes that Defendants have already filed a Reply Memorandum (R. Doc. 21), so the requested extension
is moot regardless.

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B.

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Motion to Compel

As the Court declines to reopen fact discovery, it need not address Defendants’ request to
compel Hampton’s deposition; nevertheless, Defendants’ deficient request to compel deposition
further demonstrates Defendants’ failure to diligently pursue discovery and supports denial of
Defendants’ motion. A party may compel deposition of any person without leave of the Court by
use of subpoena under Rule 45. Fed. R. Civ. P. 30(a)(1). Rule 45 sets forth the authority for a party
to seek an order of compliance from a non-party. It states in part: “At any time, on notice to the
commanded person, the serving party may move the issuing court for an order compelling
production or inspection.” Fed. R. Civ. P. 45(c)(2)(B)(i).
Defendants request that the Court compel Hampton’s deposition because the witness “has
shown he is difficult to reach and previously failed to return defense counsel’s calls” and did not
want to speak to counsel once he learned they represented Defendants. (R. Doc. 16-1 at 8). There
was no subpoena for Hampton’s deposition, no court order that the witness has disobeyed, and
there is no evidence in the record that Defendants have served notice upon Hampton that it seeks
to compel his deposition.4 Without a subpoena and without proof of notice to Hampton of this
Motion to Compel, the Court will not compel his deposition. See Shaw Grp., Inc. v. Zurich Am.
Ins. Co., No. CIV.A. 12-257-JJB, 2014 WL 68604, at *1 (M.D. La. Jan. 8, 2014) (denying a motion
to compel when the commanded party was not served with the motion).

4

The Certificate of Service attached to this Motion attests that this Motion was filed electronically using the CM/ECF
system and that notice will be sent to all counsel via the Court’s electronic filing system. Hampton is a non-party
witness, so he will not be served through the Court’s electronic filing system, and there is not further certification that
service was made upon Hampton himself.

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III.

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Conclusion
For the reasons above, Defendants’ Motion to Reopen Discovery, Extend Time to Reply,

and Compel Deposition is DENIED.
Signed in Baton Rouge, Louisiana, on January 17, 2023.

S
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE