Rivera v. Praetorian Insurance Company
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Jillyn K Schulze on 10/19/2015. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VALENTIN ACOSTA RIVERA
v.
PRAETORIAN INSURANCE COMPANY
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Civil Action No. JKS 14-2781
MEMORANDUM OPINION
Presently pending is Plaintiff’s Motion for Reconsideration. ECF No. 37. The motion
has been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons set
forth below, Plaintiff’s motion will be denied.
1. Background.
Plaintiff, through counsel, agreed to participate in an Independent Medical Exam (IME)
but failed to appear, without notice or excuse, on two separate occasions (January 30, 2015 and
April 8, 2015). On April 30, 2015, Defendant moved to preclude Plaintiff from presenting
evidence of his damages. ECF No. 31. The motion was based on the following undisputed facts.
Defense counsel contacted Plaintiff’s counsel immediately upon Plaintiff’s first failure to appear
and was told that Plaintiff was not there because of a work conflict. A second IME was
scheduled for April 8, 2015, and Plaintiff’s counsel agreed in writing that Plaintiff would appear
for that examination. ECF No. 31-5. Nevertheless, Plaintiff again failed to appear. Defendant
was billed by both the physician and the interpreter for Plaintiff’s failure to appear. Plaintiff
failed to file any response to Defendant’s motion to preclude.
On May 29, 2015, the court noted this failure to respond and ordered Plaintiff to show
cause within 14 days why Defendant’s motion should not be granted. ECF No. 32. Plaintiff
failed to respond to this order as well, and on June 22, 2015, the court granted Defendant’s
motion, in part, precluding Plaintiff from introducing expert testimony to support his claim for
personal injuries. This Order also directed Plaintiff to reimburse Defendant for IME cancellation
fees. ECF No. 34. Almost two months later, on August 19, 2015, Plaintiff filed the pending
motion requesting that the court reconsider its Order precluding Plaintiff from introducing
evidence of damages.1
2. Analysis.
Motions for reconsideration of an interlocutory order are governed by Federal Rule of
Civil Procedure 54(b) and “are not subject to the strict standards applicable to motions for
reconsideration of a final judgment.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505,
514 (4th Cir. 2003). Resolution of such a motion is “committed to the discretion of the district
court” and the goal “is to reach the correct judgment under law.” Id. at 515. While the precise
standard governing a motion for reconsideration of an interlocutory order is unclear, a court in
this circuit may use the Rule 59(e) standard as guidance. Butler v. Directsat USA, LLC, 307
F.R.D. 445, 449 (D. Md. 2015). Pursuant to Rule 59(e), a district court may alter or amend a
judgment: “(1) to accommodate an intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error of law [or] prevent manifest
injustice.” U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir.
2002). “[A] motion to reconsider is not a license to reargue the merits or present new evidence.”
Royal Insurance Co. of America v. Miles & Stockbridge, P.C., 142 F. Supp. 2d 676, 677 n.1 (D.
Md. 2001) (citing RGI, Inc. v. Unified Indus., Inc., 963 F. 2d 658 (4th Cir. 1992)).
Counsel for Plaintiff asserts that he did not know about the court’s May 29, 2015 show
cause order until August 19, 2015 because his office “was having serious problems with its
computer systems” and his office “is not familiar with the CM/ECF paperless filing system.”
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Plaintiff’s motion inexplicably refers to the May 29, 2015 show cause order rather than the June 22, 2015 order precluding
evidence.
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ECF No. 37 at 1-2. Counsel argues that, given Plaintiff’s serious injuries and the parties’
stipulation to address only the issue of damages at trial, the court should view Plaintiff’s failure
to appear for the IME appointments as “a minor technical violation that can easily be remedied
before trial.” Id. Counsel contends that “there are alternative sanctions that are fairer and more
just” than precluding his evidence of damages, but does not offer any suggestions. Id. at 3.
Defendant contends that computer problems in April and May and a general unfamiliarity
with CM/ECF cannot justify counsel’s inactivity for three months. Defendant points out that
Plaintiff’s counsel (1) never contacted defense counsel to explain the alleged computer problems;
(2) never explained why Plaintiff twice missed the IME appointments (other than to assert that it
“is completely the fault of Plaintiff’s attorney”); and (3) has not complied with the court’s June
22, 2015 Order directing Plaintiff’s counsel to reimburse Defendant for the IME cancellation
fees. ECF No. 38 at 2 n.2. Notably, nowhere in Plaintiff’s motion for reconsideration does
counsel claim that he did not know of the June 22, 2015 Order. As Plaintiff has not replied to
Defendant’s opposition, Defendant’s assertions are unrebutted and thus are accepted.
Plaintiff’s motion for reconsideration fails to show a manifest injustice or any of the other
limited circumstances outlined in Rule 59(e), which is being used for guidance. Plaintiff has
failed to comply with every order the court has issued, and the court can no longer provide him
with leeway. Counsel knew, or should have known, that his client did not attend the IMEs, and
thus his computer problems cannot excuse the failure to contact the court or opposing counsel.
See Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 408-09 (4th Cir. 2010) (affirming the
district court’s decision to deny a Rule 59(e) motion because “[Plaintiff’s] counsel had good
reason, after realizing he was experiencing computer problems, to check the court’s docket after
such date or contact the court and opposing counsel to notify them of his computer troubles”);
Grant v. Shapiro & Burson, LLP, Case No. DKC 11-1724, 2012 U.S. Dist. LEXIS 73854, *4-5
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(D. Md. May 29, 2012) (“The alleged computer problems and lack of paralegal support suffered
by Plaintiff’s counsel fail to excuse this untimely response.”); Shuey v. Schwab, Case No. 81190, 2008 WL 5111911, at *1 (M. D. Pa. Dec. 2, 2008) (finding no manifest injustice stemming
from dismissal of a complaint where the unavailability of a senior paralegal and a “technology
glitch” had caused the plaintiffs’ counsel to miss a court-imposed deadline). The contention that
Plaintiff should not be prejudiced by his counsel’s mistakes is equally unavailing. See Link v.
Wabash R. Co., 370 U.S. 626, 633-34 (1962) (“Petitioner voluntarily chose this attorney as his
representative in the action, and he cannot now avoid the consequences of the acts or omissions
of this freely selected agent.”); In re Fisherman’s Wharf Fillet, Inc., 83 F. Supp. 2d 651, 660
(E.D. Va. 1999) (noting Link’s comment that the client’s remedy is against the attorney in a suit
for malpractice).
Federal Rule of Civil Procedure 16(b) requires the court to set a discovery deadline and
provides that the deadline may be modified only for good cause and with the court’s consent.
Discovery delays affect not only the parties; they also contribute to disrespect for the judicial
process and clog the court’s dockets. Adherence to discovery deadlines is critical to the court’s
management of its caseload and to restoring confidence and integrity in court proceedings. See
Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375-76 (D. Md. 1999);
Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985) (a scheduling order “is
not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel
without peril”); see also Dag Enterprises, Inc. v. Exxon Mobil Corp., 226 F.R.D. 95 (D.D.C.
2005). The primary factor in determining the existence of good cause for a discovery extension
is the requesting party’s diligence during the discovery period. In particular, where a party is
aware that matters are pending before the discovery cutoff and neglects them, the party has failed
to show good cause. Id. at 105-06; see also Potomac Elec., 190 F.R.D. at 375 (“good cause”
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means that the deadline could not be met despite diligent efforts).
Here, the discovery deadline passed approximately eight months ago. Plaintiff missed
two IMEs, and through counsel, disregarded a defense motion, a show cause order, and a court
order to reimburse Defendant for its costs. Other than the show cause order, he does not deny
knowledge of these papers. In addition, Plaintiff’s claim that Defendant will not be prejudiced
because the IME could still be scheduled is meritless. Defendant has been prejudiced because it
invested a large amount of time and money scheduling the IMEs, a process that began in
December 2014. Defendant notes (1) the arrangements it made for an interpreter, (2) the time
spent preparing its motion to preclude, (3) the time spent reevaluating the case in preparation for
the settlement conference in light of the court’s June 22 Order, (4) the time spent preparing the
pretrial statement relying on the June 22 Order, and (5) the fact that discovery closed on
February 2, 2015. ECF No. 38 at 4.
3. Conclusion.
The sanction imposed—the preclusion of expert testimony to support the personal
injuries claim—is, under these circumstances, both reasonable and necessary to ensure the
integrity of the court’s orders and remedy the prejudice to Defendant. The motion for
reconsideration will therefore be denied.
Date: October 19, 2015
/S/
Jillyn K. Schulze
United States Magistrate Judge
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