Nettles v. Skabardis et al

Filing 84

ORDER granting 82 Motion for Timely Filed Expert Disclosures. Signed by Magistrate Judge Patricia T. Morris. (KCas)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JONATHAN NETTLES,

Case No. 1:22-cv-10499
Thomas L. Ludington
United States District Judge

Plaintiff,
v.

Patricia T. Morris
United States Magistrate Judge

ERIK SKABARDIS and
DAVID DUFFETT,
Defendants.

/

ORDER GRANTING DEFENDANTS’ MOTION FOR
TIMELY FILED EXPERT DISCLOSURES (ECF No. 82)
Plaintiff filed this civils rights actions in forma pauperis under 42 U.S.C. §
1983 alleging violations of his Fourth and Fourteenth Amendment rights.1 (ECF
No. 1). On May 8, 2023, the Court issued a scheduling order directing the parties to
exchange their Expert Witness Disclosures on or before January 19, 2024. (ECF
No. 81, PageID.592). The Scheduling order dictates that “[d]isclosures under Rule
26(a)(1) and (2)(B), and the corresponding discovery requests and responses, must

Plaintiff alleges a series of Fourth Amendment violations (i.e., illegal search and
seizure, false arrest, excessive force, “Franks violations,” and malicious prosecution), and
Fourteenth Amendment (i.e., Equal Protection and Due Process). (ECF No. 7, PageID.17–
19).
1

not be filed until they are used in proceedings or the Court orders them to be filed
pursuant to LR 26.2.” (Id. at 592–93) (emphasis added).
Defendants provided Plaintiff with their expert disclosures on January 22,
2024. 2 (ECF No. 82, PageID.609, ¶ 3). Plaintiff objected to Defendants’ expert
disclosures as untimely because they were sent three calendar days after the courtordered deadline. (Id. at PageID.609, ¶ 4; ECF No.82-2, PageID.617). On January
30, 2024, Defendants filed a Motion to Find their Expert Disclosures were Timely
Made, pursuant to Fed. R. Civ. P. 6(b), requesting the Court issue an order accepting
Defendants’ expert disclosures as timely. (ECF No. 82, PageID.611). In their
motion, Defendants highlight that the main expert identified in their January 22
Expert Disclosures, Brian Pitt, was included in their September 13, 2023 preliminary
expert witness list. (Id. at PageID.609, ¶ 7). The expert was also listed in Plaintiff’s
preliminary witness list as an expert in digital forensic analysis. (Id. at PageID.609,
¶ 8). And Plaintiff received the expert’s curriculum vitae in response to his
document request. (Id. at PageID.610, ¶ 9).
First, I address the contention that the expert disclosures were due to be filed
on or before January 19, 2024. (ECF No. 83, PageID.637). The Scheduling Order
states that the expert witness disclosures were due on January 19, 2024, but they

Defendants repeatedly state that their expert disclosures were sent to Plaintiff on
January 20, 2024 (ECF No. 82, PageID.609 ¶¶ 3, 4), but their exhibits demonstrate the
disclosures were sent on Monday, January 22, 2024 (ECF No. 82-2, PageID.617).
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were not to be filed “until they are used in the proceedings or the Court orders them
to be filed pursuant to LR 26.2.” (ECF No. 81, PageID.593). To date, the disclosures
have not been used in any court proceedings nor has the Court ordered them to be
filed. Thus, Defendants have not missed a Court filing deadline. As such, the Court
cannot grant Defendants’ request to find Defendants’ expert disclosures were timely
filed. Moreover, granting such a request would be disingenuous as while the
disclosures are attached as exhibits to Defendants’ moving papers, to date they have
not been filed on the docket.
Next, I address Defendants’ late service of the expert disclosures. Although
the Scheduling Order does not dictate a deadline to file the disclosures with the
Court, Defendants were required to serve the disclosures on Plaintiff on January 19.
(ECF No. 81, PageID.593). Defendants acknowledge the expert disclosures were
served one business day after the service deadline. (ECF No.82, PageID.609 ¶¶ 3,
4; ECF No. 82 PageID.61). Plaintiff objected to the tardy service, but did nothing
more. (ECF No. 83, PageID.637 ¶ 4). Thus, the relief that Defendants seek is in
essence an order from the Court finding their expert disclosures were timely served.
(Id. at PageID.611).
Fed. R. Civ. P. 6(b)(1)(B) states that
(1) In general. When an act may or must be done within a specified time, the
court may, for good cause, extend the time:

(B) on motion made after the time has expired if the party failed to act
because of excusable neglect.
The controlling legal standard for evaluating proclaimed evidence of excusable
neglect necessitates the balancing of five factors: “(1) the danger of prejudice to the
nonmoving party, (2) the length of the delay and its potential impact on the judicial
proceedings, (3) the reason for the delay, (4) whether the delay was within the
reasonable control of the moving party, and (5) whether the late-filing party acted in
good faith.” Dealer Computer Services, Inc. v. Dale Spradley Motors, Inc., No. 1111853, 2011 WL 4737586, at *1 (E.D. Mich. Oct. 5, 2011).
First, both parties admit they were aware of Brian Pitt’s potential involvement
as an expert in the case as early as September 2023. (ECF No. 82, PageID.609–10;
ECF No. 83, PageID.637). In fact, Plaintiff identified Mr. Pitt as a potential witness
in his case in his preliminary witness list. (ECF No. 83, PageID.637). This fact
demonstrates that while untimely this late filing did not prejudice Plaintiff.
Second, the delay was negligible as Defendants served the disclosures the next
business day (i.e., the following Monday), and Plaintiff was aware of Mr. Pitt’s
potential involvement in the case. Doe v. U.S. Attorney, General, No. 2:23-CV10053-TBG-JJCG, 2024 WL 69809, at * 3 (E.D. Mich. Jan. 5, 2024); United States
v. Driver, No. 11-cr-20219, 2016 WL 6276907, at *1 (E.D. Mich. Oct. 27, 2016).
Third, Defendants presented a reasonable explanation for the delay (i.e., the deadline

was incorrectly calendared). (ECF No. 82, PageID.612). While this mistake is not
excusable, the delay of one business day is reasonable. This factor also weighs in
Defendants’ favor.
Fourth, as it was Defendants’ mistake of calendaring the incorrect date that
resulted in the delay, the reasonable control factor weighs in favor of Plaintiff. Last,
the Court finds no malice or ill will behind Defendants’ actions and Plaintiff has
identified none. Thus, this factor weighs in favor of Defendants.
In summary, the Court finds that the factors suggest Defendants should not be
penalized for the late service of their expert disclosures. For the reasons discussed
above, Defendants’ Motion (ECF No. 82) is GRANTED.
Review of this order is governed by 28 U.S.C. § 636(b)(1), Fed. R. Civ. P.
72, and E.D. Mich. LR 72.1(d).
IT IS SO ORDERED.
Date: February 7, 2024

S/ patricia t. morris
Patricia T. Morris
United States Magistrate Judge