Wallace Sales & Consulting, LLC v. Tuopu North America, Limited
Filing
128
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO ADJOURN TRIAL 113 AND DENYING DEFENDANT'S MOTION TO CERTIFY ORDER DENYING LEAVE TO AMEND FOR INTERLOCUTORY APPEAL AND FOR STAY OF PROCEEDINGS 117 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WALLACE SALES & CONSULTING, LLC,
Case No. 15-cv-10748
Plaintiff/Counter Defendant,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
v.
TUOPU NORTH AMERICA, LIMITED,
UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND
Defendant/Counter Claimant.
/
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO ADJOURN TRIAL [113]
AND DENYING DEFENDANT’S MOTION TO CERTIFY ORDER DENYING LEAVE TO
AMEND FOR INTERLOCUTORY APPEAL AND FOR STAY OF PROCEEDINGS [117]
I. INTRODUCTION
The present case was filed on March 2, 2015, Dkt. No. 1, and originally
scheduled to go to trial in October 2016, Dkt. No. 32. In March 2016, the Court
granted the parties an extension of the time frame for scheduling, moving the trial
date to December 2016. See Dkt. No. 45. Parties were granted yet another
scheduling extension in May 2016, although the trial date remained in midDecember. Dkt. No. 57. In June 2016, the Court amended the scheduling order
again and set a trial date for December 13, 2016. Dkt. No. 61. For the last five
months this trial date has remained with the recognition that it will not be extended
or adjourned. See Dkt. No. 73, p. 2 (Pg. ID No. 1466) (“IT IS FURTHER
ORDERED that the discovery deadline is hereby extended through September
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30, 2016, with the parties’ recognizing that this adjournment will not extend the
December 13, 2016 trial date.”).
In the past two weeks, Defendant has filed several motions seeking to delay
the trial date. Defendant has requested a 90-day adjournment, Dkt. No. 113, sought
permission for an interlocutory appeal and stay of proceedings, Dkt. No. 117, and
recently filed a motion to strike Plaintiff’s expert witness based on reports
submitted over two months ago, Dkt. No. 119. Plaintiff has not concurred in any of
Defendant’s motions to postpone trial.
For the reasons discussed herein, the Court will DENY Defendant’s Motion
to Adjourn Trial [113] and DENY Defendant’s Motion to Certify Order Denying
Leave to Amend for Interlocutory Appeal and for Stay of Proceedings [117].
II. DISCUSSION
A. Motion to Adjourn Trial
Defendant moves the Court to adjourn the trial date pursuant to E.D. Mich.
L.R. 40.2 and Fed. R. Civ. P. 16(b)(4). Dkt. No. 113, p. 2 (Pg. ID No. 3014).
Defendant contends that the trial date should be postponed at least ninety (90) days
for the following reasons: (1) Plaintiff filed a Motion to Strike Defendant’s Expert
Witness on October 19, 2016, because Defendant did not timely disclose their
expert’s report, and the fact that the matter has not yet been resolved negatively
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impacts Defendant’s ability to prepare for trial; (2) Defendant deposed Plaintiff’s
expert witness on October 20 and October 28, and seeks to identity a rebuttal
expert witness to analyze data, although the period in which to identify a rebuttal
expert witness passed in mid-October; and (3) the parties will be engaging in a
mediation session on November 29, 2016, before mediator Gene J. Esshaki and
Defendant believes that adjournment would make the parties more likely to reach a
resolution.
Plaintiff opposes the motion for adjournment because it believes that
Defendant’s goal in adjourning the trial date is to render its late-disclosed expert
witness report timely, and to provide Defendant additional time in which to retain a
rebuttal expert witness. Dkt. No. 118, pp. 9–10 (Pg. ID No. 3219–20). Defendant
replies that allowing trial to proceed would reward Plaintiff for “dilatory tactics” in
discovery. Dkt. No. 121, p. 5 (Pg. ID No. 3559).
Local Rule 40.2 states:
Counsel or any party without counsel shall be prepared and present
themselves as ready in all cases set for trial or for pretrial on the date
set unless, on timely application and good cause shown, the cases are
continued. Where application is made for the continuance of the trial
of a case, such application shall be made to the Court as soon as the
need arises.
Rule 16(b)(4) provides that “[a] schedule may be modified only for good cause and
with the judge’s consent.” FED. R. CIV. P. 16(b)(4). “A court asked to modify a
scheduling order for good cause ‘may do so only if [a deadline] cannot reasonably
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be met despite the diligence of the party seeking the extension.’ ” Marcilis v. Twp.
of Redford, 693 F.3d 589, 597 (6th Cir. 2012) (quoting Leary v. Daeschner, 349
F.3d 888, 906 (6th Cir. 2003)). An “important consideration for a district court
deciding whether Rule 16’s good cause standard is met is whether the opposing
party will suffer prejudice by virtue of the amendment.” Leary, 349 F.3d at 906
(internal quotation marks omitted).
The Court will not grant Defendant’s request for an adjournment of the trial
date. The Court finds that the parties should be able to prepare for the trial date,
which has been scheduled for many months, if they exercise the ordinary amount
of diligence expected of all attorneys appearing before this Court. The Court
further finds that Plaintiff would be prejudiced from having yet another extension
granted in this case. Such a decision is fully within the Court’s “broad discretion to
enforce [its] scheduling orders.” Estes v. King’s Daughters Med. Ctr., 59 F. App’x
749, 752 (6th Cir. 2003).
First, the Court does not find that the November 29, 2016 date for mediation
in the case constitutes “good cause” for adjourning the trial date. Plaintiff
originally filed the instant case in state court in March 2015 and Defendant has
been aware of the of the approximate trial date since the March 14, 2016 Stipulated
Order. Dkt. No. 45. The parties have engaged in facilitative mediation two prior
times with Gene Esshaki acting as the facilitator. Plaintiff alleges that the July
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2016 mediation was adjourned so that Defendant could provide updated sales
information to Plaintiff. Dkt. No. 118, p. 18 (Pg. ID No. 3228). The rescheduled
session in August 2016 was allegedly cancelled because Defendant failed to
provide this updated information. Id. Furthermore, the Court does not agree that
the instant claims going to trial involves issues so “complex” that the parties could
not adequately negotiate a possible settlement in the time between the mediation
and the trial date. See Watson v. Trevino, No. 05-CV-74043, 2007 WL 2909410, at
*1–2 (E.D. Mich. Oct. 5, 2007) (finding that a facilitation date several weeks
before trial did not constitute “good cause” to adjourn).
Second, concerning Plaintiff’s contention regarding the length of time the
Court will need to consider Plaintiff’s Motion to Exclude Defendant’s Expert
Witness, an order on this motion will be issued shortly, as briefing has already
concluded. In regard to Defendant’s newly pending motions to pursue an
interlocutory appeal and strike Plaintiff’s timely disclosed expert, the Court does
not find that Defendant should be able to file additional motions to manufacture a
reason to postpone the trial date. The motion regarding Defendant’s request for an
interlocutory appeal is discussed below.
Finally, that Defendant seeks more time to identify a rebuttal expert witness
is of little consequence because the period in which to disclose rebuttal expert
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witnesses already passed in October 2016. Defendant missed that deadline, just as
it missed the deadline to disclose its expert witness report in September 2016.
In sum, the Court does not find Defendant has shown “good cause” under
Local Rule 40.2 or Rule 16 to adjourn the trial date. Therefore, the Court DENIES
Defendant’s motion to adjourn the trial date.
B. Motion for Certification to Pursue an Interlocutory Appeal
Defendant has also moved for certification for interlocutory appeal pursuant
to 28 U.S.C. § 1292(b). Dkt. No. 117.
A party seeking interlocutory appeal must demonstrate that “(1) the order
involves a controlling question of law, (2) a substantial ground for difference of
opinion exists regarding the correctness of the decision, and (3) an immediate
appeal may materially advance the ultimate termination of the litigation.” In re
City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002); see also 28 U.S.C. § 1292(b).
Review under § 1292(b) is granted “sparingly and only in exceptional cases.” Id.
(citing Kraus v. Bd. Of County Rd. Comm’rs, 364 F.2d 919, 922 (6th Cir. 1966)).
“It is to be used only in exceptional cases where an immediate appeal may avoid
protracted and expensive litigation and is not intended to open the floodgates to a
vast number of appeals from interlocutory orders in ordinary litigation.” Kraus,
364. F.2d at 922.
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Defendant has not demonstrated that a substantial ground for difference of
opinion exists regarding the correctness of the Court’s prior decision. Defendant
argues that a substantial ground for difference of opinion exists because part of the
Court’s order addressed the futility of its proposed counterclaims. See Dkt. No.
117, p. 9 (Pg. ID No. 3245). A substantial ground for difference of opinion exists
where:
(1) the question is difficult, novel and either a question on which there
is little precedent or one whose correct resolution is not
substantially guided by previous decisions;
(2) the question is difficult and of first impression;
(3) a difference of opinion exists within the controlling circuit; or
(4) the circuits are split on the question.”
In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (internal quotation marks
and citations omitted). The questions presented before the Court during the motion
to amend were not difficult, nor were they novel. Rather, the primary question was
whether a delay of more than six months in bringing six new claims and adding a
new counter-defendant constituted undue delay and unfair prejudice. Based on the
specific facts in this case, the Court decided that answer in the affirmative, and
then went on to find that the claims sought to be added were also futile. Futility
was not the sole or primary reason that leave to amend was denied.
As the Court explained in its order denying reconsideration, “even if
[Defendant’s] claims were not barred by the applicable statute of limitations, leave
to amend was properly denied based on [Defendant’s] undue delay and the
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substantial prejudice to [Plaintiff] and Wallace that would inevitably result from an
amendment at this late stage in the litigation.” Dkt. No. 112, p. 5 (Pg. ID No.
3010). Defendant’s motion makes no effort to address the Court’s findings of
undue delay or substantial prejudice to Plaintiff from allowing six new claims and
a new counter-defendant to be added shortly before trial, where Defendant knew of
the potential claims since December 2015. Accordingly, because the Court had
ample reason to deny the amendments based on undue delay and substantial
prejudice to the opposing party, Defendant’s arguments relying on the Court’s
finding of the futility do not demonstrate that “a substantial ground for difference
of opinion exists regarding the correctness of the decision.” See In re City of
Memphis, 293 F.3d at 350.
Similarly, Defendant has not demonstrated that an interlocutory appeal
would materially advance the litigation. Certification for an interlocutory appeal
“has been deemed inappropriate when the parties have completed discovery, are
ready for trial, and where the case could be tried before the interlocutory appeal
process could take place.” Local 836 of United Auto. Aerospace & Agr. Implement
Workers of Am. (UAW) v. Echlin, Inc., 670 F. Supp. 697, 708 (E.D. Mich. 1986)
(citing Kennard v. United Parcel Service, Inc., 531 F. Supp. 1139 (E.D. Mich.
1982)). Section 1292(b) “does not authorize piecemeal appeals.” Id. Here, allowing
an interlocutory appeal would prolong the litigation, as many months would be
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required before the case would be ready for appellate argument, whereas it is
currently scheduled for trial in the district court in less than three weeks.
Accordingly, the Court DENIES Defendant’s motion for certification for an
interlocutory appeal. The Court also DENIES Defendant’s request for a stay.
III. CONCLUSION
For the reasons stated herein, the Court DENIES Defendant’s Motion to
Adjourn Trial [113] and DENIES Defendant’s Motion to Certify Order Denying
Leave to Amend for Interlocutory Appeal and for Stay of Proceedings [117].
IT IS SO ORDERED.
Dated:
November 22, 2016
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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