Boyd v. City of Warren et al

Filing 45

OPINION AND ORDER DENYING PLAINTIFF'S 43 Second MOTION to Adjourn the joint discovery plan - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES FRANCIS BOYD,
Plaintiff,

Case No. 16-12741

v.

District Judge Laurie J. Michelson
Magistrate Judge R. Steven Whalen

CITY OF WARREN, A Municipal corporation;
WARREN POLICE DEPARTMENT; OFFICER
COLIN MCCABE, OFFICER JEFFREY
MASSERANG; OFFICER ROBERT
HORLOCKER; and UNKNOWN OFFICERS
OF THE WARREN POLICE DEPARTMENT,
Defendants.
________________________________/
OPINION AND ORDER
Plaintiff Charles Boyd has brought claims arising out of his arrest by officers of
the Warren, Michigan Police Department during a May 28, 2014 traffic stop. Before the
Court is his Motion for Leave to File an Expert Witness List and to Adjourn the Joint
Discovery Plan Ninety Days [Doc. #43]. For the reasons that follow, the request to file an
expert witness list is DENIED. The request to extend the joint discovery plan is
GRANTED IN PART, only to provide an additional 24 days to complete depositions, but
is otherwise DENIED.

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I.

FACTS

Plaintiff filed his complaint on July 25, 2016, alleging excessive force and failure
to prevent excessive force in violation of the Fourteenth Amendment; deliberate
indifference and “deliberate indifference/failure to supervise or train” under the Eighth
Amendment; gross negligence; assault and battery; and intentional infliction of emotional
distress (“IIED”) by Defendants during a May 28, 2014 traffic stop and arrest. He filed an
amended complaint on October 11, 2016 [Doc. #11]. On October 25, 2016, Defendants
filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6). On May 23, 2017, following a
reassignment of the case to the Hon. Laurie J. Michelson, the case was referred to the
undersigned Magistrate Judge for pretrial matters. Ultimately, on April 18, 2018, the
Court granted in part and denied in part the motion to dismiss, ordering as follows:
(1) The gross negligence claim (Count III) was dismissed;
(2) The assault and battery claim against Defendant Horlocker was dismissed;
(3) The intentional infliction of emotional distress claim against Defendant
Horlocker was dismissed;
(4) The municipal liability claim, and claims against the City of Warren and the
Warren Police Department were dismissed;
(5) All other claims remain. [Doc. #28].
The case was then re-referred for pretrial matters, and on June 26, 2018, following
a scheduling conference, the Court entered an amended scheduling order [Doc. #38]

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setting a due date of December 15, 2018 for Plaintiff’s expert witness disclosures, a
discovery cut-off date of March 31, 2019, and a dispositive motion cut-off date of April
30, 2019. The order provided that “[t]his Court will not order discovery to take place
subsequent to the discovery cutoff date,” and that while the parties could submit a joint
motion to extend discovery, “[t]he extension should not affect the other scheduled dates.”
In order to informally resolve a discovery issue, the Court held a telephonic status
conference with attorneys for the parties on September 18, 2018. The issue involved
Plaintiff’s failure to sign medical releases and to produce authorizations for medical
information, initial disclosures, and past due responses to Defendants’ document requests.
Counsel appeared to be in agreement that the Plaintiff would produce this material by
September 24, 2018. However, when Plaintiff was non-compliant with this agreement,
Defendants filed a motion to compel discovery on October 8, 2018 [Doc. #40]. In my
order granting the motion, I commented that “I am very concerned about Plaintiff’s lack
of attention to this case, and his failure to cooperate in discovery. I am likewise
concerned about his attorney’s failure to communicate with defense counsel.” I ordered
that the Plaintiff produce the requested discovery, including medical releases, within 14
days, and sanctioned the Plaintiff and his attorney each $500.00 (total $1,000.00) under
Fed.R.Civ.P. 37(a)(5)(A), representing Defendants’ reasonable costs in bringing the
motion. In the present motion, Defendants’ counsel states that he has not received
payment from either the Plaintiff or his lawyer.

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The cut-off date for Plaintiff to file his expert disclosures was December 15, 2018,
but to date, he has not filed his disclosures. He filed the present motion on March 8,
2019. By way of explanation for the failure to timely file expert disclosures, counsel
states in this motion that a former employee failed to place the due date on counsel’s
calendar. This former employee was fired on December 21, 2018. Counsel further states
that he was not aware of the passing of the deadline until he received Defendants’ expert
disclosures on January 15, 2019.
II.

LEGAL PRINCIPLES

Under Fed.R.Civ.P. 6(b)(1), where a party requests an extension of a deadline after
that deadline has passed, the Court can grant an extension only on a motion and upon a
finding of good cause and excusable neglect. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S.
871, 896 (1990) (“[A]lthough extensions before expiration of the time period may be
‘with or without motion or notice,’ any post deadline extension must be ‘upon motion
made,’ and is permissible only where the failure to meet the deadline ‘was the result of
excusable neglect.’ ”). The excusable neglect standard is “strict, and can be met only in
extraordinary cases.” Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir. 2005). In
Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993), the Court
identified four factors to consider in determining whether to grant an extension: (1) the
danger of prejudice to the nonmoving party; (2) the length of the delay and its potential
impact on judicial proceedings; (3) the reason for the delay, including whether the delay

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was within the reasonable control of the moving party; and (4) whether the late filing
party acted in good faith.
III.

DISCUSSION

While the Supreme Court in Pioneer set out four factors to consider, “the reason
for a party's delay ‘is the most important [factor] to the excusable neglect inquiry.’” Gohl
v. Livonia Pub. Sch., 2016 WL 2848421, at *2 (E.D. Mich. May 16, 2016), quoting
Symbionics Inc. v. Ortlieb, 432 Fed.Appx. 216, 219 (4th Cir. 2011). In Gohl, the Court
declined to find excusable neglect where all of the factors except for the reason for the
delay weighed in favor of the moving party. See also Jarvis v. Parker, 13 F. Supp. 3d 74,
78–80 (D.D.C. 2014)(finding that fault–i.e., reason for the delay–is the most critical
factor in determining excusable neglect)(citing cases).
In this case, it is undisputed that there has been neglect. The deadline for Plaintiff
to file his expert disclosures has long passed, and indeed, this motion was filed almost
three months after that deadline. The question is whether that neglect was “excusable,”
and in that regard Plaintiff places most of the blame on a former employee who failed to
calendar the dates in the scheduling order. However, in Pioneer, the Supreme Court
made clear that “inadvertence, ignorance of the rules, or mistakes construing the rules do
not usually constitute ‘excusable’ neglect.” Pioneer, 507 U.S. at 392. In Halmon v. Jones
Lang Wootton USA, 355 F. Supp. 2d 239, 242 (D.D.C. 2005), the Court observed that the
moving party “offered what the court cannot help but characterize as the lame excuse that

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counsel ‘did not place the due date on her calendar.’” I would place it in “the dog ate my
homework” category of excuses. As the Sixth Circuit noted in Marsh v. Richardson, 873
F.2d 129, 131 (6th Cir. 1989), “Most trial lawyers know that meeting time deadlines is a
part of what their practice is all about.” See also Casanova v. Marathon Corp., 499
F.Supp.2d 32, 34 (D.D.C. 2007) (“mere characterization of prior counsel's failure [to
timely file answer to counterclaim] as an oversight is insufficient” to show excusable
neglect).
In my previous order granting Defendants’ motion to compel, I expressed my
concern about Plaintiff’s lack of attention to this case and his failure to cooperate in
discovery. I see a similar lack of diligence in the context of the present motion. While
Plaintiff’s counsel states that he first became aware of the missed deadline when he
received the Defendants’ expert disclosures on January 15, 2019, he did not file this
motion until almost three months later, with less than a month left in the discovery period.
Moreover, one would think that when his employee was terminated in December,
presumably for cause, counsel would have undertaken an audit of his or her work,
including the accuracy of the calendar entries.1 Finally, given the generous discovery
period provided in the June 26, 2018 scheduling order–a schedule to which Plaintiff

1

Indeed, regardless of whether clerical staff calendared the dates, counsel himself
agreed to the deadline for expert disclosures both in the Joint Discovery Plan filed on
May 29, 2018 [Doc. #34] and at the scheduling conference held on June 25, 2018. He
received ECF notice of the scheduling order on June 26, 2018.
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agreed–it seems astounding that he has not taken any depositions, even of the Defendant
Police Officers.2
Against the backdrop of Plaintiff’s lethargic prosecution of his case, counsel’s
excuse for missing the deadline for filing his expert disclosures rings hollow, and does
not approach the demanding standard for showing excusable neglect. In addition, given
the impending close of discovery and the dispositive motion cut-off date, extending the
dates would be prejudicial to the Defendants and disruptive of the Court’s schedule.
Apparently the parties have made some attempt to schedule depositions of the
Defendants and at least two other police witnesses. Clearly it will not be possible to
complete these deposition before the close of discovery. However, while I find no
reasonable basis to extend discovery for 90 days, or to extend the dispositive motion cutoff date, I will extend discovery for a period of 24 days from the date of this Order, for
the limited purpose of Plaintiff taking the depositions of the Defendant Officers and two
other witnesses.
IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to file an expert
witness list is DENIED.
IT IS FURTHER ORDERED that the discovery cut-off period is extended 24 days
from the date of this Order, for the limited purpose of Plaintiff taking the depositions of

2

Defendants also note that during the first nine months of the discovery period,
Plaintiff pursued no discovery at all.
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the Defendant Officers and two other witnesses. No other changes will be made to the
scheduling order.
IT IS FURTHER ORDERED that in all other respects, Plaintiff’s motion is
DENIED.

s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: March 29, 2019

CERTIFICATE OF SERVICE
I hereby certify on March 29, 2019 that I electronically filed the foregoing paper with
the Clerk of the Court sending notification of such filing to all counsel registered
electronically. I hereby certify that a copy of this paper was mailed to non-registered ECF
participants on March 29, 2019.
s/Carolyn M. Ciesla
Case Manager for the
Honorable R. Steven Whalen

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