Robinson v. Minnesota, State of et al

Filing 340

ORDER denying 326 Motion for Leave to File Reply/Surreply; granting 334 Motion ; granting 310 Motion for Extension of Time(Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 5/6/2020. (LCC)

CASE 0:17-cv-00437-DSD-KMM Document 340 Filed 05/06/20 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
_________________________________
Tony Terrell Robinson,

Case No. 17cv437-DSD-KMM

Plaintiff,
ORDER

v.
Minnesota, State of et al.
Defendants.
_________________________________

This matter is before the Court on two motions made by plaintiff Tony Terrell
Robinson: a Motion for Extension of Time to Correct Mr. Robinson’s Expert’s
Affidavit (ECF No. 310) and a Motion to Enlarge the Number of Discovery Requests
(ECF No. 334). After careful consideration, the Court GRANTS Mr. Robinson’s
motions.
Mr. Robinson requests leave to file an updated affidavit of his expert, Dr.
Seybold outside of the time provided by section 145.682 of the Minnesota Statutes.
The Minnesota Supreme Court has held that an extension to serve an affidavit may be
granted if the proponent demonstrates excusable neglect. Stern v. Dill, 442 N.W.2d
322, 324 (Minn. 1989). To demonstrate excusable neglect, the plaintiff must show
four factors: (1) the plaintiff has a reasonable case on the merits; (2) a reasonable
excuse for the failure to meet the statutory time limits exists; (3) the plaintiff has
proceeded with due diligence after notice of statutory time limits; and (4) there is no
risk of substantial prejudice to the defendants. Bellecourt v. United States, 784 F. Supp.
623, 636–37 (D. Minn. 1992). Defendant Dr. Dannewitz opposes Mr. Robinson’s
request, arguing that Mr. Robinson cannot demonstrate that he has a reasonable case
on the merits based on Dr. Seybold’s affidavit, with respect to the case against Dr.
Dannewitz only.
The Court disagrees. Though Dr. Dannewitz has provided arguments as to

CASE 0:17-cv-00437-DSD-KMM Document 340 Filed 05/06/20 Page 2 of 3

why Dr. Seybold’s affidavit does not support a reasonable case on the merits as to
him, the Court is mindful that there are additional defendants in this case to whom
the affidavit also applies. These defendants have not opposed Mr. Robinson’s
motion. It would be impractical under these circumstances to permit a late-filed
affidavit to be used in a medical malpractice case against some defendants, but not
one, and instead require Mr. Robinson to use the older affidavit against Dr.
Dannewitz.
The Court further determines that the rest of the requirements of excusable
neglect are demonstrated here. Mr. Robinson’s incarceration and reliance on mail
service instead of electronic communications makes compliance with procedural
deadlines nearly impossible. And he has proceeded with diligence, attempting to
pursue this update to Dr. Seybold’s affidavit despite the time delays. Finally, the
Court finds no risk of substantial prejudice against the defendants. As a practical
matter, Mr. Robinson has already filed the affidavit. Though the Court would prefer
that Mr. Robinson wait for Court permission on such matters, in this case the fact
that the affidavit was available and readily filed belies a finding of substantial
prejudice. And Dr. Dannewitz has already indicated his intention of responding to
the affidavit in his reply briefing to summary judgment. This small delay caused by
the late-filed affidavit does not prevent the defendants from robustly defending
themselves. Accordingly, the Court will grant Mr. Robinson’s motion and recognize
the late-filed affidavit.
In a related housekeeping manner, Mr. Robinson requested leave to reply to
Dr. Dannewitz’s opposition. (ECF No. 326, see ECF Nos. 310, 314.) A reply is not
automatically granted when briefing a nondispositive motion, but the Court may
permit a party to file a reply when appropriate. Local Rule 7.1(b)(3). Here, the Court
did not need additional briefing in order to make its decision on the motion.
Therefore, Mr. Robinson’s motion for a reply (ECF No. 326) is DENIED as moot.
Finally, Mr. Robinson has moved to enlarge the number of discovery requests.
(ECF No. 334.) The defendants have not opposed this request, and it appears that
Mr. Robinson has already served the additional requests on defendants. Because there
is no opposition, and little risk of undue delay or prejudice, the Court GRANTS Mr.
Robinson’s motion to enlarge the number of discovery requests.

2

CASE 0:17-cv-00437-DSD-KMM Document 340 Filed 05/06/20 Page 3 of 3

Accordingly, IT IS HEREBY ORDERED THAT:
1.
2.
3.

Mr. Robinson’s Motion for Extension of Time to Correct Mr. Robinson’s
Expert’s Affidavit (ECF No. 310) is GRANTED.
Mr. Robinson’s Motion for Leave to Reply to Dannewtiz Opposition (ECF
No. 326) is DENIED.
Mr. Robinson’s Motion to Enlarge the Number of Discovery Requests (ECF
No. 334) is GRANTED.

.
Dated: May 6, 2020

s/ Katherine Menendez
Katherine Menendez
United States Magistrate Judge

3