Koven et al v. Hammond et al

Filing 61

ORDER - Plaintiff's Second Amended Motion for Leave to Serve Defendants, Out of Time, Statements Regarding Expert Witnesses (filing 58 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID SCOTT KOVEN SR., and
ROXANNE DIANE KOVEN,

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Plaintiffs,
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V.
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TODD HAMMOND, Plattsmouth
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Police Officer, LEROY LEWIS,
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Plattsmouth Police Officer, DAVID
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MURDOCH, Plattsmouth Police
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Chief, ROBERT SORENSON,
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Plattsmouth Police Officer, ANDREW )
KENAN, Plattsmouth Police
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Detective, and DAVID WALKER,
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Plattsmouth Police Detective,
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Defendants.
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8:10CV373

ORDER

On May 13, 2013, the Court entered an order denying Plaintiffs’ two motions
requesting leave to serve Defendants, out of time, their statements regarding expert witnesses
as required by Fed. R. Civ. P. 26(a)(2). (Filing 57.) In doing so, the Court found that
Plaintiffs’ explanations for failing to meet the March 29, 2013 expert disclosure deadline,
namely, the inability to locate an expert and the documents necessary to complete an expert
report, were insufficient to warrant modification of the Progression Order.
Plaintiffs have now filed another motion, again requesting leave to serve Defendants
their expert disclosures out of time. (Filing 58.) In support of this motion, Plaintiffs’ counsel
claims that excusable neglect for modification of the Progression Order exists because he
incorrectly calendared the expert disclosure deadline.
A progression schedule “may be modified only for good cause.” Fed. R. Civ. P.
16(b)(4). Moreover, when a motion to modify is made after the deadline established in the
progression order, the court may extend time “if the party failed to act because of excusable
neglect. Fed. R. Civ. P. 6(b)(1). “[T]he determination as to what sort of neglect is

considered excusable is an equitable one, taking account of all relevant circumstances
surrounding the party’s omission.” In re Harlow Fay, Inc., 993 F.2d 1351, 1352 (8th Cir.
1993) (quotation and citation omitted).
As previously held, Plaintiffs have offered insufficient justification for modifying the
Progression Order. Under the circumstances here, Plaintiffs’ counsel’s mistake in
calendaring the disclosure deadline does not rise to the level of excusable neglect necessary
to warrant modification. See Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th
Cir. 2000) (holding that failure to accurately calculate the thirty-day appeal period is not
excusable neglect); Institute for Policy Studies v. U.S.C.I.A., 246 F.R.D. 380 (D.D.C. 2007)
(finding that defendant’s mis-calendaring of a due date did not constitute excusable neglect);
Geiserman v. MacDonald, 893 F.2d 787 (5th Cir. 1990) (affirming decision to exclude expert
testimony based on plaintiff’s failure to timely designate experts where plaintiff’s failure to
timely designate resulted from a scheduling mistake in counsel’s office). Counsel offers no
explanation for the mistake in calendaring the due date. And, notably, it was only after the
Court denied Plaintiffs’ previous motions seeking leave to designate experts out of time that
counsel’s failure to correctly calendar the due date was brought to the Court’s attention.
Moreover, granting an extension at this time could result in the need to further modify the
Court’s final progression schedule, and potentially the November, 2013 trial date, so as to
allow time for Defendants to identify responsive expert witnesses. Additionally, from
Plaintiffs’ current motion, it appears that Plaintiffs are still having difficulty locating
documents to aid their expert witness in preparing his report. Plaintiffs have not shown that
further delay of this case is warranted.
Accordingly,
IT IS ORDERED that Plaintiff’s Second Amended Motion for Leave to Serve
Defendants, Out of Time, Statements Regarding Expert Witnesses (filing 58) is denied.
DATED May 31, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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