McMiller v. City of Omaha et al
ORDER denying Plaintiff's Motions to Extend 52 and 53 . The deadlines stated herein will govern the remainder of this case. 3-day Jury Trial set for 10/23/2017 at 08:30 AM in Courtroom 3, Roman L. Hruska Federal Courthouse, 111 South 18th Pla za, Omaha, NE before Senior Judge Joseph F. Bataillon. Pretrial Conference set for 10/10/2017 at 10:00 AM in Chambers before Magistrate Judge Susan M. Bazis. Ordered by Magistrate Judge Susan M. Bazis. (JAB) Modified on 8/4/2017 to correct name of pretrial judge. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FRED J. HIYKEL,
This matter is before the Court on Plaintiff’s Motion for Enlargement of Time for
Discovery and Limited Depositions (Filing No. 52) and Amended Motion for Enlargement of
Time for Discovery and Limited Depositions (Filing No. 53). The motions will be denied.
This action was removed from state court on July 14, 2015. (Filing No. 1.) Plaintiff’s
original counsel was permitted to withdraw from the case on August 1, 2016 (Filing No. 25), and
Plaintiff’s current counsel entered a formal appearance on September 21, 2016. (Filing No. 28.)
Following a planning conference with counsel for the parties on October 12, 2016, the Court
entered a progression order (Filing No. 31), setting Plaintiff’s expert witness disclosure deadline
as December 1, 2016. The deposition deadline was set as March 31, 2017, and written discovery
was to be completed in advance of the deposition deadline. Discovery motions were to be filed
no later than the deposition deadline. The summary judgment deadline was set as February 13,
2017. However, this deadline was later extended to March 31, 2017. (Filing No. 36.)
Defendant served requests for admissions and requests for production of documents upon
Plaintiff on February 9, 2017.
(Filing No. 43-3.)
Plaintiff served discovery requests on
Defendant on May 2, 2017. (Filing No. 42.) On or about May 15, 2017, Plaintiff served answers
to Defendant’s discovery requests. (Filing No. 58.) Defendant served responses to Plaintiff’s
discovery requests on June 2, 2017, objecting on the grounds that the requests were served after
the close of written discovery. (Filing Nos. 47, 54-1.)
On June 9, 2017, Plaintiff filed a motion requesting that the time for “providing and
answer[ing]” discovery be extended, and that the deposition deadline be extended to allow
Plaintiff to depose Officer Fred Hiykel and Police Chief Todd Schmaderer. (Filing No. 52.)
Plaintiff filed an amended motion requesting this relief on June 12, 2017. (Filing No. 53.)
Notably, Plaintiff’s brief offered in support of her Amended Motion for Enlargement of Time for
Discovery and Limited Depositions also requests that the expert disclosure deadline be extended,
but this request is not included in either motion. (Filing No. 54.)
On June 15, 2017, a telephone conference was held between counsel for the parties and
the Court to discuss Plaintiff’s motions. During the conference, Defendant’s counsel informed
the Court that Defendant opposed the motions and wanted to submit a brief in opposition. To
accommodate the filing of a brief and a ruling on the motions, the pretrial conference and trial
were continued. The Court advised the parties that the pretrial conference and trial would be
rescheduled following the ruling on Plaintiff’s motions.
Defendant argues that Plaintiff’s motions should be denied because Plaintiff has not been
diligent in meeting the scheduling order deadlines. The Court agrees.
Plaintiff has requested that the Court modify the progression order by extending the
written discovery, deposition, and expert disclosure deadlines. Under the Federal Rules of Civil
Procedure, a progression schedule “may be modified only for good cause.” Fed. R. Civ. P.
16(b)(4) (emphasis added). “In demonstrating good cause, the moving party must establish that
the scheduling deadlines cannot be met despite a party’s diligent efforts.” Thorn v. Blue Cross
and Blue Shield of Florida, Inc., 192 F.R.D. 308, 309 (M.D. Fla. 2000) (internal quotation
omitted). However, when a motion to modify is made after the deadline set 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)(B). “[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) (internal quotation omitted).
Plaintiff has not shown good cause for modification of the progression order or that she
has acted diligently in meeting scheduling deadlines. The deadline for completing depositions
and written discovery was March 31, 2017. The deadline for filing discovery motions was also
March 31, 2017. It appears that Plaintiff did not even attempt to serve any written discovery
upon Defendant until after the written discovery deadline had expired.
(Filing No. 42.)
Although Defendant filed a summary judgment motion, he did not do so until March 31, 2017,
which was the deposition and discovery deadline. (Filing No. 37.) Still, in opposition to the
summary judgment motion, Plaintiff’s counsel represented that he was “ready to move this case
to trial.” (Filing No. 43-3.) However, now counsel states he requires additional time to conduct
discovery, including the deposition of Fred Hiykel, the named defendant. Counsel has provided
no legitimate explanation for his failure to seek this discovery at an earlier time, nor has he
identified any new circumstances warranting an extension.
The most Plaintiff’s counsel offers to support his extension request is the fact that he did
not enter a formal appearance in this case until September 21, 2016.
represents that prior to that time, no discovery had been conducted, and he had to rebuild the
case file. However, Plaintiff counsel participated in the planning conference at which the
discovery, deposition, and expert disclosure deadlines were seemingly discussed. (Filing No.
31.) Also, counsel could have requested deadline extensions well in advance of the expiration of
those deadlines, yet he did not do so. Plaintiff’s counsel has offered no explanation for this
failure. Notably, Plaintiff’s counsel did not even reply to Defendant’s opposition to these
In short, Plaintiff has not shown good cause supporting modification of the progression
order, let alone excusable neglect. Plaintiff has not demonstrated that she (or her counsel) acted
diligently to meet scheduling deadlines or that any recent development warrants an extension of
those deadlines. Additionally, it must be noted that reopening discovery at this late stage would
unduly prejudice Defendant. This is especially true with respect to Plaintiff’s request for an
extension of the expert disclosure deadline. Allowing Plaintiff to disclose expert witnesses at
this juncture—eight months after the expiration of the deadline—would likely create a host of
additional discovery that would further delay the trial of this matter.
IT IS ORDERED that Plaintiff’s Motion for Enlargement of Time for Discovery and
Limited Depositions (Filing No. 52) and Amended Motion for Enlargement of Time for
Discovery and Limited Depositions (Filing No. 53) are denied. The following deadlines will
govern the remainder of this case:
Pretrial Disclosures - Pursuant to Fed. R. Civ. P. 26(a)(3), each party shall serve
opposing counsel and file a redacted version as applicable with the following
information regarding the evidence it may present at trial other than solely for
impeachment purposes as soon as practicable but not later than the date specified:
a. Nonexpert Witnesses - On or before September 25, 2017: The name,
address and telephone number1 of each witness, separately identifying those
whom the party expects to present and those whom the party may call if the
b. Deposition Testimony and Discovery - The designation of discovery
testimony and discovery responses intended to be utilized at trial is not
required at this time.
c. Trial Exhibits - On or before September 25, 2017: A list of all exhibits it
expects to offer by providing a numbered listing and permitting examination
of such exhibits, designating on the list those exhibits it may offer only if the
d. Waiver of Objections - Any and all objections to the use of the witnesses,
deposition testimony, discovery responses, or exhibits disclosed pursuant to
the above subparagraphs, including any objection pursuant to Fed. R. Civ. P.
32(a) that a deponent is available to testify at the trial, shall be made a part of
the pretrial order. Failure to list objections (except those under Fed. R. Evid.
402 and 403) is a waiver of such objections, unless excused by the Court for
good cause shown.
In accordance with the E-Government Act, counsel shall, on witness lists, exhibits, and
other disclosures and/or documents filed with the Court, redact Social Security numbers, home
addresses, telephone numbers, and other personally identifying information of witnesses, but
shall serve an unredacted version on opposing parties. See NECivR 5.3.
Motions in limine (other than those challenging the admissibility of expert
testimony at trial under Fed. R. Evid. 702, see Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999), and Daubert v. Merrell-Dow Pharmaceuticals,
509 U.S. 579 (1993)) shall be filed on or before October 3, 2017.
The Final Pretrial Conference with the assigned magistrate judge is set for
October 10, 2017, at 10:00 a.m., in chambers, 111 South 18th Plaza, Suite 2271,
Roman L. Hruska United States Courthouse, Omaha, Nebraska. The final pretrial
conference shall be attended by lead counsel for represented parties. Counsel
shall complete prior to the pretrial conference, all items as directed in NECivR
16.2.2 By the time of the pretrial conference, full preparation for trial shall have
been made so that trial may begin immediately thereafter. The pretrial conference
will include a discussion of settlement, and counsel shall be prepared through
investigation, discovery and communication with clients and insurers, if any, to
discuss fully the subject of settlement, including realistic expectations about
liability, obstacles to agreement, offers made, and offers which can be made at the
conference. Counsel shall be prepared to make additional offers or proposals for
settlement in behalf of their clients at the pretrial conference, and counsel shall be
prepared to make or opine on recommendations for further negotiations and
Mediation and Settlement:
a. If the parties intend to mediate their dispute, notice of the mediation shall be
given to the staff of the assigned magistrate judge's office. The filing of a
mediation reference order will terminate pending motions, without prejudice
to refiling. If the mediation is not successful, the moving party may reinstate
such a motion by filing a written notice to that effect, and the other parties
may respond in accordance with the local rules, regarding the date of the
notice as reinstating the response/reply time that remained as of the date the
mediation reference order was filed.
b. Not later than two weeks prior to trial, plaintiff or plaintiff's counsel shall
serve on Defendant or Defendant's counsel a written, updated settlement
proposal. Defendant or Defendant's counsel shall respond in writing to such
proposal not later than one week before trial.
c. Notice of settlement shall be given to the trial judge's office as soon as
practicable but in any event in time to avoid summoning a jury. If a case
settles and notice of settlement is not given in sufficient time to avoid
summoning a jury, assessment of jury costs may – and normally will – be
made against a party and/or counsel for one or more of the parties. For
All personal information should be redacted from the public version of the order and/or
attachments filed with the Clerk. See NECivR 5.3.
purposes of this paragraph, a jury is considered summoned for a trial at noon
the business day prior to the designated date of trial.
A three day jury trial is set to commence on October 23, 2017, in Omaha,
Nebraska, before the Honorable Joseph F. Bataillon, Senior United States District
Judge. Unless otherwise ordered, jury selection shall be at the commencement of
Dated this 4th day of August, 2017.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
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