Lossiah v. United States of America

Filing 43

ORDER GRANTING 40 MOTION to Continue Docket Call/Trial, the pretrial deadlines in this case are hereby AMENDED as follows: The discovery period is re-opened, and the parties shall have until 5/17/2021 to complete discovery; The parties shall have until 5/31/2021 to complete mediation; and The trial of this matter is CONTINUED to the 9/13/2021 mixed trial term. Signed by Chief Judge Martin Reidinger on 2/10/2021. (rhf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:18-cv-00134-MR-DSC

CANDY LOSSIAH, Administratrix of
the Estate of ANTHONY EDWARD
LOSSIAH,

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Plaintiff,
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vs.
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UNITED STATES OF AMERICA,
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Defendant.
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_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for
Modification of Deadlines in Court’s Pretrial Order and Continuance of Trial
Date [Doc. 40]. The Government opposes the Plaintiff’s Motion in part. ]Doc.
41].
I.

PROCEDURAL BACKGROUND
The Plaintiff filed this medical malpractice action under the Federal Tort

Claims Act on May 16, 2018. [Doc. 18]. In May 2019, the Court entered a
Pretrial Order and Case Management Plan, directing discovery to be
completed by May 15, 2020 and mediation to be completed by June 1, 2020.
[Doc. 27]. The Court subsequently granted the parties’ request to extend the
discovery deadline until September 1, 2020 [Text-Only Order entered May

18, 2020] and the mediation deadline until February 11, 2021 [Text-Only
Order entered Dec. 18, 2020]. This matter is scheduled for trial during the
Court’s March 8, 2021 mixed term. [Id.].
On January 29, 2021, the Plaintiff filed the present motion, seeking to
re-open the discovery period and to continue the trial date. [Doc. 40]. For
grounds, counsel states that, due to health issues involving the Plaintiff’s
counsel and his spouse,1 the Plaintiff was unable to complete discovery as
intended.

Counsel further states that, until such discovery has been

completed, the Plaintiff is unable to engage in meaningful mediation by the
current deadline of February 11, 2021. [Doc. 40].
The Government does not oppose the Plaintiff’s requests to extend the
mediation deadline and to continue the trial date until sometime over the
summer. While sympathetic to the Plaintiff’s counsel health issues, the
Government opposes the request to re-open discovery, arguing that the
Plaintiff did not engage in any meaningful discovery before any health issues
arose, and that re-opening discovery at this late date would be highly
prejudicial to the Government. [Doc. 41].

The Plaintiff’s counsel shared the details of these health issues in a letter to the Court,
which was copied to the Government’s counsel.
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II.

DISCUSSION
Rule 16 of the Federal Rules of Civil Procedure provides that a

scheduling order “may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). In determining whether there is “good
cause” within the meaning of Rule 16(b), the Court should consider the
timeliness of the party’s request, the reasons for its tardiness, and the danger
of unfair prejudice to the non-moving party. See Nguyen v. Jones, No. 1:19cv-00337-MR, 2020 WL 7264465, at *2 (W.D.N.C. Dec. 10, 2020). “The
primary consideration is the diligence of the moving party.” Id.
Here, the Court finds that the Plaintiff has established good cause for
his request, as his counsel’s health issues have essentially precluded him
from working on this case for the better part of six months. The Court further
finds that the Government will not be unduly prejudiced by a brief reopening
of the discovery period. In light of the brief nature of this extension, and the
difficulty of scheduling medical witnesses and experts in such a short period
of time, the Court encourages the parties to conduct any depositions
remotely where feasible.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion [Doc. 40] is
GRANTED, and the pretrial deadlines in this case are hereby AMENDED as
follows:
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(1)

The discovery period is re-opened, and the parties shall have
until May 17, 2021 to complete discovery;

(2)

The parties shall have until May 31, 2021 to complete mediation;
and

(3)

The trial of this matter is CONTINUED to the September 13, 2021
mixed trial term.

IT IS SO ORDERED.

Signed: February 10, 2021

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