Martin v. Sommerdorf

Filing 39

ORDER granting 34 MOTION Leave to Amend Expert Designations by Glen Martin, extending pretrial deadlines, and continuing trial. Plaintiff(s) Expert Witness Disclosures and Reports due by 12/7/2018. Defendant(s) Expert Witness Disclosures and Reports due by 2/15/2019. Dispositive Motions due by 4/30/2019. Final Pretrial Conference REset for 8/5/2019 at 2:00 PM by telephone before Magistrate Judge Charles S. Miller, Jr. Jury Trial REset for 8/19/2019 at 9:00 AM in Bismarck Courtroom 1 before Chief Judge Daniel L. Hovland (5 days). By Magistrate Judge Charles S. Miller, Jr. (FPT and jury trial previously set for 1/22/2019 and 2/06/2019, respectively). (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Glen Martin,
Plaintiff,
vs.
Gerald Sommerdorf,
Defendant.

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ORDER

Case No. 1:17-cv-139

Before the court is a “Motion for Leave to Amend Expert Designations” filed by plaintiff on
October 24, 2018. For the reasons set forth below, the motion is granted.
I.

BACKGROUND
This action arises out of a two-vehicle collision that occurred on June 23, 2014, on the exit

ramp near mile marker 59 on Interstate 94. According to plaintiff, he was stopped at a stop sign,
waiting to make a right turn. Defendant attempted to pass through the stop sign and, failing to take
notice of the plaintiff, struck plaintiff’s vehicle from behind.
On October 17, 2017, the court issued a scheduling order that provided in relevant part that
plaintiff’s and defendant’s expert disclosures were due by September 11 and October 12, 2018,
respectively. (Doc. No. 14).
The parties served each other with their respective expert designations in accordance with
the court’s scheduling order. Thereafter, on October 24, 2018, plaintiff filed a motion for leave to
amend his expert disclosures to include a trailer hitch expert from whom he obtained a report after
the expert disclosures deadlines had lapsed. He avers this expert’s testimony is vital to his case and,
given the present posture of this case, his late designation should pose appreciable prejudice to

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defendant.
Defendant filed a response in opposition to plaintiff’s motion on November 7, 2018. He
asserts that plaintiff offered no reasonable explanation for his delay in locating the trailer hitch
expert and thus failed to establish good cause for retroactively extending his expert disclosure
deadline.
II.

DISCUSSION
The court starts, as it must, with the guidance provided by the Eighth Circuit with respect

to the modification of scheduling/discovery orders. In Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
748 (8th Cir. 2006), the Eighth Circuit had this to say:
Adherence to progression order deadlines is critical to achieving the primary
goal of the judiciary: “to serve the just, speedy, and inexpensive determination of
every action.” Fed.R.Civ.P. 1; see also Bradford v. DANA Corp., 249 F.3d 807, 809
(8th Cir. 2001) (“As a vehicle designed to streamline the flow of litigation through
our crowded dockets, we do not take case management orders lightly, and will
enforce them.”) (citation omitted). Accordingly, the district court has broad
discretion in establishing and enforcing the deadlines. Fed.R.Civ.P. 16, 37. To
modify a progression order, a party must show good cause for the modification.
Bradford, 249 F.3d at 809. To establish good cause, a party must show its diligence
in attempting to meet the progression order. Id. (citation omitted). A district court
may also consider the existence or degree of prejudice to the party opposing the
modification. Id.
Id. at 759.
Given the nature of plaintiff’s proposed disclosure and in light of the present posture of this
case, the court finds there is good cause to extend the deadlines for expert disclosures. First, the
trailer hitch expert’s opinion is a partial rebuttal to defendant’s expert’s opinion (which was
disclosed on October 12, 2018) that the forces generated in the collision could not have been so great
given the apparent lack of damage to defendant’s vehicle. Thus, the court is not persuaded that there
has been an utter lack of diligence on plaintiff’s part. Second, the pretrial deadlines need to be
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adjusted for other reasons. For example, defendant has filed a motion to compel independent
physical and mental health examinations of plaintiff.1 In the event that the motion is granted in
whole or in part, defendant will require time to arrange for examinations and the parties will
thereafter require time to digest the results (and plaintiff some time to respond). Third, defendant
will not be unduly prejudiced by extending the expert disclosure deadlines since the court intends
to afford him ample time for rebuttal.
III.

CONCLUSION
Plaintiff’s Motion for Leave to Amend Expert Designations (Doc. No. 34) is GRANTED.

Plaintiff shall have until December 7, 2018, to supplement his expert disclosures.2 Defendant shall
have until February 15, 2019, to supplement his expert disclosures or otherwise disclose a rebuttal
opinion (from a either his existing expert or new expert).
Additionally, pursuant to its discussion with the parties during the status conference held on
November 26, 2018, the court further ORDERS:
1.

The parties shall have until April 30, 2019, to file dispostive motions (summary
judgment as to all or part of the case).

2.

The final pretrial conference set for January 22, 2019, shall be rescheduled for
August 5, 2019, at 2:00 p.m. by telephone before the magistrate judge. The court
shall initiate the conference call.

3.

The jury trial set for February 6, 2019, shall be rescheduled for August 19, 2019, at

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A mental health evaluation is highly unusual for this type case but may be justified. The court will address
this issue in a subsequent order.
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The court advised the parties during the status conference on November 26, 2018, that would extend
plaintiff’s deadline until November 30, 2018. However, upon further reflection, the court shall extend the deadline an
additional week.

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9:00 a.m. in Bismarck before Chief Judge Hovland (5 days, courtroom #1).
Dated this 28th day of November, 2018.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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