DiLuzio v. The Village of Yorkville, Ohio et al

Filing 143

OPINION AND ORDER granting 138 MOTION for Leave to Depose Plaintiff's Expert, Eric R. Drozdowski, P.E.; granting 139 MOTION for Leave to Depose Eric R. Drozdowski, P.E. Signed by Magistrate Judge Norah McCann King on 3/6/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANGELO L. DiLUZIO,
Plaintiff,
Civil Action 2:11-cv-1102
Judge Watson
Magistrate Judge King

vs.
THE VILLAGE OF YORKVILLE,
OHIO, et al.,
Defendants.

OPINION AND ORDER
This is a civil rights action under 42 U.S.C. § 1983 based, in
part, on events related to a fire at, and the subsequent demolition
of, the southernmost building in a three-building structure owned by
plaintiff in Yorkville, Ohio.

This matter is now before the Court on

defendants’ motions to depose plaintiff’s expert.

Motion of

Defendants the Village of Yorkville, Ohio, Mayor John “Jake” DeFilippo
and Fire Chief Kevin Klubert for Leave to Depose Plaintiff’s Expert,
Eric R. Drozdowski, P.E., Doc. No. 138; Motion of Defendant Greg
Nemeth for Leave to Depose Eric R. Drozdowski, P.E., Doc. No. 139
(“Motions for Leave to Depose”).
The Court issued a scheduling order in this action requiring the
production of primary expert reports by January 23, 2013 and of
rebuttal expert reports by February 25, 2013, and the completion of
all discovery by March 20, 2013.
15; Order, Doc. No. 32.

Preliminary Pretrial Order, Doc. No.

Plaintiff produced the rebuttal expert report

of Eric Drozdowski on March 12, 2013, i.e., 15 days after the deadline
established by the Court. Defendant Nemeth moved to strike the report,

Doc. No. 45, and plaintiff filed a motion for leave to disclose the
report, Doc. No. 53.

The Court granted plaintiff’s motion and denied

defendant’s motion to strike on July 3, 2013, concluding that the
expert was in fact a rebuttal expert, that plaintiff had established
good cause for the late production, and that defendant would not be
unduly prejudiced by the late production.
117.

Opinion and Order, Doc. No.

See also Opinion and Order, Doc. No. 137 (overruling defendant’s

objections).

Defendants thereafter filed the Motions for Leave to

Depose.
Plaintiff opposes the Motions for Leave to Depose, arguing that
any such deposition should await resolution of the pending motions for
summary judgment (and any related appeals therefrom);

to permit the

deposition now, plaintiff argues, would merely serve to unnecessarily
delay the case.

Plaintiff’s Memorandum in Opposition to Motion of

Defendants for Leave to Depose Plaintiff’s Expert Eric R. Drozdowski
(“Plaintiff’s Response”), Doc. No. 140.

According to plaintiff, the

costs associated with the requested deposition and the resulting delay
in this action will unfairly prejudice plaintiff, considering that
“[t]he future course of this litigation may render the deposition of
Mr. Drozdowski completely unnecessary.”

Id. at pp. 2-3.

Rule 16(b) of the Federal Rules of Civil Procedure requires that
the Court, in each civil action not exempt from the operation of the
rule, enter a scheduling order that, inter alia, limits the time to
complete discovery.

Fed. R. Civ. P. 16(b)(3)(A).

The rule further

provides that “[a] schedule may be modified only for good cause and
with the judge’s consent.”

Fed. R. Civ. P. 16(b)(4).

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See also S.D.

Ohio Civ. R. 16.2 (“[T]he Magistrate Judge is empowered
to . . . modify scheduling orders upon a showing of good cause.”).
“‘The primary measure of Rule 16’s ‘good cause’ standard is the moving
party’s diligence in attempting to meet the case management order’s
requirements.’”

Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.

2002) (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir.
2001)).

“A district court should also consider possible prejudice to

the party opposing the modification.”

Andretti v. Borla Performance

Indus., Inc., 426 F.3d 824, 830 (6th Cir. 2005) (citing Inge, 281 F.3d
at 625).

The focus is, however, “primarily upon the diligence of the

movant; the absence of prejudice to the opposing party is not
equivalent to a showing of good cause.”

Ortiz v. Karnes, 2:06-cv-562,

2010 WL 2991501, at *1 (S.D. Ohio July 26, 2010) (citing Tschantz v.
McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995)).

Whether to grant leave

under Rule 16(b) falls within the district court’s discretion.

Leary

v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003).
In the case presently before the Court, defendants seek to depose
plaintiff’s rebuttal expert Eric Drozdowski beyond the date
established in the Court’s scheduling order.

As noted supra,

plaintiff was late in disclosing Drozdowski’s report and defendant
Nemeth filed a motion to strike the report on this basis.

Defendants

The Village of Yorkville, Ohio, Mayor John DeFilippo, and Fire Chief
Klubert (collectively the “Village defendants”) sought Drozdowski’s
deposition the day after the report was produced. See Doc. No. 138-1
(March 13, 2013 email from the Village defendants’ counsel: “I agree
with [defendant Nemeth’s counsel] that the Drozdowski report is
untimely and not a ‘rebuttal’ report, but a primary report.
Nevertheless, in the event the report and Drozdowski are not excluded

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by the Court, please advise as to when we can depose him.”).

See also

Doc. No. 138-3 (March 26, 2013 email from the Village defendants’
counsel regarding deposing Drozdowski).

However, plaintiff’s counsel

rejected the request, reasoning that it “would not be reasonable or
appropriate” to depose Drozdowski at that time, in light of
defendant’s motion to strike and “the significant expense involved in
paying Mr. Drozdowski’s firm for his time, and the cost of a court
reporter, as well as the time involved for four attorneys to prepare
for and attend a deposition of an expert witness.”

See Doc. No. 138-4

(March 29, 2013 email from plaintiff’s counsel).
As noted supra, plaintiff was granted leave to produce the
Drozdowski report on July 3, 2013.

Opinion and Order, Doc. No. 117.

Defendant Nemeth’s objections to that decision, Doc. No. 119, were
overruled on December 19, 2013.

Opinion and Order, Doc. No. 137.

Four days later, on December 23, 2013, defendants again requested
Drozdowski’s deposition, Doc. No. 138-5 (December 23, 2013 email from
the Village defendants’ counsel regarding deposing Drozdowski); Doc.
No. 138-6 (December 26, 2013 email from the Village defendants’
counsel regarding deposing Drozdowski), and filed the Motions for
Leave to Depose on December 30 and December 31, 2013.
This history demonstrates that defendants have been diligent in
their attempts to depose Drozdowski.
Having determined that defendants were diligent in seeking to
depose Drozdowski, the Court must now consider the issue of prejudice
to plaintiff.

See Andretti, 426 F.3d at 830.

As noted supra,

plaintiff argues that the cost of deposing Drozdowski and the
resulting delay in this action will unfairly prejudice plaintiff,
considering that “[t]he future course of this litigation may render

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the deposition of Mr. Drozdowski completely unnecessary.”
Response, pp. 2-3.

Plaintiff’s

Plaintiff’s arguments are not well taken.

Plaintiff will not be unduly prejudiced by the costs associated
with a deposition of his expert.

Had the report been timely produced,

plaintiff should certainly have expected to bear those costs prior to
the discovery completion date.

More significant is the fact that

plaintiff relies on Drozdowski’s report and affidavit in support of
his motion for partial summary judgment.

See Plaintiff’s Reply

Memorandum in Support of Motion for Partial Summary Judgment – the
Procedural Due Process Claim, Doc. No. 109.

Any delay resulting from

the requested deposition is substantially outweighed by the prejudice
to defendants should the Court consider plaintiff’s motion for partial
summary judgment without affording defendants the opportunity to
depose the expert upon whom plaintiff relies in connection with that
motion.
Nevertheless, the Court is not unsympathetic to plaintiff’s
concerns about cost and delay.
plaintiff a choice:

Accordingly, the Court will afford

the Court will not permit the deposition of

Drozdowski at this juncture should plaintiff agree to withdraw his
reliance on Drozdowski’s report in connection with plaintiff’s motion
for partial summary judgment.

Otherwise, the Court will grant

defendants leave to depose Drozdowski and will consider the
circumstances under which defendants will be permitted to address
Drozdowski’s report in connection with plaintiff’s motion for partial
summary judgment on his procedural due process claim.
Plaintiff may have until March 13, 2014, in which to advise the
Court and defendants whether he agrees to withdraw his reliance on
Drozdowski’s report in connection with plaintiff’s motion for partial

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summary judgment.

March 6, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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