Dennis v. MediCredit, Inc

Filing 22

ORDER denying 17 Plaintiff's Motion to Extend Deadline for Expert Witness Disclosure. Signed by Magistrate Judge Norah McCann King on 5/6/15. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CYNTHIA DENNIS,
Plaintiff,
vs.

Civil Action 2:14-cv-640
Judge Frost
Magistrate Judge King

MEDICREDIT, INC.,
Defendant.
OPINION AND ORDER
Plaintiff Cynthia Dennis filed this action on June 26, 2014,
asserting claims under the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq., and the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227 et seq., alleging that defendant unlawfully
attempted to collect a consumer debt by placing automatic telephone
calls to plaintiff’s cellular telephone without plaintiff’s express
consent.

The Court issued a scheduling order on October 8, 2014,

requiring, inter alia, that discovery be completed by April 3, 2015,
and that “[d]iscovery-related motions must be filed prior to the
discovery completion date.”

Preliminary Pretrial Order, ECF 10.

The

scheduling order also noted, consistent with the parties’ request,
Rule 26(f) Report of Parties, ECF 9, that “[t]he parties will not use
expert testimony.”

Preliminary Pretrial Order, p. 2.

This matter is now before the Court on Plaintiff’s Motion to
Extend Deadline for Expert Witness Disclosure (“Plaintiff’s Motion”),
ECF 17.

Plaintiff seeks to “extend the deadline by which Plaintiff

must disclose her expert testimony to August 4, 2015.”

1

Id. at p. 3.

Plaintiff argues that she has until 90 days before trial to disclose
expert testimony because the Court did not set a deadline to designate
expert witnesses.

Id. at pp. 1-2.

Plaintiff “served on Defendant her

Amended 26(a) Initial Disclosures on January 9, 2015,” after she
determined that expert testimony would be necessary for her claims
under the TCPA.

Id.

Plaintiff “did not have an opportunity to

prepare [her] expert witness report prior to the close of discovery”
because defendant was late in producing technical specifications of
the dialing system used to call her.

Id.

In its response to Plaintiff’s Motion, defendant argues that
resolution of Plaintiff’s Motion is governed by Federal Rule of Civil
Procedure 16(b)(4), and that plaintiff failed to demonstrate “good
cause for failing to complete expert discovery, or timely seeking
relief from the existing deadlines.”

Defendant’s Memorandum in

Opposition to Plaintiff’s Motion to Extend Deadline for Expert Witness
Disclosure, ECF 18, pp. 2-3.

Defendant also notes that plaintiff’s

amended disclosure “does not name an expert, but simply sets forth
generically that she would use an expert.”

Id. at p. 2.

Plaintiff argues, for the first time in her reply brief,
Plaintiff’s Reply, ECF 20, that she has established good cause to
modify the scheduling order because defendant knew of plaintiff’s
intention to use expert testimony when she served her amended 26(a)
disclosures, but “initially voiced no such concern.”

Id. at p. 1.

Plaintiff also argues that her “inability to timely disclose her
expert witness is due entirely to Defendant’s delay in producing the
documentation necessary for the preparation of Plaintiff’s expert
report.”

Id. at p. 2.

Although plaintiff requested the technical

2

specifications of the phone dialer on October 8, 2014, defendant did
not produce the information until March 20, 2015.

Id.

Plaintiff’s Motion is governed by Federal Rule of Civil Procedure
16(b).

Rule 16(b) 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 and file motions.
Fed. R. Civ. P. 16(b)(3)(A).

The Court may also modify, inter alia,

the timing of disclosures under Rule 26(a) and the extent of
discovery.

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

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).

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.
v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003).

3

Leary

As noted supra, the Court issued a scheduling order on October 8,
2014, requiring that discovery be completed by April 3, 2015, and that
“[d]iscovery-related motions be filed prior to the discovery
completion date.”

Preliminary Pretrial Order, p. 2.

The scheduling

order also noted that “[t]he parties will not use expert testimony.”
Id. at p. 2.

Plaintiff’s argument that the scheduling order did not

govern the use of expert testimony is therefore without merit;
plaintiff’s request to submit expert testimony is governed by Rule
16(b).

Plaintiff’s Motion also seeks an extension of the scheduling

order to make discovery disclosures, which is governed by Rule 16(b).
Finally, the scheduling order required that discovery related motions,
such as Plaintiff’s Motion, be filed by April 3, 2015.

Even though

plaintiff did not seek leave to file her motion beyond the deadline
set in the scheduling order, her implicit request to do so is also
governed by Rule 16(b).
Plaintiff has failed to establish good cause to modify the
scheduling order; plaintiff has simply not demonstrated that she was
diligent in attempting to meet the requirements of the scheduling
order.

Plaintiff argues that she was unable to produce an expert

report during the discovery period because she did not receive
defendant’s discovery response regarding the “technical specifications
of the dialer” until March 20, 2015.

Plaintiff’s Reply, p. 2.

However, plaintiff apparently knew as early as January 9, 2015, that
she wanted to use expert testimony, but she waited until April 14,
2015, i.e., 11 days after the close of discovery, to file a motion to
extend the deadline to disclose her expert report.

Even if defendant

did not produce the requested discovery until March 20, 2015,

4

plaintiff still has not explained why she waited until after the close
of discovery to seek a modification of the pretrial schedule.

In

short, plaintiff has not demonstrated that she was diligent in seeking
leave to use expert testimony, in meeting the discovery completion
deadline, or in meeting the deadline for filing discovery related
motions.

Plaintiff’s Motion to Extend Deadline for Expert Witness

Disclosure, ECF 17, is therefore DENIED.

May 6, 2015

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

5