Quilez-Velar et al v. Ox Bodies, Inc. et al
Filing
313
MEMORANDUM AND ORDER granting 299 Motion to Strike; noting 309 Informative Motion. Signed by US Magistrate Judge Silvia Carreno-Coll on 5/7/2014. (NBB)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
BERARDO QUILEZ-VELAR, ET
AL.,
Plaintiffs,
v.
OX BODIES, INC., ET AL.,
Defendants / Third-Party
Plaintiffs
CIV. NO.: 12-1780(GAG/SCC)
v.
MUNICIPALITY OF SAN JUAN,
ET AL.,
Third-Party Defendants.
MEMORANDUM AND ORDER
In October 2013, the undersigned held a further scheduling
conference. See Docket No. 219. Pursuant to that conference,
the expert reports of third parties were due by February 10,
QUILEZ-VELAR v. OX BODIES
Page 2
2014, expert depositions were set to conclude by February 28,
2014, and all discovery was to conclude by April 1, 2014. See
id. On February 7, 2014, third-party defendants the Municipality of San Juan and Integrand Assurance Co. requested a brief
extension of time to file their expert’s report, Docket No. 252;
that request was granted, Docket No. 253, and the report was
filed on February 14, 2014, see Docket No. 283, at 2. After the
report was served, Defendants Ox Bodies and Truck Bodies
began to request a date for the expert’s deposition, but the
Municipality did not respond until after Defendants threatened
to file a motion to strike. See id. On March 17, well after the
date for expert depositions had passed, the Municipality
provided a single date on which the expert could be deposed:
April 5, 2014. See id. at 3. Notably, and as Defendants pointed
out to the Municipality, that date was after the Court’s discovery cut-off date. See id. Defendants therefore moved to strike
the Municipality’s expert. See id.
On April 7, 2014, we denied the motion to strike, but in the
alternative we granted a brief extension of time—until April 21,
2014—in which the parties could take the Municipality’s
expert’s deposition. Docket No. 285. We stated clearly that this
was a final extension, and we instructed the parties to work
QUILEZ-VELAR v. OX BODIES
Page 3
together to schedule the deposition within the time provided.
Id. We furthermore warned the parties that a failure to work in
good faith to schedule the deposition would result in sanctions
on one or both parties. Id.
Apparently, the April 21 deadline came and went without
the expert’s deposition being taken, and Defendants have once
again moved to strike the expert. See Docket No. 299. According to Defendants, moreover, the fault for this failure is the
Municipality’s alone, and in support of this proposition they
have filed a history of the parties’ email correspondence. That
correspondence reveals that the day of our Order granting an
extension of time, Defendants requested from the Municipality
dates for the deposition, and the Municipality did not respond,
nor did it respond to a follow-up the next day. See Docket No.
299-1, at 8. On April 10, 2014, counsel for Defendants sent a
third message, adding that it was “imperative that we speak
today.” Id. Counsel for the Municipality responded that he had
asked the expert for dates; he promised to reply later that day.
Id. Counsel for the municipality did not respond, however, and
so the next day counsel for Defendants followed up yet again.
Id. at 7. Later on April 11, counsel for the Municipality forwarded Defendants’ counsel an email from the expert’s assistant
QUILEZ-VELAR v. OX BODIES
Page 4
which said that the expert was “not available between now and
April 21st to travel to Puerto Rico for the deposition.” Id. at
4–5. Counsel for Defendants promptly—within twenty
minutes—responded with an offer “to go to him.” Id. at 4.
Three days later, however, the Municipality had not responded, and Defendants’ counsel wrote again, noting that
depositions had been held in this case all over the United
States, and that Defendants had never made it a requirement
that the deposition be held in Puerto Rico. Id. Another email
the next day memorialized a phone call between the parties’
counsel wherein it was decided that the Municipality’s counsel
would finally—four days after Defendants asked him to do
so—request a date to depose the expert at a more convenient
location. Id. at 3. On April 17, yet two days later, Defendants’
counsel once again emailed to say that he had heard nothing
from the Municipality. Id. The Municipality responded later
that afternoon, but it did not provide a date within the period
ordered by the Court. Id.
The Municipality’s opposition to the motion to strike
focuses almost exclusively on events that preceded our April 7
Order. See Docket No. 308. In essence, it hangs its hat on the
fact that it offered a single deposition date—April 5, 2014—wh-
QUILEZ-VELAR v. OX BODIES
Page 5
ich was untimely at the time it was offered. See id. at 2. The
Municipality’s only other response is that the expert is available on May 16, 2014, a date that is nearly a month beyond the
deadline we explicitly called final. See id. The Municipality
makes no effort at all to defend its failure to work diligently
with Defendants to comply with our April 7 Order.1 Indeed, it
does not even mention the fact of the deadline that Order set
when it offers to have its expert deposed in mid-May 2014.2
On this record, we are forced to conclude that the Munici-
1.
The Municipality does state conclusorily that it has “diligently kept
communications” with Defendants’ counsel, see Docket No. 308, at 3,
but that statement is belied by the evidence offered by Defendants.
Furthermore, we forcefully reject the Municipality’s suggestion that
Defendants are “conveniently trying to avoid [the Municipality] from
offering its most important evidence.” Id. To the contrary, the
correspondence between the parties makes plain that Defendants
understood the seriousness of our deadline and were willing to
inconvenience themselves in order to comply with it; the Municipality,
meanwhile, seems to still be treating the deadline as something that can
be ignored at its convenience.
2.
At 5:45 p.m. on April 6, 2014, the Municipality filed a motion stating
that if it did not receive by 6:00 p.m. that same day a confirmation of
Defendants’ intent to depose its expert on May 16, the expert would not
be available that day. See Docket No. 309, at 2. Presumably, then, the
extension for which the Municipality is implicitly requesting is in fact
much longer than a month.
QUILEZ-VELAR v. OX BODIES
Page 6
pality has failed to work in good faith to comply with our firm
deadline. We are reluctant to strike a party’s expert in a case as
serious as this, but our deadline was firm and the threat of
sanctions plain. Accordingly, we GRANT Defendants’ motion
and STRIKE the Municipality’s and Integrand’s expert witness.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 7th day of May, 2014.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?