Cullison et al v. Hilti, Inc.

Filing 22

ORDER denying 14 Motion for Summary Judgment; granting 19 Motion to Extend Deadlines (Discovery due by 12/20/2010, Motions due by 1/20/2011). Signed by Chief Judge Karen E. Schreier on 08/19/2010. (KC)

Cullison et al v. Hilti, Inc.

Doc. 22

UNITED STATES DISTRICT COURT D I S TR I C T OF SOUTH DAKOTA S O U TH E R N DIVISION M I C H A E L CULLISON, JR., a n d AMBER CULLISON, Plaintiffs, vs. H I L TI , INC., Defendant. ) ) ) ) ) ) ) ) ) ) C I V . 09-4122-KES

O R D E R GRANTING PLAINTIFFS' M O TI O N TO EXTEND D IS C O V E R Y AND DENYING D E F E N D A N T'S SUMMARY J U D G M E N T MOTION

P la in tiffs , Michael Cullison, Jr., and Amber Cullison, filed a tort action a lle g in g strict liability claims and seeking punitive damages against the d e fe n d a n t, Hilti, Inc., after Michael injured his left eye at work. The Cullisons c la im that Hilti's safety glasses were defective and caused the injury. After the c lo s e of discovery, Hilti moved for summary judgment on all claims. The C u llis o n s oppose the summary judgment motion and move the court to extend d is c o v e ry . The motion to extend discovery is granted and the summary judgment m o tio n is denied without prejudice. BACKGROUND This is a tort action arising out of an injury to Michael. Michael worked as a steel stud framer for Dave Kramer Drywall. On July 18, 2006, Michael was w o rk in g with Jon Rotert at the construction site of the Sunshine Food Store in S io u x Falls, South Dakota, to erect the steel framing for the project. R o te rt used a DX350 Hilti Powder Actuated tool to shoot steel pins into the s te e l tracking. Michael assisted Rotert by holding the steel track so that Rotert

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could fasten the track to the I-beam. Michael wore safety glasses that he said he fo u n d in the DX350 case. He knew to wear safety glasses because he had been tra in e d and certified on the DX350. At the time of the incident, Michael stood five to six feet behind Rotert. When Rotert shot the DX350 gun, a steel pin fra g m e n te d and a small shard entered Michael's left eye. M ic h a e l underwent surgery to remove the fragment. He has continued to e x p e rie n c e some trouble with vision in his left eye. In his suit against Hilti to re c o v e r damages from the incident, Michael alleges strict liability claims of a d e fe c tiv e product and a failure to warn under South Dakota law. Amber claims a lo s s of consortium. The Cullisons also claim punitive damages and allege that H ilti acted willfully and wantonly. DISCUSSION I. M o t io n to Extend Discovery Th e Cullisons move to extend the discovery deadlines under Federal Rule o f Civil Procedure 16(b)(4). The Cullisons seek an additional 30 days to identify e x p e rts and disclose expert reports and 30 days from that date for Hilti to id e n tify its experts and disclose its reports. All other discovery would be c o n c lu d e d in 120 days. A discovery schedule "may be modified only for good cause and with the ju d g e 's consent." Fed. R. Civ. P. 16(b)(4). "The primary measure of good cause is th e movant's diligence in attempting to meet the order's requirements." Rahn v. H awk in s , 464 F.3d 813, 822 (8th Cir. 2006). The moving party must show cause

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to modify a schedule. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th C ir. 2008). Good cause under Rule 16(b) is an "exacting" standard "for it d e m a n d s a demonstration that the existing schedule cannot reasonably be met d e s p ite the diligence of the party seeking the extension." Engleson v. Little Falls A re a Chamber of Commerce, 210 F.R.D. 667, 668-69 (D. Minn. 2002) (internal c ita tio n s omitted). W h e n a party seeks to extend discovery after the discovery timeline has e x p ire d , he has the additional burden of showing that his failure to act timely w a s "because of excusable neglect." Fed. R. Civ. P. 6(b)(1); Spoden v. Abbe Ctr. for C m ty Care, Inc., No. C09-0156, 2010 WL 2892449, at *3 (N.D. Iowa, Jul. 22, 2 0 1 0 ). When a party cannot legitimately meet a deadline, the proper course is to s e e k an extension of the deadline before the deadline expires. Trost v. Trek B ic y c le Corp., 162 F.3d 1004, 1008 (8th Cir. 1998). In their joint Form 52 Report, the parties agreed to complete discovery on M a y 28, 2010. Docket 9, ¶ 3(b); Docket 10, ¶ 3. The parties further agreed that th e Cullisons would disclose their expert witnesses by January 15, 2010, and H ilti would disclose its experts by March 5, 2010. Docket 9, ¶ 3(g); Docket 10, ¶ 5. In the beginning of discovery, the Cullisons diligently complied with the d is c o v e ry timeline. The Cullisons dutifully filed initial disclosures and listed thirteen people who had knowledge about the case. Docket 12. The Cullisons a ls o participated in the depositions of Michael and Jon Rotert. Docket 18-6;

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Docket 18-7. Importantly, the Cullisons and Hilti were attempting to reach a s e ttle m e n t as late as June 10, 2010. Docket 21; Docket 18-5. Discovery is e x p e n s iv e and the Cullisons' attempts to settle the matter instead of incurring a d d itio n a l attorney fees and costs constitutes good cause to extend discovery u n d e r these circumstances. The Cullisons' failure to move for an extension before discovery closed is e x c u s a b le neglect. Strict liability actions raise complex legal and factual issues. W h ile the parties may have initially believed that they allotted sufficient d is c o v e ry time, the case's complexity made the discovery deadlines too short to s u ffic ie n tly investigate the matter. Further, given that the parties were still d is c u s s in g settlement around June 10, 2010, when discovery closed May 28, 2 0 1 0 , shows that any neglect by the Cullisons was excusable. Accordingly, the C u llis o n s ' request for extension of the discovery deadline under Rule 16(b)(4) is g ra n te d . II. S u m m a ry Judgment Motion B e c a u s e the parties now have additional time to conduct discovery, Hilti's s u m m a ry judgment motion is denied without prejudice. At the close of discovery, e ith e r party may again move for summary judgment. CONCLUSION Th e motion to extend discovery under Rule 16(b)(4) is granted. At this tim e , Hilti's summary judgment motion is denied without prejudice. After the c lo s e of discovery, the Cullisons or Hilti may move for summary judgment.

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Accordingly, it is ORDERED that the Cullisons' motion to extend discovery deadlines (D o c k e t 19) is granted. IT IS FURTHER ORDERED that the Cullisons have until September 20, 2 0 1 0 , to disclose their expert witnesses and any reports. Hilti has until O c t o b e r 20, 2010, to disclose its experts and reports. All other discovery will c o n c lu d e by December 20, 2010. The dispositive motion deadline will be J a n u a r y 20, 2011. All other provision of the court's prior scheduling order re m a in in effect. I T IS FURTHER ORDERED that Hilti's motion for summary judgment (D o c k e t 14) is denied without prejudice. IT IS FURTHER ORDERED that the motion hearing and pretrial c o n fe re n c e scheduled for September 7, 2010, and the jury trial scheduled for O c to b e r 12, 2010, are canceled. After the court rules on any dispositive motions th a t are filed, the court will then issue a new order scheduling the pretrial c o n fe re n c e and trial. Dated August 19, 2010. BY THE COURT:

/s/

Karen E. Schreier

K A R E N E. SCHREIER C H I E F JUDGE

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