Keith v. J.D. Byrider Systems, LLC, et al

Filing 75

MEMORANDUM OPINION AND ORDER denying 71 MOTION Designate Expert Witness filed by Byrider Finance, LLC, Byrider Funding, LLC, Byrider Holding Corporation, Byrider Sales of Indiana S, LLC, CarNow Auto Receivables Trust 2012-1, J.D. Byrider Systems, LLC. (Ordered by Judge Sidney A Fitzwater on 12/29/2016) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARVIN KEITH,

§
§
Plaintiff,
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§ Civil Action No. 3:14-CV-1317-D
VS.
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§
J.D. BYRIDER SYSTEMS, LLC F/K/A §
J.D. BYRIDER SYSTEMS, INC., et al., §
§
Defendants. §
MEMORANDUM OPINION
AND ORDER
Defendants J.D. Byrider Systems, LLC f/k/a J.D. Byrider Systems, Inc. and Byrider
Sales of Indiana S, LLC f/k/a Byrider Sales of Indiana S, Inc. move for leave to designate an
expert witness after the deadline. For the reasons that follow, the court denies the motion.
I
Because the background facts and procedural history are set out in the court’s prior
memorandum opinions and orders, Keith v. J.D. Byrider Systems, LLC, 2014 WL 5148124,
at *1 (N.D. Tex. Oct.14, 2014) (Fitzwater, C.J.), 2015 WL 3539555, at *1 (N.D. Tex. June
5, 2015) (Fitzwater, J.), and 2016 WL 6139098, at *1 (N.D. Tex. Oct. 20, 2016) (Fitzwater,
J.) (“Keith III”), the court will focus on what is pertinent to the present decision.
Under the amended scheduling order, the deadline to designate expert witnesses was
December 1, 2015, and the deadline to designate rebuttal experts was January 15, 2016. The
deadline for completing discovery and filing a joint estimate of trial length and status report,
and the deadline for filing a summary judgment motion and a motion not otherwise

covered—after being extended on defendants’ motion—were set as May 1, 2016 and June
1, 2016, respectively. Plaintiff Marvin Keith (“Keith”) disclosed several nonretained experts,
who did not submit reports. Defendants did not designate expert witnesses.
The trial of this case was previously set for the December 5, 2016 two-week docket.
In October 2016 the court denied defendants’ motion for summary judgment on Keith’s sole
remaining claim. See Keith III, 2016 WL 6139098, at *4. Defendants filed the instant
motion on November 1, 2016. The court, on its own initiative, later reset the trial for the
April 3, 2017 two-week docket.
II
When deciding whether to allow late designation of an expert witness, the court’s
discretion is guided by four factors: “(1) the explanation for the failure to identify the
witness, (2) the importance of the testimony, (3) the potential prejudice in allowing the
testimony, and (4) the availability of a continuance to cure such prejudice.” Wright v. BlytheNelson, 2001 WL 804529, at *2 (N.D. Tex. July 10, 2001) (Fitzwater, J.) (citing Geiserman
v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). The court considers the four factors
holistically and “does not mechanically count the number of factors that favor each side.”
EEOC v. Serv. Temps, Inc., 2009 WL 3294863, at *3 (N.D. Tex. Oct. 13, 2009) (Fitzwater,
C.J.), aff’d, 679 F.3d 323 (5th Cir. 2012). When, as here, the scheduling order prescribes the
timeline for expert witness designation, the district court has “‘broad discretion to preserve
the integrity and purpose of the pretrial order.’” Geiserman, 893 F.2d at 790 (quoting
Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)).
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III
A
The court initially considers defendants’ explanation for designating an expert witness
after the deadline. Defendants maintain that the “Court did not issue its Order on Byrider’s
Motion for Summary Judgment until October 20, 2016.” Ds. Br. 6. Defendants also appear
to argue that their request for late designation is explained by Keith’s choice not to designate
a retained expert whose opinions could be rebutted.
Keith responds that defendants have no good explanation for the late expert
designation, which came approximately ten months after the deadline. He also maintains that
the denial of summary judgment is not a basis to nullify the deadline to designate experts.
And Keith points out that he designated nonretained experts, but defendants chose not to
make a responsive designation until now.
Given that defendants have not produced a satisfactory explanation for waiting until
now to designate an expert, the court concludes that this factor weighs against granting leave.
B
The court next considers the importance of the testimony that defendants seek to
introduce. Defendants maintain that their proposed expert is highly qualified to opine about
Keith’s claim, and will thus assist the trier of fact.1 They argue that expert testimony is
useful when the issue involves matters beyond the jurors’ common understanding, which

1

Defendants offer two alternative experts because of scheduling uncertainty, but
ultimately intend to designate one.
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they contend is the case with Keith’s claim relating to securitized transactions.
Keith responds that defendants have not established the expert’s importance to their
case. Although defendants cite a decision that reversed the district court’s exclusion of latedesignated experts, in that case the excluded experts were the party’s only support for an
essential element on which the party had the burden of proof. See Betzel v. State Farm
Lloyds, 480 F.3d 704, 707-08 (5th Cir. 2007). But here, as Keith points out, defendants can
only contend that the expert will be helpful; they do not suggest that he is essential.
Under these circumstances, the court concludes that the importance of the testimony
is either neutral or weighs against granting leave.
C
The court now turns to the potential prejudice to Keith in allowing defendants to
designate an expert. Defendants suggest that their proposed expert will not prejudice Keith
because the expert’s insight will “aid in the effective and fair adjudication of this case,” Ds.
Br. 8; they contend that the trial continuance to April 2017 eliminates prejudice by giving
Keith time to prepare; and they maintain that any additional expense that Keith might incur
from the late designation will be no greater than if the designation had been timely.
Keith responds that he will be prejudiced by the expert designation because it will
require reopening discovery and disrupting his existing case preparation. Keith contends that
allowing the expert designation could require him to file a Daubert challenge or designate
rebuttal experts of his own. He posits that, at this stage in the case, with dispositive motions
already concluded and trial preparation underway, permitting any new expert designation by
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defendants would significantly prejudice him.
The court finds, largely from the reasons on which Keith relies, that he would suffer
at least some prejudice from granting defendants leave to designate an expert. This factor
weighs against granting leave
D
The court next considers the availability of a continuance to cure any prejudice.
Defendants argue that a continuance is the preferred course of action when a party requests
to untimely designate an expert witness. See Betzel, 480 F.3d at 708. They also maintain
that Keith may have adequate time to respond to a new expert with no continuance at all.
Keith responds that a continuance would not resolve the prejudice to him. He
contends that granting leave, much less a continuance, would essentially reward defendants
for dilatory conduct. He also maintains that competing interests make a continuance
unattractive, such as the interest in enforcing scheduling orders and local rules, and
maintaining a deterrent against disregarding them. See Betzel, 480 F.3d at 709 (citing 1488
Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1289 (5th Cir. 1991)).
The court finds that a continuance to permit defendants to make a late designation of
an expert would unacceptably disrupt the progress of the case and Keith’s preparation for
trial.
E
Considering the four factors holistically, the court finds that defendants have not
demonstrated good cause to modify the scheduling order to permit late designation of an
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expert witness. Defendants have failed to offer a satisfactory explanation for not timely
designating an expert. And their characterization of the expert’s importance relates primarily
to the expert’s qualifications and Keith’s lack of an expert rather than to the role of expert
evidence in defendants’ case. The prejudice to Keith from granting leave, with or without
a continuance, would be significant.2 The four factors on balance weigh against permitting
the late expert designation.
*

*

*

Accordingly, the court denies defendants’ motion for leave to designate an expert
witness.
SO ORDERED.
December 29, 2016.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

2

Although in reaching this decision the court has assumed that the case will be tried
at the April 3, 2017 setting, the court must advise the parties and their counsel that,
unfortunately, this court’s civil docket has been adversely impacted by the loss of judges in
the Dallas Division and its increased responsibilities for criminal cases in this division and
in the Amarillo Division. Because criminal cases take precedence over civil cases, this has
adversely impacted recent civil trial dockets. While the court will make every effort to reach
this case for trial, these circumstances may adversely affect those efforts.
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