Zamora et al v. City Of Houston et al
Filing
180
ORDER granting 174 Extension of Deadlines. Plaintiff must file an opinion statement from Tucker on or before December 9, 2011. It is further ORDERED that Defendants expert designations and reports are due on or before January 9, 2012. It is furthe r ORDERED that the parties summary judgment motions (limited to twenty pages) are due on or before January 30, 2012. It is further ORDERED that Daubert motions (limited to ten pages) are due on or before February 13, 2012. It is further ORDERED that mediation before Judge Hanks is to be held on or before February 29, 2012. It is further ORDERED that the parties Joint Pretrial Order is due on April 13, 2012. It is further ORDERED that Docket Call is set for Monday, April 23, 2012, at 3:00 p.m. (Signed by Judge Nancy F. Atlas) Parties notified.(arrivera, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRISTOPHER ZAMORA,
Plaintiff,
v.
CITY OF HOUSTON,
Defendant.
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CIVIL ACTION NO. 4:07-4510
ORDER GRANTING EXTENSION OF DEADLINES
Plaintiff Christopher Zamora has filed a Motion for Extension of Scheduling
Order to Supplement Expert Disclosures with Expert Report as Required by Rule
26(a)(2)(B)(i) [Doc. # 174] (“Motion”). Defendant City of Houston has filed a
Response [Doc. # 178] in opposition. Having considered the parties’ briefing, the
applicable legal authorities, and all matters of record, the Court concludes that the
Motion should be granted.
On November 2, 2011, this Court held a discovery hearing and ordered, among
other things, that Plaintiff’s expert designations and reports were due on November
10, 2011, and that Defendant’s expert designations and reports were due on November
30, 2011.1
1
Telephone Hearing Minutes and Order, dated Nov. 2, 2011 [Doc. # 169].
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On his November 10 deadline, Zamora filed Disclosure of Expert Testimony
of William B. Stewart Jr., CPA [Doc. # 172],2 and a Disclosure of Expert Testimony
of Melvin L. Tucker, MPA [Doc. # 173]. That same day, he also filed his Motion,
seeking modification of the Court’s scheduling order pursuant to Federal Rule of Civil
Procedure 16(b)(4). The Motion seeks an additional thirty days to provide an expert
report from Tucker, as required by Federal Rule of Civil Procedure 26(a)(2)(B).
Zamora’s November 10 disclosure as to Tucker provided only the expert’s identity,
qualifications, and a statement regarding his compensation.3 It did not provide “a
complete statement of all opinions the witness will express and the basis and reasons
for them,” or other items required by Rule 26(a)(2)(B). Zamora proposes to submit
the complete report by December 10, 2011.4
Rule 16(b)(4) permits modification of the Court’s scheduling order only “for
good cause” and with the judge’s consent. When determining whether a party has
demonstrated good cause to extend a deadline for submission of an expert report, the
Fifth Circuit looks to four factors: (1) the explanation for the failure to submit a
complete report on time; (2) the importance of the testimony; (3) potential prejudice
2
This filing contains includes Stewart’s expert opinion and the reasons supporting it.
3
See Doc. # 173.
4
Because December 10, 2011, is a Saturday, the Court will construe his requested
deadline as December 9, 2011.
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in allowing the testimony; and (4) the availability of a continuance to cure such
prejudice.5
In this case, Zamora is retaining Tucker to testify as to the policies, procedures,
and culture of the Houston Police Department, in support of Zamora’s retaliation
claim.6 He states that a thirty-day extension is necessary because, since the Court’s
scheduling order on November 2, he has “spent long hours and substantial funds”
locating and reviewing the discovery information provided to the City by Plaintiff’s
previous counsel and that, “[n]earing the close of the discovery period it was
determined that no expert witnesses, other than those related to attorney’s fees, had
ever been disclosed” to the City.7 He further states that he has been diligent in
attempting to secure an expert “but until now has been unable to financially secure the
services of a qualified and willing law enforcement expert witness.”8
The City disputes Zamora’s financial situation as a basis for the delay, stating
that Zamora has been “gainfully employed” with HPD throughout pendency of this
5
S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir.
2003); Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.
1997).
6
Motion, at 4.
7
Id. at 5. Discovery is due by December 16, 2011. Doc. # 169.
8
Motion, at 6.
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suit, and that police employment offers opportunities for additional income through
overtime or outside employment.9 Zamora’s Motion explains, however, that his
financial resources have been strained by his defense against adverse employment
actions initiated by Defendant, litigation of this suit, his divorce during pendency of
the suit,“all the adversity in his personal and professional life” occurring after the
alleged retaliation by Defendant, and the need to retain Stewart as an expert on
damages.10 He states that until now he has been unable to financially secure the
services of a willing and qualified witness.
The City also opposes the Motion because Tucker will testify as to “policies
and procedures” of the Houston Police Department, which the City construes as an
attempt to resurrect Zamora’s claim under 42 U.S.C. § 1983. This Court dismissed
the Section 1983 claims of Zamora and the previous Plaintiffs in its Memorandum and
Order of August 12, 2010,11 and the dismissal was affirmed by the Fifth Circuit.
However, Zamora’s Motion clearly states that Tucker’s testimony will pertain to his
Title VII retaliation claim.12 Moreover, Zamora’s proposed supplemental complaint,
9
Response, at 3.
10
Motion, at 5-6.
11
Memorandum and Order [Doc. # 132], at 31-32.
12
Motion, at 4 (citing Burlington No. & Santa Fe Rwy. Co. v. White, 548 U.S. 53, 55
(continued...)
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filed on November 9, 2011, does not seek to add a Section 1983 claim.13 The City’s
assertion of prejudice on this ground therefore is misplaced.
Finally, the City opposes the Motion because the extension sought by Zamora
would prejudice the City by requiring that other deadlines in the current scheduling
order be reset.14 The City requests that, if Zamora’s deadline is extended, its deadline
for expert designation and reports also should be extended until thirty days after
submission of Tucker’s report. This extension also would impact the summary
judgment motions deadline, currently set for December 30, and the Daubert motions
deadline of January 13.
Having considered all of the parties’ arguments and the Fifth Circuit’s standard,
the Court concludes that good cause exists to extend Zamora’s deadline for
submission of his expert report. Zamora has adequately explained the failure by
Tucker to submit a complete report by November 10. Tucker’s testimony is important
to Zamora’s sole remaining claim of Title VII retaliation, and likely will inform the
12
(...continued)
(2006)).
13
See Doc. # 171.
14
Current deadlines are as follows: City’s Expert Designations and Reports due
November 30; discovery due December 16; Motions for Summary Judgment due
December 30; mediation before Judge Hanks on or before December 31; Daubert
Motions due January 13, 2012; Joint Pretrial Order due March 9; Docket Call March
19. Doc. # 169. The Court has not yet set a trial date.
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jury of matters about which lay people know little, if anything.
Moreover,
continuances of other deadlines in the Court’s schedule will cure any prejudice to the
City. It is therefore
ORDERED that Plaintiff’s Motion for Extension of Scheduling Order [Doc.
# 174] is GRANTED. Plaintiff must file an opinion statement from Tucker on or
before December 9, 2011. It is further
ORDERED that Defendant’s expert designations and reports are due on or
before January 9, 2012. It is further
ORDERED that the parties’ summary judgment motions (limited to twenty
pages) are due on or before January 30, 2012. It is further
ORDERED that Daubert motions (limited to ten pages) are due on or before
February 13, 2012. It is further
ORDERED that mediation before Judge Hanks is to be held on or before
February 29, 2012. It is further
ORDERED that the parties’ Joint Pretrial Order is due on April 13, 2012. It
is further
ORDERED that Docket Call is set for Monday, April 23, 2012, at 3:00 p.m.
SIGNED at Houston, Texas, this 18th day of November, 2011.
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