First Guaranty Bank v. Republic Bank

Filing 239

MEMORANDUM DECISION granting 232 Motion for Extension of Time. The deadline for Republic to serve expert disclosures is extended to April 6, 2021. The court ORDERS Republic to pay First Guaranty the reasonable expensesincluding a ttorneys feesincurred because of Republics noncompliance with the scheduling order. First Guaranty may file a brief listing its reasonable expenses by April 30, 2021. Republic may file any objections by May 10, 2021. Signed by Judge Jill N. Parrish on 4/9/21. (alf)

FILED
2021 APR 9 PM 3:12
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

FIRST GUARANTY BANK,
v.

Plaintiff,

REPUBLIC BANK, INC. nka RB
PARTNERS, INC.,
Defendant.

MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO
AMEND SCHEDULING ORDER AND
ORDER TO PAY REASONABLE
EXPENSES
Case No. 1:16-cv-00150-JNP-CMR
District Judge Jill N. Parrish

Before the court is defendant Republic Bank, Inc.’s motion to extend the deadline to serve
its expert disclosures. The court grants the motion. But the court also sanctions Republic for its
failure to comply with the scheduling order or to file a timely motion to amend it. Plaintiff First
Guaranty Bank may request any fees or costs associated with Republic’s delay in producing the
expert disclosure.
BACKGROUND
Judge Romero entered the Tenth Amended Scheduling Order in this case on October 26,
2020. The order established a January 4, 2021 deadline for Republic to serve its expert witness
disclosures. On November 5, 2020, the court scheduled a four-day bench trial for May 17, 2021.
On December 31, 2020, counsel for Republic emailed counsel for First Guaranty,
requesting an extension of the deadline to serve its expert disclosure from January 4, 2021 to
January 15, 2021 and of the deadline for expert discovery from February 19, 2021 to March 5,
2021. First Guaranty agreed to the new dates by email on January 3, 2021. On January 5, 2021,
Republic emailed an amended proposed scheduling order to First Guaranty. The proposed order,
in addition to amending the expert witness deadlines, added additional language characterizing

First Guaranty’s remaining claims in the litigation. First Guaranty objected to the language
characterizing its claims and reiterated that it would agree to the requested extensions but that it
would not stipulate to other changes to the language of the order. On January 6, 2021, Republic
proposed alternative language, but First Guaranty reiterated that it would not agree to any language
characterizing its remaining claims. Republic never responded to First Guaranty’s email and never
moved to amend the scheduling order to reflect the extensions agreed to by First Guaranty.
On March 31, 2021 Republic filed a motion to extend its deadline to serve its expert
disclosures from January 4, 2021 until April 6, 2021. Republic did not meet and confer with First
Guaranty regarding its request to extend the deadline. In its motion, Republic represented that it
did not receive complete deposition transcripts from First Guaranty’s expert witnesses until
January 26, 2021. Republic also stated:
During February and March 2021, Republic’s expert, a practicing attorney in Salt
Lake City, had several extensive litigation matters that required his full attention,
which postponed the time needed to complete his opinion. Additionally, the expert’s
property was damaged in unexpected criminal matter, which forced him to travel
from Salt Lake City on several occasions.
On April 5, 2021, Republic delivered a 24-page expert report to First Guaranty. On the
same day, First Guaranty filed an opposition to Republic’s motion to amend its expert disclosure
deadline.
ANALYSIS
“A schedule may be modified only for good cause and with the judge’s consent.” FED. R.
CIV. P. 16(b)(4). In determining whether good cause exists to amend a scheduling order to permit
an expert witness to give testimony at trial, courts consider four factors:
(1) the prejudice or surprise in fact of the party against whom the excluded
witnesses would have testified, (2) the ability of that party to cure the prejudice, (3)
the extent to which waiver of the rule against calling unlisted witnesses would
disrupt the orderly and efficient trial of the case or of other cases in court, and (4)
bad faith or willfulness in failing to comply with the court’s order.
2

Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir. 2011) (citation omitted). The Tenth
Circuit has also noted that the denial of a motion to amend a scheduling order, “which results in
the exclusion of evidence is . . . ‘a drastic sanction.’” Id. (citation omitted).
The first two factors—the prejudice to First Guaranty and the court’s ability to cure any
prejudice—weigh in favor of permitting the amendment requested by Republic. First Guaranty
points out that a number of deadlines for the upcoming bench trial are either rapidly approaching,
or have already passed, including the deadline to produce trial exhibits (April 8), to designate video
testimony (April 9), to file Daubert motions or motions in limine (April 22), and to file a trial brief
(April 29). It argues that such a late designation of Republic’s expert witness will make it
impossible to depose the expert and meet these deadlines. The court agrees. But the court finds
that this prejudice can be cured. The court will view very favorably any request by First Guaranty
to extend these deadlines due to the late designation of Republic’s expert. Additionally, because
the trial will be a bench trial, the court has additional flexibility to permit Republic’s expert to
testify and rule on any motions to limit or exclude his testimony during or even after the trial.
Thus, the court finds that First Guaranty will have time to depose the expert and submit any extra
exhibits or file any motions in limine related to the expert’s proposed testimony before the May
17, 2021 bench trial.
The court also finds that the third factor weighs in favor of amendment. Because over a
month remains before the bench trial, adding an expert witness will not prevent an orderly and
efficient trial.
Finally, the last factor—Republic’s bad faith or willfulness in failing to comply with the
scheduling order—weighs against amendment. Counsel for Republic was well aware of the
January 4, 2021 deadline to serve the expert witness disclosures. First Guaranty had even agreed

3

to extend the deadline to January 15, 2021. But instead of filing a stipulated motion to extend the
deadline and communicating with opposing counsel regarding any additional requests to extend
this deadline due to unforeseen circumstances, Republic simply ignored the deadline. Perhaps
adhering to the philosophy that it is better to ask forgiveness than to ask permission, Republic
waited until it was almost ready to serve its expert report before requesting permission to extend
the deadline. Thus, the court finds that Republic willfully disregarded the court’s witness
disclosure deadline.
In weighing these factors, the court also considers the Tenth Circuit’s policy disfavoring
the denial of a motion to amend a scheduling order if such a denial results in the exclusion of
otherwise admissible evidence at trial. See Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 604
(10th Cir. 1997). Here, the denial of Republic’s motion would result in the exclusion of its only
expert. Moreover, the first three factors weigh in favor of allowing amendment. Prejudice to First
Guaranty can be alleviated by permitting it to amend some of the pretrial deadlines for exhibits
and motions that may be affected by Republic’s late disclosure. And amendment will not disrupt
the trial. Republic’s willful disregard of the scheduling order deadline is disconcerting. But as
discussed below, sanctions short of excluding expert testimony are available to discourage such
conduct. Accordingly, in weighing the factors laid out by the Tenth Circuit, the court grants
Republic’s motion to amend the scheduling order. The deadline for Republic to serve expert
disclosures is extended to April 6, 2021.
“On motion or on its own, the court may issue any just orders, including those authorized
by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a scheduling or other pretrial
order.” FED. R. CIV. P. 16(f)(1). Here, Republic disregarded the scheduling order deadline to serve
its expert disclosures. Republic knew that it needed an extension of the deadline. First Guaranty

4

had even agreed to a short extension. But Republic failed to move for an extension until almost
three months after the deadline had passed. Republic also failed to communicate with opposing
counsel or the court about the status of its expert witness. Nor did it provide the information that
it could about its expert in order to ameliorate the prejudice caused by the delay. Because Republic
failed to obey the scheduling order or make a timely request to amend it. The court finds that a
sanction is appropriate.
“Instead of or in addition to any other sanction [for disobeying a scheduling order], the
court must order the party, its attorney, or both to pay the reasonable expenses—including
attorney’s fees—incurred because of any noncompliance with this rule, unless the noncompliance
was substantially justified or other circumstances make an award of expenses unjust.” Id. at
16(f)(2). For the same reasons stated above, Republic’s failure to obey the scheduling order was
not substantially justified nor are there other circumstances that would make an award of expenses
unjust. Accordingly, the court finds that an award of expenses caused by Republic’s noncompliance
with the scheduling order is appropriate.
CONCLUSION
For the reasons stated above, the court orders as follows:
1. The court GRANTS Republic’s motion to extend the deadline to serve expert
disclosures. ECF No. 232. The deadline for Republic to serve expert disclosures is
extended to April 6, 2021. The court ORDERS Republic to accommodate the
deposition of its expert as soon as reasonably practicable. The court will look favorably
on any motions by First Guaranty to amend any pretrial deadlines that may be affected
by the late disclosure of Republic’s expert witness. The court will not view any further
request by Republic to extend deadlines favorably.

5

2. The court ORDERS Republic to pay First Guaranty the reasonable expenses—
including attorney’s fees—incurred because of Republic’s noncompliance with the
scheduling order. First Guaranty may file a brief listing its reasonable expenses by April
30, 2021. Republic may file any objections by May 10, 2021.
DATED April 9, 2021.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

6