Jensen v. West Jordan City et al

Filing 113

MEMORANDUM DECISION AND ORDER granting 89 Motion to Amend Scheduling Order. Defendants shall designate their experts and serve their expert reports no later than November 23, 2015. Signed by Magistrate Judge Dustin B. Pead on 10/9/2015. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

AARON JENSEN,

MEMORANDUM DECISION

Plaintiff,

Case No. 2:12-cv-00736-DAK-DBP

v.

District Judge Dale A. Kimball

WEST JORDAN CITY, et al.,

Magistrate Judge Dustin B. Pead

Defendants.

INTRODUCTION
This civil rights matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Dkt. 36.)
Plaintiff Aaron Jensen alleges that West Jordan City and his former supervisor, Lt. Robert
Shober, acted wrongfully in connection with a 2009 settlement of Plaintiff’s discrimination
claims against the City. The matter is presently before the Court on Defendants’ Motion to
Amend the Scheduling Order. (Dkt. 89.)
ANALYSIS
Defendants seek to amend the scheduling order to allow them time to designate experts and
file expert reports. (Dkt. 89.) When Defendants filed this motion, the deadline for Defendants to
designate experts had passed, although the deadline for providing expert reports had not. (See
Dkt. 50; Dkt. 89.) Defendants argue there is good cause to justify the amendment because their
failure to timely designate experts came as a result of confusion over the deadline to designate,
particularly in light of their agreement with Plaintiff regarding an extension of certain expert

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disclosure deadlines. Defendants request, in the alternative, that the Court strike Plaintiff’s expert
report because Defendants did not receive a timely designation.
Plaintiff argues that Defendants’ request to amend the scheduling order should be denied
because Defendants have not demonstrated good cause. (Dkt. 95.) Specifically Plaintiff alleges
that he will be prejudiced if the Court grants the motion and that Defendants were not diligent in
obtaining the requisite discovery. Plaintiff also opposes Defendants’ alternative request to strike
Plaintiff’s expert.
I.

Defendants have shown good cause to amend the expert discovery schedule

A scheduling order may be amended “only for good cause and with the judge’s consent.”
Fed. R. Civ. P. 16(b)(4). Trial courts enjoy discretion to extend or reopen discovery. Smith v.
United States: 834 F.2d 166, 169 (10th Cir. 1987). The Tenth Circuit considers several factors in
evaluating the trial court’s use of that discretion:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether the
non-moving party would be prejudiced, 4) whether the moving party was diligent
in obtaining discovery within the guidelines established by the court, 5) the
foreseeability of the need for additional discovery in light of the time allowed for
discovery by the district court, and 6) the likelihood that the discovery will lead to
relevant evidence.
The Court finds there is good cause to amend the schedule based upon Defendants’
misunderstanding of the deadlines and their agreement with Plaintiff. Turning to the Smith
factors, the parties appear to agree that trial is not imminent and that Plaintiff opposes the
motion. Trial is currently set for August 29, 2016. (Dkt. 50.) Likewise, the Court finds that the
discovery will lead to relevant evidence. Plaintiff does not suggest otherwise.
Next, the Court finds that Plaintiff will not be prejudiced. Plaintiff claims he will be
prejudiced by delay and because he will incur litigation costs to oppose Defendants’ expert;
however, Plaintiff identifies no particular hardship that might be created by a late designation of
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experts. Instead, he cites a prior order in which this Court partially granted his motion to amend
his complaint, and granted him a discovery extension. (Dkt. 95 (quoting Dkt. 65.).) Plaintiff does
so, apparently, to draw a parallel between the delay of more than two years in seeking to amend
his complaint to add new defendants, and a delay of several weeks in designating an expert and
preparing the expert’s report. The two scenarios are distinguishable for a number of reasons,
including length of delay, and more importantly prejudice to the nonmoving parties. As to the
argument regarding expenses, Plaintiff has not explained how his expenses might increase due to
the proposed scheduling amendment. Instead, this appears to be an ordinary litigation expense
that will not be altered by an extension of the time to designate Defendants’ experts and provide
reports. See also infra, Part I.a (discussing standard for striking experts).
Plaintiff argues that Defendants were not diligent because they did not designate experts or
provide reports “in the past three years before the deadlines expired.” This comment is puzzling
given that Plaintiff requested, and Defendants extended, the professional courtesy of an
extension for Plaintiff to provide his expert’s report. (See Dkt. 95 at 4 (discussing the “agreement
to allow Mr. Jenson to produce his expert reports on July 13, 2015 . . .”).) Plaintiff also attempts
to use defense counsel’s statements in seeking an informal resolution of this matter against
Defendants. The Court will not reward this tactic. The Court encourages informal resolution,
particularly of scheduling matters.
Nonetheless, the Court does not find that Defendants have been perfectly diligent.
Defendants missed the deadline to designate an expert, whether due to confusion about the
scheduling order or their agreement with Plaintiff. Missing a deadline demonstrates at least some
lack of diligence. Nonetheless, the Court finds Defendants have been sufficiently diligent to
justify the amendment they now seek. Defendants moved expeditiously to reach a resolution with

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opposing counsel. When that failed, Defendants promptly sought relief with the Court by way of
this motion seeking a reasonable extension of the expert deadlines.
a. Defendants’ experts are not automatically stricken even though the deadline
to designate expired.
Further, this motion appears predicated upon a false assumption. Plaintiff appears to believe
that Defendants’ failure to designate results in automatic exclusion of Defendants’ expert
witness. (See Dkt. 95 at 3 (claiming that defendant will be forced to depose Defendants expert
and find a rebuttal expert “if this Court grants Defendants leave to file their expert designations .
. .”).) This is not true. Exclusion is a drastic remedy, and unjustified here. “The decision to
exclude evidence is a drastic sanction.” Summers v. Missouri Pacific Railroad System, 132 F.3d
599, 604 (10th Cir.1997). The Tenth Circuit considers four factors to evaluate a trial court’s use
of discretion in striking expert witnesses:
(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.
Id. The Summers court found reversible error where the trial court refused an extension of time
to allow a late expert witness designation. Id.
The Court has already found that Plaintiff is not prejudiced by the late designation. Trial will
not be disrupted given it is set to begin August 29, 2016. The Court also finds no bad faith or
willfulness on Defendants’ part. At worst, the failure to timely designate resulted from
inadvertence, not bad faith or willfulness. Thus, even if the Court refused to amend the
scheduling deadlines, Defendants’ expert would not automatically be stricken.
Based on the foregoing, the Court finds that Defendants have shown good cause to amend the
scheduling order to allow them time to designate expert witnesses and provide expert reports.
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b. The Court does not reach the issue of striking Plaintiff’s expert report
Defendants have shown good cause to amend the scheduling order. Accordingly, the Court
need not, and does not, reach their alternative request for relief.
ORDER
For the reasons set forth above, the Court GRANTS Defendants’ Motion to Amend
Scheduling Order. (Dkt. 89.) Defendants shall designate their experts and serve their expert
reports no later than November 23, 2015.
IT IS SO ORDERED.
Dated this 9th day of October, 2015.

By the Court:

Dustin B. Pead
United States Magistrate Judge

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