Gilmore v. Boeing Company

Filing 49

ORDER denying Defendant's 31 Motion to Compel and to Extend Rebuttal Report Deadline. Signed by Judge Marsha J. Pechman. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MICHAEL GILMORE,
Plaintiff,

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v.

CASE NO. C16-1617-MJP
ORDER DENYING DEFENDANT’S
MOTION TO COMPEL AND TO
EXTEND REBUTTAL REPORT
DEADLINE

BOEING COMPANY,
Defendant.

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THIS MATTER comes before the Court on Defendant Boeing Company’s Motion to

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Compel Interview of Plaintiff by Boeing’s Rebuttal Export and to Extend Rebuttal Report

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Deadline. (Dkt. No. 31.) Having reviewed the Motion, the Response (Dkt. No. 46), the Reply

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(Dkt. No. 48) and all related papers, the Court DENIES Defendant’s Motion.

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Background
Plaintiff filed suit against Boeing in October 2016 for claims including discriminatory

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and retaliatory termination, hostile work environment, and failure to accommodate his disability.

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(Dkt. No. 1.) Plaintiff requested economic damages in the form of back pay and front pay, lost

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ORDER DENYING DEFENDANT’S MOTION TO COMPEL AND TO EXTEND REBUTTAL REPORT
DEADLINE - 1

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wages and benefits, and medical expenses. (Id.) Boeing answered the complaint in December

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2016 and plead various affirmative defenses including failure to mitigate damages. (Dkt. No. 8.)

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Pursuant to the Court’s September 6, 2017 scheduling order, expert witnesses were to be

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disclosed by September 5, 2017; discovery completed by November 3, 2017; and dispositive

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motions filed by December 4, 2017. (Dkt. No. 21.) The parties stipulated to extend the deadline

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for expert disclosures until November 14, 2017. (Dkt. No. 23.)

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On November 14, 2017, Plaintiff disclosed experts including Ms. Christina Tapia (who

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opined on the economic implications of Plaintiff’s damages) and Mr. Anthony J. Choppa, Jr.

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(who opined on Plaintiff’s vocational potential). (Dkt. No. 31 at 3.) Boeing did not disclose any

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experts. (Id. at 3; Dkt. No. 46 at 9.) Following Plaintiff’s disclosure of experts, Boeing asked

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Plaintiff to submit to an interview with its vocational expert, Mr. Lee Miller. (Dkt. No. 31 at 3.)

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Plaintiff has refused to do so, and Boeing filed this motion on November 30, 2017. (Id.)

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Discussion

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A scheduling order may be modified only for good cause. Fed. R. Civ. P. 16(b)(4).

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Boeing claims that modification to the scheduling order is needed to allow Mr. Miller to

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interview Plaintiff to determine whether he made appropriate efforts to mitigate damages, and to

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thereby rebut Ms. Tapia’s and Mr. Choppa’s economic damages and vocational analyses. (Dkt.

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No. 31 at 4-5.) Boeing claims it was unable to disclose Mr. Miller or to seek the requested

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interview before the expert disclosure and discovery deadlines because it “did not know if it

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needed to designate rebuttal experts until receiving Plaintiff’s disclosures on November 14.” (Id.

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at 6.) However, Plaintiff’s failure to mitigate damages is certainly relevant to Boeing’s own

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affirmative defense, and Boeing has not offered a satisfactory explanation as to why it could not

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disclose Mr. Miller or seek the interview with Plaintiff before the deadline for expert disclosure.

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ORDER DENYING DEFENDANT’S MOTION TO COMPEL AND TO EXTEND REBUTTAL REPORT
DEADLINE - 2

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Further, unlike in Shokri v. Boeing, No. C16-1132RSM, 2017 WL 4339609, at *4 (W.D. Wash.

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Sept. 29, 2017), where the motion to compel was before the close of discovery, Boeing has

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waited until nearly a month after the close of discovery to file this motion.

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Conclusion
Because Boeing has not demonstrated good cause for modifying the scheduling order to
permit Mr. Miller to interview Plaintiff, the Court DENIES Defendant’s Motion in its entirety.

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The clerk is ordered to provide copies of this order to all counsel.

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Dated December 18, 2017.

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A

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Marsha J. Pechman
United States District Judge

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ORDER DENYING DEFENDANT’S MOTION TO COMPEL AND TO EXTEND REBUTTAL REPORT
DEADLINE - 3