Mohamed v. Reinhart Boerner Van Deuren SC et al

Filing 113

ORDER signed by Judge Rudolph T. Randa on 2/14/2013 GRANTING 110 Rule 7(h) Expedited MOTION for Leave to Depose Third-Party Defendant. Carl Johan Freer MUST submit to deposition by 2/22/2013; Dispositive Motions now due by 3/4/2013. All remaining provisions of the Court's 3/30/2012 scheduling Order REMAIN IN EFFECT. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TIMUR MOHAMED,
Plaintiff,
v.
CHICAGO TITLE
INSURANCE COMPANY,
Defendant,
and

Case No. 10-C-0753

REINHART BOERNER VAN DEUREN S.C.,
Defendant and Third-Party Plaintiff,

v.

CARL JOHAN FREER,
Third-Party Defendant

Defendants.

DECISION AND ORDER

Defendant Chicago Title Insurance Company (“Chicago Title”) filed a Civil
Local Rule 7(h) (E.D. Wis.) expedited non-dispositive motion to allow the deposition of thirdparty Defendant Carl Johan Freer (“Freer”). Chicago Title further requests permission to file

its summary judgment motion and supporting documents within ten days from the date of
Freer’s deposition. Freer opposes the motion stating that the September 1, 2012, deadline for
all discovery has passed in this action.
Accepting Freer’s contention that the deadline for discovery has passed, the
Court applies Fed. R. Civ. P. 6(b)(1)(B), which states that the court may retroactively grant a
motion to extend the time for when an act may or must be done by “if the party failed to act
because of excusable neglect.” See also Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459,
464 (7th Cir. 2005) (holding that a party requesting an extension of time to complete discovery
after the deadline is required to show excusable neglect). A court determines whether a party
has failed to act because of “excusable neglect” by considering the relevant circumstances
surrounding the party's omission. Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 362 (7th Cir.
1997). In determining whether “excusable neglect” exists, the Court is to consider a number
of facts, including “the danger of prejudice to the [defendant], the length of the delay and its
potential impact on judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in good faith.”
Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
Although Freer opposes being deposed, he has not articulated any prejudice to
him. While Freer has been a relevant witness in this action since its inception, he did not
become a party until July 20, 2012, when he was served with the Third-Party Complaint. (ECF

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No. 89.) On August 10, 2012, Freer filed a motion to dismiss for lack of personal jurisdiction.
(ECF No. 95.)
On August 17, 2012, a notice for Freer’s August 27, 2012, deposition was served
by Plaintiff Timur Mohamed (“Mohamed”). Freer filed an expedited non-dispositive motion
for a protective order on August 17, 2012, requesting a stay of discovery for an additional 30
days following the resolution of his motion to dismiss. Freer’s deposition was not taken.
The time while Freer’s motion to dismiss for lack of jurisdiction and for a
protective order were pending caused delay in discovery. That delay was not due to any action
by Chicago Title. On October 17, 2012, the Court issued its Decision and Order denying both
of Freer’s motions. (ECF No. 103.)
Thereafter, the parties were jointly scheduling Freer’s deposition, with his
deposition being tentatively scheduled for December 18, 2012. On December 7, 2012,
Chicago Title was advised that the deposition was not going to take place as scheduled and no
alternative date was proposed. That caused further delay until January 15, 2013, when
Chicago Title emailed the parties proposing four dates in February 2013 for Freer’s deposition.
On January 15, 2013, Freer’s counsel responded indicating that he would oppose any attempt
to depose Freer because he believed fact discovery closed for Freer on September 1, 2012.
After conferring with Freer’s attorney on February 6, 2013, in a good faith attempt to resolve
the discovery dispute, Chicago Title filed its motion for leave to depose Freer. Chicago Title
could have and perhaps should have attempted to schedule Freer’s deposition between

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December 7, 2012, and January 15, 2013. However, overall Chicago Title acted in good faith
after learning of the dispute on January 15, 2013. Chicago Title has established excusable
neglect.

Therefore, Chicago Title’s Civil Local Rule 7(h) (E.D. Wis.) expedited

non-dispositive motion for leave to depose Freer is granted. Freer must submit to deposition
no later than Friday February 22, 2013. Furthermore, the dispositive motion deadline for all
parties is changed to March 4, 2013.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Chicago Title’s expedited non-dispositive motion for leave to depose Freer
(ECF No. 110) is GRANTED.
Freer MUST submit to deposition no later than Friday February 22, 2013,
and the dispositive motion deadline for all parties is changed to March 4, 2013.
All remaining provisions of the Court’s March 30, 2012, scheduling order
REMAIN IN EFFECT.
Dated at Milwaukee, Wisconsin this 14th day of February, 2013.
BY THE COURT

_______________________
Hon. Rudolph T. Randa
U.S. District Judge

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