Bloyer, Paul v. KTM North America et al

Filing 79

ORDER granting in part and reserving in part 71 Motion to Compel Discovery and Amend Pretrial Order, or Alternatively, for Summary Judgment; denying 77 Motion to Continue. The motion to compel is GRANTED. The motion to amend the preliminary pretr ial scheduling order is GRANTED. The motion for summary judgment is RESERVED and the court sets the following briefing schedule: Brembo and Bloyer's respective opposition briefs are due 3/18/2015, RPA Offroad L.L.P.'s reply, if any, is due 3/28/2015. Signed by District Judge William M. Conley on 3/5/2015. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PAUL BLOYER,

v.

Plaintiff,

KTM NORTH AMERICA, KTM
SPORTMOTORCYCLE AG, and BREMBO
S.P.A.,

ORDER
13-cv-828-wmc

Defendants,
BREMBO S.P.A.,
Third Party Plaintiff,
v.
COUNTY CYCLE PITSTOP, L.L.C., and
RPA OFFROAD L.L.P.,
Third Party Defendants,
RPA OFFROAD L.L.P.,
Cross-Claimant,
v.
COUNTY CYCLE PITSTOP, L.L.C.,
Cross-Claim Defendant.

The court is in receipt of third party defendant RPA Offroad L.L.P.’s motion to
compel discovery and amend the scheduling order or, alternatively, for summary
judgment. (Dkt. #71.) The motion is directed to both plaintiff Paul Bloyer and third-

party plaintiff Brembo S.p.A. The clerk’s office set a one-week deadline for responding to
the motion of March 3, 2015. 1 Both Bloyer and Brembo failed to respond timely.
Perhaps realizing the precariousness of Bloyer’s position, his new counsel filed
plaintiff’s own motion for a continuance today, suggesting three reasons to excuse the
complete failure to respond to long overdue discovery requests, all of which the court
rejects. (Pl.’s Mot. for Continuance (dkt. #77).) 2 First, plaintiff argues that his new
counsel was retained just one day before RPA Offroad filed its motion to compel. This
excuse is meaningless given that Bloyer had been warned some two months ago when his
prior counsel was allowed to withdraw that he should promptly retain new counsel and
regardless would have to adhere to all impending deadlines. (1/27/15 Order (dkt. #68)
2.)
Second, plaintiff argues that his delay in responding to discovery was because of
the parties’ failure to stipulate to entry of a protective order. This basis has only slightly
more merit than the first excuse. As an initial matter, plaintiff offers no explanation for
the parties’ failure to enter into a basic protective order sooner or plaintiff’s failure to
unilaterally move for such an order, rather than completely ignore his discovery
obligations.

More importantly, Bloyer does not explain his failure to provide non-

privileged written responses to discovery or produce any responsive documents, while
holding back or redacting documents that would have been subject to a protective order.
1

Because RPA Offroad L.L.P. filed a single document containing both the discovery
motions and the motion for summary judgment, a single one-week response deadline was
set. The court, therefore, amends the briefing schedule on the motion for summary
judgment as reflected in the order below.
2

Brembo still has not responded to the motion to compel.
2

Finally, Bloyer represents that the protective order is now in place, and therefore is no
reason for any additional delay.
Third, Bloyer contends that RPA Offroad’s counsel failed to meet and confer.
While this argument might normally have some traction, the difficulty in meeting and
conferring is attributable in part, if not substantial part, to Bloyer’s being between
counsel during much of the time RPA Offroad attempted to obtain discovery and was
preparing its motion.

In any event, Bloyer’s complete failure to respond to RPA

Offroad’s discovery requests has gone on far too long. 3
Accordingly,

ORDER
IT IS ORDERED that:
1) RPA Offroad L.L.P.’s motion to compel discovery and amend the scheduling
order or, alternatively, for summary judgment (dkt. #71) is GRANTED IN
PART AND RESERVED IN PART as follows:
a) The motion to compel is GRANTED.
i. Bloyer has until March 19, 2015, to file: a certification with this
court indicating that he has fully complied by serving written
discovery responses and producing all responsive documents (or
originals for inspection); or a brief explaining why sanctions
should not be entered against him for failure to prosecute,
including dismissal of his action against Brembo.
3

Bloyer represents in his motion today that Brembo and Bloyer had agreed separately to
extend their expert witness disclosures. While the preliminary pretrial conference order
provides that “[t]he parties may agree between themselves to modify these deadlines and
procedures” (Prelim. Pretrial Conf. Order (dkt. #22) ¶ 2), normally this would require an
agreement by all parties. Regardless, any agreed-upon extension between Brembo and
Bloyer does not affect Brembo’s obligations as to its third-party claim against RPA
Offroad.
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ii. Brembo has until March 19, 2015, to file: a certification with
this court indicating that it has produced copies of all responsive
documents (or originals for inspection); or a brief explaining why
sanctions should not be entered against it for failure to
prosecute, including dismissal of its action against RPA Offroad
L.L.P.
b) The motion to amend the preliminary pretrial scheduling order is
GRANTED. RPA Offroad L.L.P. may have until March 30, 2015, to
disclose “respondent expert witnesses.” If RPA Offroad names any
experts by this deadline, Brembo may have until April 20, 2015, to
disclose “rebuttal expert witnesses.”
c) The motion for summary judgment is RESERVED, and the court sets
the following briefing schedule on that motion:
i. Brembo and Bloyer’s respective oppositions to that motion are
due on or before March 18, 2015.
ii. RPA Offroad L.L.P.’s reply, if any, is due on or before March 28,
2015.
2) Plaintiff Paul Bloyer’s motion for continuance (dkt. #77) is DENIED.
Entered this 5th day of March, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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