Watt v. All Clear Business Solutions, LLC , 840 F. Supp. 2d 324 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
GEORGE J. WATT, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 10-595 (RWR)
)
ALL CLEAR BUSINESS SOLUTIONS )
LLC, )
)
Defendant. )
_____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff George J. Watt has moved to reopen discovery for
the limited purpose of designating economic expert Dr. Richard
Lurito to project the present value of Watt’s future medical
costs. Defendant All Clear Business Solutions, LLC (“All Clear”)
opposes the motion, arguing that Watt has failed to comply with
court-ordered discovery deadlines and that allowing this
additional expert will considerably delay trial. Magistrate
Judge Alan Kay recommends that the motion be granted. Though
Watt’s delay was avoidable, there is good cause to repen
discovery and Watt’s motion will be granted.
BACKGROUND
Watt’s complaint asserts one negligence claim against All
Clear, arising from the company’s alleged failure properly to
secure a filing cabinet its employees were unloading from a
truck. (Compl. ¶¶ 9, 11.) The filing cabinet fell, struck Watt,
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and caused him injuries, including a permanent back injury, which
resulted in “medical expenses and other economic loss.” (Id.
¶ 12.) The August 6, 2010 scheduling order set December 5, 2010
as the deadline for the close of discovery. On Watt’s motion,
and with All Clear’s consent, the discovery deadline was
continued to January 5, 2011. The parties later requested and
were granted a further continuance until April 11, 2011. During
the April 15, 2011 post-discovery status conference, the parties
reported that discovery was complete. They pursued private
mediation, unsuccessfully, in June.
At the pre-trial conference before Magistrate Judge Kay in
September, Watt stated that he had hoped the parties would
stipulate to the present value of his future medical treatment,
but that they had not reached an agreement. Report and
Recommendation [Docket 22] at 1. Accordingly, on September 27,
2011, Watt moved to reopen discovery by supplementing his expert
designations with an economic expert. (Pl.’s Mem. in Supp. of
Pl.’s Mot. to Reopen Disc. (“Pl.’s Mem.”) at 1.) In his motion,
Watt explains that he had “expect[ed] that the case would settle
prior to the need for incurring the additional cost of this
expert[,]” that “[p]ermitting the relief sought . . . would more
fully permit the trial of this case on its merits[,]” and that
adding Dr. Lurito would “not materially prejudice [All Clear’s]
trial preparation.” (Id. at 3.)
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All Clear argues in opposition that adding Dr. Lurito as an
economic expert will cause considerable delay, and that Watt has
proffered no legitimate reason for filing his motion on this late
date. (Def.’s Opp’n ¶¶ 3, 5.) However, Magistrate Judge Kay
recommends granting Watt’s motion and denying All Clear’s request
for a hearing. Report and Recommendation [Docket 22] at 1. “No
prejudice will result from reopening discovery for this limited
purpose, as a trial date has not been set in this case. All
Clear will have ample time to review the expert’s report, and if
necessary, depose the expert.” (Id. at 2.) Neither party has
objected to the magistrate judge’s report and recommendation.
DISCUSSION
“A [scheduling order] may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
“[R]eopening discovery . . . [therefore] require[s] a showing of
good cause[.]” U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of
Am., 576 F. Supp. 2d 128, 133 (D.D.C. 2008) (citation omitted);
accord LCvR 16.4 (“The court may modify the scheduling order at
any time upon a showing of good cause.”). “What constitutes good
cause . . . necessarily varies with the circumstances of each
case.” 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure (“6A Wright Miller & Kane”)
§ 1522.2 (3d ed. 2010). Good cause can be shown, “[i]n general,
if the party seeking relief can show that the deadlines cannot
reasonably be met despite the party’s diligence[.]” Id.; see
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also Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,
630 F.3d 217, 226 (D.C. Cir. 2011) (quoting 6A Wright Miller &
Kane § 1552.1 (2d ed. 1990) (citation omitted)). Courts have
considered multiple factors when determining whether to grant
motions to reopen discovery. These include “(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 allotted by the
district court; and (6) the likelihood that the discovery will
lead to relevant evidence.” Childers v. Slater, 197 F.R.D. 185,
188 (D.D.C. 2000); see also Smith v. United States, 834 F.2d 166,
169 (10th Cir. 1987); Vineberg v. Bissonnette, 548 F.3d 50, 55
(1st Cir. 2008). “[W]hether to . . . reopen discovery is
committed to the sound discretion of the trial court[.]”
Childers, 197 F.R.D. at 187 (internal quotation marks and
citation omitted).
Watt has not demonstrated that he could not reasonably have
completed discovery by the established deadline. See Capitol
Sprinkler Inspection, Inc., 630 F.3d at 226; Gotlin v. Lederman,
No. 04-CV-3736, 2009 WL 2843380, at *7 (E.D.N.Y. Sept. 1, 2009).1
1
In Gotlin, the court denied the plaintiff’s request to
reopen discovery where he “had ample opportunity to produce the
Records prior to the close of expert discovery, and can offer no
reason why the deadline for expert discovery, which was
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After the December 2010 deadline for the close of discovery was
set, Watt twice successfully moved to continue it. However,
during the more than eight months between August 6, 2010, when
the scheduling order was entered, and the April 11, 2011 final
discovery deadline, Watt never sought to designate Dr. Lurito as
an economic expert. He cites no authority for the proposition
that merely hoping for or anticipating settlement and
stipulations excuses his failure to meet court-ordered deadlines.
(See Def.’s Opp’n ¶ 4.)
On balance, the Childers factors nonetheless weigh in Watt’s
favor. See Childers, 197 F.R.D. at 187; Smith, 834 F.2d at 169.
On the one hand, Watt appears to concede that he did not
diligently “obtain[] discovery within the guidelines established
by the court.” Smith, 834 F.2d at 169. (See Pl.’s Mem. at 1
(“Mr. Watt regrets filing this motion at this time[.]”).) See
also Bakalar v. Vavra, No. 05 Civ. 3037, 2011 WL 165407, at *4
(S.D.N.Y. Jan. 14, 2011) (citing Trebor Sportswear Co., Inc. v.
The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (“A
significant consideration is whether there has already been
adequate opportunity for discovery.”) Watt also reasonably could
have foreseen “the need for additional discovery in light of the
time allowed for discovery[.]” Smith, 834 F.2d at 169. The need
for an expert’s projection of the present value of Watt’s future
repeatedly extended at [his own] behest, could not have
reasonably been met.” Gotlin, 2009 WL 2843380, at *7.
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medical costs should have been apparent from the outset of the
litigation.
On the other hand, no trial date has been set. Although All
Clear opposed Watt’s motion, the opposition does not describe any
significant prejudice All Clear would suffer from reopening
discovery for the limited purpose of adding an economic expert.
In re Christou, Bankruptcy Nos. 06-68251-MHM, 06-68376-MHM, 2008
WL 7880888, at *1 (Bkrtcy. N.D. Ga. Nov. 30, 2008) (“Defendant
has presented no specific evidence of prejudice except the mere
passage of time.”) Nor has All Clear objected to the magistrate
judge’s recommendation to grant Watt’s motion. Finally, it seems
likely that the additional expert discovery as to Watt’s future
medical costs will lead to relevant evidence of the scope of the
damages at issue, and All Clear will have a fair opportunity to
meet the new evidence. Watt’s motion, then, will be granted.
CONCLUSION AND ORDER
Watt has not justified his failure to supplement his expert
designations before now. However, there is good cause for a
limited reopening of discovery. Accordingly, it is hereby
ORDERED that the plaintiff’s motion [19] to reopen discovery
be, and hereby is, GRANTED. Plaintiff shall have 15 days from
the entry of this Order to designate Dr. Richard Lurito as an
expert and serve All Clear with any report by Dr. Lurito. All
Clear shall have until 45 days after entry of this Order to
depose Dr. Lurito. It is further
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ORDERED that the parties file a joint status report and
proposed order within 7 days after the magistrate judge enters
the Local Civil Rule 16.5(a)(3) Pretrial Order. See Partial
Scheduling Order ¶ 3. The joint status report shall include
three mutually agreeable dates on which the trial can begin.
SIGNED this 13th day of January, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge