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Hibbs v. Marcum

United States District Court, W.D. Kentucky, Louisville Division

April 10, 2018

GUY JANTZEN HIBBS PLAINTIFF
v.
TIMOTHY TODD MARCUM, et al. DEFENDANTS

          OPINION AND ORDER

          Lanny King, Magistrate Judge.

         Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for ruling on all discovery issues. (Docket # 13). This matter is before the Court on Plaintiff's Motion to Set Definitive Deadlines for Discovery and Expert Disclosures. (Docket # 48). Defendants have responded in opposition and Plaintiff has replied. (Dockets # 50, 52). This Motion is now ripe for adjudication.

         Plaintiff's original Motion (Docket # 48) requested an additional thirty days to conduct the following three categories of discovery: (1) to issue subpoenas to various organizations and agencies through which Defendants received training; (2) to depose Sheriff John Aubrey or a corporate representative regarding training relevant to Plaintiff's claims; and (3) to conduct a second deposition of Defendant Deputy Shipp regarding the “cabinet full of documents” which Deputy Shipp cannot locate. (Docket # 48). Additionally, Plaintiff requested sixty days to identify and disclose experts. (Id.). Defendants' Response argued that Plaintiff's requests were untimely; however, they did not object to Plaintiff's request for additional time to disclose experts. (Docket # 50). In an effort to cooperate, Plaintiff's Reply only requests an extension of time to conduct the first two categories of discovery and the extension of time for expert disclosures. (Docket # 52).

         For reasons detailed below, the Court shall GRANT in part and DENY in part Plaintiff's Motion. (Docket # 48). Plaintiff's request to extend the discovery deadline to allow time to issue subpoenas to third parties regarding Defendants' training and to depose a corporate representative or Sheriff John Aubrey is denied. Plaintiff's request to extend the expert disclosure period is granted. Plaintiff shall have sixty days from the entry of this Order to identify and disclose experts.

         Procedural Background

         On June 21, 2016, the Court entered the initial scheduling order. (Order; Docket # 13). On April 25, 2017, the parties submitted an Agreed Motion For an Extension of Time to File Pretrial Documents and Remand Trial Date. (Docket # 28). On October 5, 2017, the Court entered a second scheduling order, which included the following deadlines: Plaintiff's expert disclosures are due by March 1, 2018; Defendants' expert disclosures are due by April 1, 2018; dispositive motions due by June 8, 2018; discovery closes February 1, 2018; expert discovery closes May 15, 2018; and a final pretrial conference is scheduled with Judge Russell on September 7, 2018. (Order; Docket # 34).

         Defendant Deputy Shipp was deposed in August 2017. It is undisputed that Defendant Shipp testified to keeping numerous training documents from over the years at his house.[1]

         On December 8, 2017, the Court held a telephonic status conference to address Plaintiff's Motion to Compel, which had been filed on October 20, 2017, without leave of Court. (Order; Docket # 38). During the status conference, Plaintiff raised no issue involving the unanswered discovery. The Court granted Plaintiff retroactive leave to file her Motion to Compel. (Order; Docket # 38). In its Order, the Court specifically provided that, “[i]f the Motion to Compel is granted, the parties are instructed to meet and confer, and then contact the Court, to set a call to review the scheduling order.” (Order; Docket # 38). On February 20, 2018, the Court denied Plaintiff's Motion to Compel. (Order; Docket # 41).

         On February 1, 2018, Judge Russell referred this case to Judge King for settlement. (Order; Docket # 40).

         On March 1, 2018, the Court held a second telephonic status conference. (Order; Docket # 43). During the status conference, Plaintiff advised the Court that he had previously requested all of the training documents that Defendant Deputy Shipp testified to acquiring over the years and keeping in his house. Defendants agreed to produce the requested materials and the Court ordered Plaintiff to review the materials prior to the next scheduled status conference on March 16, 2018. (Order; Docket # 43). Prior to March 16, 2018, Defendants informed Plaintiff that Deputy Shipp could not locate any of the training materials.

         On March 16, 2018, Plaintiff filed this Motion, effectively amending his initial motion to set new, definitive deadlines for discovery and expert disclosures that was filed on March 12, 2018. (Docket # 48). Plaintiff requests this Court to extend the fact discovery deadline and Plaintiff's expert disclosures deadline. Plaintiff requests thirty days to (1) issue subpoenas to various organizations that provided Defendants with training materials regarding traffic stops, use of force, and arrests, and (2) depose Sheriff Aubrey or a corporate representative regarding training relevant to Plaintiff's claims. Plaintiff requests sixty days for expert disclosures.

         Legal Standard

         Federal Rules of Civil Procedure 16(b)(4) provides that a scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). District courts have broad discretion in managing the discovery process and controlling their dockets. Marie v. Am. Red. Cross, 771 F.3d 344, 366 (6th Cir. 2014). The Sixth Circuit has established a number of factors for district courts to consider when determining whether good cause exists to modify a discovery schedule, including: “(1) when the moving party learned of the issue that is the subject of discovery; (2) how the discovery would affect the ruling below; (3) the length of the discovery period; (4) whether the moving party was dilatory; and (5) whether the adverse party was responsive to . . . prior discovery requests.” Bentkowski v. Scene Magazine, 637 F.3d 689, 696 (6th Cir. 2011) (quoting Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010)). The primary measure of these factors and the good cause standard, however, is “whether the moving party was diligent in pursuing discovery.” Bradford v. Shrock, No. 3:11CV-00488-DJH, 2017 WL 3444801, at *2 (W.D. Ky. Aug. 10, 2017) (citing Marie, 771 F.3d at 366) (additional citation omitted)).

         The court should also consider whether there would be any prejudice to the party opposing the modification of the discovery schedule. Id. (citing Inge v. Rock Financial Corp., 281 F.3d 613, 625 (6th Cir. 2002) (additional citation omitted)). However, while prejudice is a factor to be considered, it is not a controlling one. Needler v. Coca-Cola Refreshments USA, Inc., 3:13-CV-781-CRS, 2014 WL 8275991, at *3 (W.D. Ky. Nov. 19, 2014), modified, 3:13-CV-781-CRS, 2015 WL 1346783 (W.D. Ky. Mar. 24, 2015). Moreover, the party that fails to show good cause will not be accorded relief under Rule 16(b)(4) merely because the opposing party will not suffer substantial prejudice as a ...


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