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Moore v. Hopkins County

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

July 18, 2018

RICHARD EDWARD MOORE, III PLAINTIFF
v.
HOPKINS COUNTY, KENTUCKY, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          H. Brent Brennenstuhl United States Magistrate Judge

         BACKGROUND

         Plaintiff Richard E. Moore, III, proceeding pro se, has filed a motion for extension of time in which to identify his expert witness (DN 69). Defendants, Advanced Correctional Healthcare, Inc., Deborah Ash, Matthew Johnston, Jodi Blake, Stephanie Utley, Robin Ramburger, Cheryl Connelly, and Jaclyn Gibson (collectively the “ACH Defendants”) have filed a memorandum in opposition (DN 70). Defendants, Joe Blue, Carl Coy, Amber Eagles, Brandon Lampton, Angela Hopper, Jarrett Backhurst, Victoria Davenport, Tracy Griffith, James Manns, Chris Melton, and Adam Qualls (collectively the “County Defendants”) have also filed a memorandum in opposition (DN 71). Moore has filed a reply memorandum (DN 72). For the reasons set forth below, Moore's motion (DN 69) is GRANTED.

         NATURE OF THE MOTION

         On March 17, 2017, Moore, through counsel, filed a complaint asserting causes of action for civil rights deprivations under 42 U.S.C. § 1983, violation of K.R.S. § 71.040 relating to the care of prisoners, common-law medical negligence, intentional infliction of emotional distress and claims of punitive damages (DN 1). With leave of Court (DN 23), Moore, through counsel, filed an amended complaint adding additional defendants (DN 24).

         The scheduling order, filed on June 12, 2017, established deadlines for the completion of pretrial discovery and the filing of both dispositive and Daubert motions (DN 14). In relevant part, the scheduling order specified a January 15, 2018 deadline for Moore's expert witness disclosure (DN 14 ¶ 2).

         On October 31, 2017, Moore's counsel moved to withdraw as Moore's attorney due to irreconcilable differences with Moore (DN 43). On December 7, 2017, Moore's counsel conferred with defense counsel, via email, about extending all of the current deadlines in the scheduling order in expectation that the Court would grant his motion to withdraw and provide Moore time to retain a new attorney (DN 72-1 PageID # 604-10). During this email discussion, counsel for the parties agreed that a telephonic conference should be set up with the Court to discuss both the pending motion to withdraw and modifications to the scheduling order deadlines (Id.).

         On December 13, 2017, the Court conducted a telephonic conference with counsel for Moore and Defendants (DN 49). Discussion focused on both the motion to withdraw and amending the current deadlines in the scheduling order (Id.). The order memorializing the conference granted counsel's motion to withdraw; provided Moore with 30 days to have replacement counsel enter an appearance on his behalf or file a notice indicating he elected to proceed pro se; and STAYED current deadlines in the scheduling order (Id. PageID # 498-99). The ordered also scheduled a follow-up telephonic conference (Id. PageID # 499) that was later rescheduled to January 22, 2018 (DN 48).

         On January 22, 2018, Moore filed a motion requesting an additional 30 days to retain counsel because his medical circumstances had prevented him for being able to do so (DN 54). On that same day, the Court conducted a telephonic conference with Moore and defense counsel participating (DN 55). Following discussion, the Court issued an order granting Moore's request for an additional 30 days to retain counsel (Id.). Additionally, the order amended “current deadlines” in the scheduling order (Id. PageID # 511-13). Specifically, new deadlines were established for Defendants' expert witness disclosures, completion of all pretrial discovery, and the filing of all dispositive and Daubert motions (Id.).

         On March 5, 2018, Moore filed a notice indicating he would proceed pro se until further notice (DN 57). On March 22, 2018, the Court conducted a telephonic conference with Moore and defense counsel participating (DN 59). Discussion focused on Moore's unavailability for his deposition and the resulting delay in completing pretrial discovery (Id.). The Court ordered Moore's deposition be conducted on April 23, 2018, and extended the deadlines for completing all pretrial discovery and filing dispositive and Daubert motions (Id.).

         Three days later, on March 26, 2018, Defendants' jointly moved to extend their current expert disclosure deadline of May 1, 2018 to June 29, 2018 (DN 60). In an order entered on April 5, 2018, the Court granted Defendants' motion and extended their expert disclosure deadline (DN 61).

         On April 24, 2018, Moore and Defendants filed a joint motion to stay the current deadlines in the scheduling order (DN 62). The motion explained that Moore's deposition could not be taken on April 23, 2018, because he was hospitalized on April 19, 2018 with double-pneumonia and sepsis and he may remain in the hospital for at least two weeks (Id.). The motion further explained that the delay in taking Moore's deposition would impact the parties' ability to comply with the current scheduling order deadlines (Id.). In an order entered May 1, 2018, the Court granted the joint motion and stayed all current scheduling order deadlines (DN 63).

         Upon request by Defendants, on June 6, 2018, the Court conducted a telephonic conference with Moore and defense counsel participating (DN 68). Following discussions with Moore and defense counsel, the Court directed Moore to file by June 13, 2018, a motion to amend the scheduling order deadline for his disclosure of an expert witness (Id.). Additionally, the Court ordered that Moore's deposition shall be conducted on August 16, 2018 (Id.).

         Moore filed his motion for extension of time on June 15, 2018 (DN 69). Moore blames health problems and his misunderstanding, regarding extensions to the scheduling order deadlines, for his failure to previously seek an extension of his expert witness disclosure deadline (DN 69). Citing Fed.R.Civ.P. 6(b) and five factors identified by the Sixth Circuit, both sets of Defendants argue that Moore's motion should be denied because he has not demonstrated his failure to timely move for an extension was due to “excusable neglect” (DN 70, 71 citing Nafziger v. McDermott Int'l, Inc.,467 F.3d 514, 522 (6th Cir. 2006) and Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,507 U.S. 380, ...


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