United States District Court, W.D. Kentucky, Bowling Green Division
TAMMY A. GARRISON PLAINTIFF
SAM'S EAST, INC. DEFENDANT AND XEROX RECOVERY SERVICES INTERVENING PLAINTIFF
MEMORANDUM, OPINION, AND ORDER
BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE
the Court is the motion of Plaintiff Tammy A. Garrison, DN
48, for amendment of the scheduling order. Intervening
Plaintiff Xerox Recovery Services has joined in
Garrison's motion without additional argument at ¶
50. Defendant Sam's East, Inc. has responded in
opposition at ¶ 51. Garrison has not filed a reply.
of the Case and Procedural History
27, 2015 Garrison fell while shopping at Defendant Sam's
merchandise membership club. She claims that she slipped in
an unknown liquid and sustained physical injuries (DN 1-1).
Garrison initiated this lawsuit in state court on July 22,
2016, and Sam's removed the action to federal court on
September 20, 2016. The first scheduling order was entered on
December 6, 2016. The scheduling order was thereafter amended
by agreement of the parties to extend the fact discovery
deadline to September 29, 2017 (DN 18). The parties
subsequently amended the scheduling order by agreement to
extend the deadline for identification of Garrison's
expert witnesses to November 30, 2017 and completion of
expert witness discovery depositions by April 2, 2018 (DN
20). A third agreed amendment to the scheduling order
extended Sam's expert identification deadline to February
22, 2018 and completion of expert witness discovery to April
23, 2018 (DN 24).
filed her expert witness disclosure on November 30, 2017, the
deadline for doing so. Sam's filed a motion to strike the
expert witness designation and preclude the witnesses from
testifying (DN 38). The undersigned granted the motion in
part and denied the motion in part (DN 38), ruling that
Garrison had failed to comply with Fed.R.Civ.P.
26(a)(2)(C)(ii) in her expert witness disclosure and
exclusion of those witnesses' testimony as experts was
appropriate under Rule 37. The ruling provided, however, that
the treating healthcare providers could still offer testimony
as fact witnesses as to Garrison's care and treatment.
18, 2018 Garrison's counsel filed a motion to withdraw,
stating that his client had advised him that she wished to
terminate his representation (DN 36). After entry of the
order granting Sam's motion to strike Garrison's
expert witnesses, Garrison's attorney filed an objection
under Fed.R.Civ.P. 72(a) (DN 40). The parties filed a joint
motion to extend the still-pending deadlines for
Daubert and dispositive motion submission (DN 35)
and the undersigned granted the motion and extended the
deadlines to July 30, 2018 (DN 41). The undersigned also
granted the motion of Garrison's counsel to withdraw and
gave her a month, to July 2, 2018, in which to retain
replacement counsel or advise the court she wished to proceed
pro se (Id.).
27, 2018 Garrison filed a request for further extension of
time to retain replacement counsel (DN 43). The undersigned
granted the request and extended the deadline to August 1,
2018 and remanded the deadlines for filing Daubert
and dispositive motions (DN 46). Garrison's current
counsel made a timely entry of appearance on July 18, 2018.
On August 6, 2018 Garrison, through her new counsel, filed
the subject motion to reopen discovery and establish new
deadlines for identification of expert witnesses (DN 48).
asks that new deadlines be established so that she may
re-open discovery and identify expert witnesses. She explains
that it was not until she participated in a settlement
conference with the court on May 11, 2018 that she learned
that the time for taking discovery had expired and her former
counsel had not taken any discovery depositions. She also
learned that there was a pending motion related to exclusion
of her expert witnesses (DN 48, p. 2). She terminated prior
counsel's representation because she was dissatisfied
with his performance. She notes that she now has new counsel
who is “ready and willing to diligently pursue
Plaintiff's claims on her behalf” (Id.).
She notes that no trial date is set in the case and believes
defendant will not be prejudiced by the scheduling revision.
notes that Garrison's motion comes almost two years since
she initially filed the action and that it has incurred
significant cost and attorney fees in defending up to this
point, including responding to Garrison's written
discovery requests, taking her deposition, retaining an
expert medical witness who conducted a records review and an
independent medical examination, preparing for both a
settlement conference which Garrison cancelled two days in
advance and a subsequent conference before the undersigned,
as well as preparing various motions in the case. Sam's
contends the only justification Garrison offers for why she
should be permitted to amend the schedule is that her prior
counsel failed to conduct the discovery she now wishes to
take through replacement counsel.
contends that Garrison has failed to demonstrate good cause
justifying amendment of the scheduling order as required by
Rule 16(b)(4). Sam's also argues that amendment of the
scheduling order will act to its prejudice, as it has worked
diligently to meet the prior deadlines and amendment at this
late date will only serve to reward Garrison's dilatory
prosecution of the case.
Civ. P. 16(b)(4) provides that a schedule "may be
modified only for good cause and with the judge's
consent." "'The primary measure of [Civil] Rule
16's 'good cause' standard is the moving
party's diligence in attempting to meet the case
management order's requirements,' though courts may
also consider prejudice to the nonmoving party."
Smith v. Holston Med. Grp., P.C., 595 Fed.Appx. 474,
478 (6th Cir. 2014) (quoting Inge v. Rock Fin.
Corp., 281 F.3d 613, 625 (6th Cir. 2002)). The Court
must first find that the moving party proceeded diligently
before considering whether the nonmoving party is prejudiced,
and only then to ascertain if there are any additional
reasons to deny the motion. Id. at 479. The
"good cause" standard "primarily considers the
diligence of the party seeking the amendment. In other words,
in order to demonstrate 'good cause' a party must
show that despite their diligence the time table could not