United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
S. Edwards, Magistrate Judge United States District Court
the Court is the Motion of Plaintiff, Karen Kempf
(“Kempf”), seeking to amend the Case Management
Plan. (DN 35). Defendant, Lumber Liquidators, Inc.
(“Lumber Liquidators”), filed a Response in
opposition. (DN 38). Kempf subsequently filed a Reply. (DN
39). This matter is ripe for adjudication. For the following
reasons, Kempf's Motion to Amend the Case Management Plan
is GRANTED in part and DENIED in part.
August 1, 2016, Kempf filed her Complaint, individually and
on behalf of all others similarly situated, against Lumber
Liquidators. (DN 1). In her Complaint, Kempf alleged that
wood flooring sold by Lumber Liquidators, specifically
Morning Star Bamboo Flooring, was defective. (DN 1 at p.
9-10). Lumber Liquidators filed a Motion to Dismiss, Stay, or
in the Alterative to Transfer the Action. (DN 4). The
District Court denied Lumber Liquidator's Motion. (DN
October 26, 2017, the parties jointly filed their Rule 26(f)
Planning Meeting Report and proposed case scheduling
deadlines. (DN 19). Following a telephonic conference with
the parties during which they discussed the schedule, the
Court entered the Scheduling Order using the expert
disclosure and class certification deadlines as proposed. (DN
25). Pursuant to the Order, Kempf's identification of
expert witnesses was due by September 14, 2018.
(Id.). The deadline for Lumber Liquidators to
identify its expert witnesses was October 15, 2018.
September 13, 2018, the day before the deadline for
Plaintiff's identification of expert witnesses, Kempf
filed the subject Motion to Amend the Case Management Plan
(“Scheduling Order”) seeking a significant
additional period of time in which to disclose expert
witnesses. (DN 35). Kempf's Motion asks the Court to
amend the existing Scheduling Order and “vacate the
deadlines for expert disclosures pending resolution of the
Motion for Class Certification.” (Id. at p.
to the Scheduling Order entered on November 20, 2017,
“Plaintiff's motion for class certification shall
be filed no later than January 15, 2019, with Defendant's
response due no later than February 15, 2019, and
Plaintiff's reply brief due no later than March 12, 2019.
Any sur-reply shall be filed no later than March 21,
2019.” (DN 25 at p. 2). Thus, Kempf now moves the Court
to amend the Case Management Plan such that the
identification of expert witnesses shall not be due until all
motion practice for class certification is complete, and
Plaintiff's Motion for Class Certification is resolved.
(DN 35 at p. 3). As of the date of the filing of this Order,
Kempf has not filed her Motion for Class Certification.
basis for her Motion to Amend, Kempf provides that her
request to modify the Scheduling Order will “promote
judicial efficiency.” (Id. at p. 1). In
support of this argument, Kempf states that discovery is
extensive and ongoing, primarily as a result of Lumber
Liquidators' defense in a parallel class action case in
the Northern District of California, Gold v. Lumber
Liquidators, Inc., No. 3:14-cv-05373-RS. (Id.).
According to Kempf, since the parties began engaging in
discovery, Lumber Liquidators has produced over 800, 000
pages of documents, and additional information is forthcoming
from the defendant. (Id. at p. 1-2). Additionally,
Kempf claims that discovery has revealed complaints to Lumber
Liquidators about the product at issue from more than 150
Kentucky purchasers. (Id. at p. 2). Thus, Kempf argues
that if Plaintiff identified experts prior to the Court
certifying the class, opinions from such experts may be
overly broad or may be missing “critical information
from other class members” in this litigation.
(Id.). Furthermore, Kempf claims that amending the
Scheduling Order as requested would not impact Lumber
Liquidators, because the identification of Defendant's
expert witnesses will likely be the same as those provided in
Motion also appears to fault the Scheduling Order for setting
the deadline for her identification of experts before the
resolution of Plaintiff's Motion for Class Certification.
(Id.) (emphasis added). More specifically, Kempf
argues that the Scheduling Order should be amended because
the Court's ruling on class certification will directly
impact the scope of the case, including the identification of
expert witnesses. (Id.). Further still, Kempf claims
that expert witnesses will not be needed to establish
commonality for class certification purposes. (Id.).
Thus, Kempf asks the Court to grant her Motion to Amend the
Case Management Plan and vacate the expert discovery
deadlines such that the deadlines for expert disclosures
shall be set after the resolution of Plaintiff Motion for
Class Certification. (Id. at p. 3).
Liquidators raises two arguments in its Memorandum in
Opposition. (DN 38). First, Lumber Liquidators argues that
Kempf has not shown good cause to amend the Case Management
Plan as required by Rule 16(b)(4). (DN 38 at p. 4). To
substantiate this claim, Lumber Liquidators contends that
Kempf did not demonstrate diligence to meet the September 14,
2018 deadline for Plaintiff's identification of expert
witnesses. (Id. at p. 5). Lumber Liquidators states
that Kempf has had a significant amount of time to review the
discovery documents that she requested. (Id.). More
specifically, Lumber Liquidators claims that the documents
Kempf filed as exhibits to her Motion to Amend were provided
to Kempf no later than April 2018. (Id.). These
documents, Lumber Liquidators reasons, appear to be
Kempf's justification that good cause exists because the
documents have changed Kempf's theory of the case.
(Id.). However, Lumber Liquidators maintains that
there is no new information in these documents that changes
Kempf's theory of the case or “that necessitates
this total pivot from the previously-ordered and agreed-upon
litigation of this matter.” (Id. at p. 6).
Lumber Liquidators claims that it will suffer undue prejudice
if Kempf's proposed amendment is granted. (Id.).
In particular, Lumber Liquidators contends that if
Kempf's proposed schedule alteration is adopted, Lumber
Liquidators will be prejudiced by litigating a class action
claim without the identification of Plaintiff's expert
witnesses and reports. (Id.). Thus, Lumber
Liquidators requests the Court to deny Kempf's proposed