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Kempf v. Lumber Liquidators, Inc.

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

January 18, 2019



          Regina S. Edwards, Magistrate Judge United States District Court

         Before 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.


         On 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 14).[1]

         On 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. (Id.).

         Kempf's Motion

         On 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. 1).

         Pursuant 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.

         As the 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.[2] (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.[3] (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 Gold. (Id.).

         Kempf's 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).

         Lumber Liquidators' Response

         Lumber 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).

         Second, 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 ...

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