Opinion
Civil File No. 02-4794 (PAM/RLE).
August 5, 2004
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff/Counter Defendant C.H. Robinson Company's ("C.H. Robinson") Motion to Strike Defendant/Counter-Plaintiff U.S. Fire Insurance Company's ("U.S. Fire") Motion for Summary Judgment. C.H. Robinson also seeks to strike the expert report of Ed McKinnon and to exclude at trial the testimony of Mr. McKinnon. For the reasons that follow, the Court denies the Motion to exclude the expert report and testimony of Mr. McKinnon, and strikes U.S. Fire's reply memorandum in support of its Motion for Summary Judgment.
BACKGROUND
The pretrial scheduling order in this case was modified four times. Each time the parties jointly requested the modification and stipulated to the changes. The last time the schedule was modified, Magistrate Judge Raymond L. Erickson urged the parties to act diligently and conscientiously to adhere to the schedule, and warned that no further modifications to the scheduling order would be entertained. ( See March 5, 2004 Order at 3.)
Under the final pretrial schedule, C.H. Robinson's expert reports were due May 15, 2004, and Defendants' expert reports were due June 2, 2004. C.H. Robinson submitted its expert reports on May 17, 2004. U.S. Fire submitted one expert report on June 1, 2004, but did not submit the expert report of Ed McKinnon until June 29, 2004.
May 15, 2004 was a Saturday. Thus, C.H. Robinson submitted the reports on the following Monday.
C.H. Robinson and U.S. Fire provide vastly different accounts of their agreement regarding the timing of the McKinnon expert report. C.H. Robinson contends that it agreed not to seek exclusion of the McKinnon expert report so long as C.H. Robinson received the report by June 9, 2004. (See Thornton Aff. ¶ 2; Ex. 1.) In contrast, U.S. Fire maintains that C.H. Robinson agreed not to seek exclusion of the report so long as the report was served within one week after U.S. Fire deposed C.H. Robinson officers. (See Gregg Aff. ¶ 2.) U.S. Fire completed these depositions on June 22, 2004. However, it is not clear whether McKinnon reviewed or relied upon the deposition transcripts when he prepared his report.
The final pretrial schedule further mandated that all dispositive motions "be filed and the Hearing thereon completed" by August 1, 2004. Defendant Zurich American Insurance Company ("Zurich") was unable to secure a hearing date before August 1, 2004, and instead noticed its dispositive motion for August 27, 2004. When scheduling the hearing date, the Court advised Zurich that although the hearing was scheduled for August 27, 2004, all parties were to brief and file all dispositive motions as if the hearing would be heard before the deadline set forth in the final pretrial schedule. Both C.H. Robinson and Zurich filed their respective summary judgment motions on June 17, 2004. U.S. Fire filed its summary judgment motion on June 29, 2004.
DISCUSSION
Adherence to reasonable deadlines is critical to maintain integrity in court proceedings. Engelson v. Little Falls Area Chamber of Commerce, 210 F.R.D. 667, 669 (D. Minn. 2002) (Erickson, Mag. J.) (citations omitted). Consequently, Rule 16 of the Federal Rules of Civil Procedure provides that a scheduling order shall not be modified without a showing of good cause. The good cause standard is "an exacting one, for it demands a demonstration that the existing schedule cannot reasonably be met despite the diligence of the party seeking the extension." North Star Mut. Ins. Co. v. Zurich Ins. Co., 269 F. Supp.2d 1140, 1144 (D. Minn. 2003) (Erickson, Mag. J.) (internal quotations omitted). Carelessness does not excuse dilatoriness and "offers no reason for a grant of relief." Id. Furthermore, good cause does not "turn on the existence of absence of prejudice to the non-moving party." Id.
Local Rule 16.3 serves to further reinforce the need for a party to show good cause when seeking to extend a deadline. The Advisory Committee Notes to Local Rule 16.3 explain that the Rule is "intended to discourage modifying pretrial schedules unless good cause has been shown."
Rule 16 permits the district court to impose sanctions on a party for failing to meet a deadline. Firefighters' Institute for Racial Equality v. City of St. Louis, 220 F.3d 898, 902 (8th Cir. 2000); North Star Mut. Ins. Co., 269 F. Supp.2d at 1144. When a party fails to meet an expert disclosure deadline, Rule 16 is buttressed by the sanctions imposed by Rule 37(c)(1). North Star Mut. Ins. Co., 269 F. Supp.2d at 1145. Rule 37(c)(1) permits the Court to exclude the untimely report and testimony "unless the failure to disclose was either harmless or substantially justified." Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998); see also Fed.R.Civ.P. 37(c)(1); Transclean Corp. v. Bridgewood Servs., Inc., 77 F. Supp.2d 1045, 1064 (D. Minn. 1999) (Erickson, Mag. J.) ("While sanctions under Rule 37(c)(1) are mandatory . . . exclusion of evidence should not apply if the offending party's failure was `substantially justified,' or if the failure was `harmless.'").
In determining whether the exclusion provisions of Rule 37 should apply, the Court considers four factors: (1) the importance of the excluded material; (2) the explanation of the party for failure to comply with the disclosure; (3) the potential prejudice from allowing the material to be used at trial; and (4) the availability of a continuance to cure such prejudice. See Neupak Inc. v. Ideal Mfg. Sales Corp., 168 F. Supp. 2d 1012, 1016 (D. Minn. 2001) (Erickson, Mag. J.) (citingCitizens Bank v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir. 1994)).
A. Motion to Strike Expert Witness Report and Testimony
U.S. Fire disclosed Ed McKinnon as an expert witness in a timely manner. However, it submitted his expert report on June 29, 2004 — nearly four weeks after the June 2, 2004, deadline. C.H. Robinson moves to strike the report and to exclude the testimony of Mr. McKinnon because the report was untimely.
The significant disagreement between the parties regarding the timing of the McKinnon expert report negates any justification for U.S. Fire's delay in submitting the report. Nonetheless, the Court finds that the other factors weigh in favor of U.S. Fire. McKinnon's testimony is important, as it rebuts the testimony of C.H. Robinson's expert and relates to core issues in this litigation, including the relationship, duties and obligations between the insured and insurer, as well as the nature and scope of the U.S. Fire reservation of rights letter. C.H. Robinson will not be severely prejudiced by the untimely submission of the McKinnon report because C.H. Robinson may still depose Mr. McKinnon. See Mathers v. Northshore Mining Co., 217 F.R.D. 474, 483 (D. Minn. 2003) (party not severely prejudiced by untimely supplemental expert report even though it relied on initial report in preparing for summary judgment). Moreover, exclusion of the expert report and testimony is more draconian that the situation calls for. Accordingly, the Court denies C.H. Robinson's Motion to exclude the expert report and testimony.
B. Motion to Strike U.S. Fire's Summary Judgment Motion
C.H. Robinson also moves to strike U.S. Fire's Summary Judgment Motion as untimely. Local Rule 7.1(b)(1) requires the moving party to file and serve a dispositive motion fortyfive days before a hearing date. In this case, the final pretrial scheduling order required dispositive motions to be filed and heard by August 1, 2004. Because of scheduling conflicts between the Court and the parties, the Court scheduled the hearing for August 27, 2004. However, the Court instructed the parties to brief and file their respective motions as required by the scheduling order. Thus, dispositive motions should have been filed by June 17, 2004, and the summary judgment motion filed by U.S. Fire on June 29, 2004, was untimely.
Changes to the Local Rules brought about by Electronic Case Filing, which became effective May 17, 2004, modified filing procedures. Although the Local Rules do not purport to change scheduling orders in any given case, the Local Rules changed the rules for filing of memoranda. The previous procedure was that all memoranda on a motion were filed together and only after briefing was complete would the moving party seek a hearing date from the Court. The new Local Rules now require that the moving party first secure a hearing date with the briefing schedule flowing from that date. Transclean Corp. v. Regional Car Wash Distrib., Inc., File No. 02-1138, 2004 WL 1453509 at *5 (D. Minn. June 18, 2004) (Magnuson, J.).
As this Court explained in Transclean Corp. v. Regional Car Wash Distributors, Inc., File No. 02-1138, 2004 WL 1453509 (D. Minn. June 18, 2004) (Magnuson, J.), the rescheduling of the actual hearing does not toll the scheduling order's dispositive motion deadline absent specific order of the Court. Id. at *5. Both C.H. Robinson and Zurich complied with the June 17, 2004, dispositive motion deadline, but U.S. Fire did not. U.S. Fire contends that it provided C.H. Robinson twenty-five days to oppose its summary judgment motion and therefore met the spirit of the Local Rule. Although the Court finds that U.S. Fire's Motion was untimely, the Court also recognizes that C.H. Robinson was not so prejudiced to warrant striking U.S. Fire's moving papers. Thus, in lieu of striking U.S. Fire's initial memorandum, the Court believes a more reasonable sanction is to strike U.S. Fire's reply memorandum, which was also untimely filed on August 2, 2004.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff/Counter Defendant C.H. Robinson Company's Motion to Strike the Expert Report of Ed McKinnon (Clerk Doc. No. 118) is GRANTED in part and DENIED in part:
1. Plaintiff/Counter Defendant C.H. Robinson Company's Motion to Strike the Expert Report of Ed McKinnon is DENIED;
2. Plaintiff/Counter Defendant C.H. Robinson Company's Motion to Exclude the Testimony of Ed McKinnon is DENIED;
3. Plaintiff/Counter Defendant C.H. Robinson Company's Motion to Strike Defendant/Counter Plaintiff U.S. Fire Insurance Company's Motion for Summary Judgment is GRANTED in part and DENIED in part; and
4. The Court STRIKES Defendant/Counter Plaintiff U.S. Fire Insurance Company's Reply Memorandum of Law in Support of its Summary Judgment Motion (Clerk Doc. No. 143).