Opinion
Case No. 2:09-CV-351.
December 7, 2010
OPINION AND ORDER
This matter is before the Court for consideration of the Defendant American National Red Cross's Motion to Strike, Doc. No. 51, and the Plaintiffs' Motion to Amend Case Schedule or for Leave to Dismiss without Prejudice, Doc. No. 55, and Supplemental Motion for Leave to Dismiss without Prejudice, Doc. No. 57. For the reasons that follow, Defendant's motion is denied; Plaintiffs' motions are granted and denied, respectively.
I.
On October 1, 2010, this Court addressed the parties' motions to amend the case schedule. The Court extended the discovery completion date to November 12, 2010 and the dispositive motion filing deadline to December 15, 2010. Opinion and Order, Doc. No. 47, at 8. Plaintiffs were also granted to October 18, 2010 to designate a new expert witness on the condition that "Plaintiffs . . . offer a date certain — no later than November 5, 2010 — for that expert's deposition." Id. at 9.
On October 18, 2010, Plaintiffs filed a Disclosure of Additional Expert Witnesses, Doc. No. 50, but failed to provide a date for that expert's deposition. Counsel for Defendants inquired as to the omission, but Plaintiffs made no response. Defendants thereafter moved to strike the disclosure of Plaintiffs' expert for failure to identify a date certain for the deposition.
In response, Plaintiffs' counsel states that the identified expert, Ms. Sheryl Whitlock, was not available for deposition prior to November 5, 2010. Plaintiffs' Memorandum contra, Doc. No. 55, at 1. In their Supplemental Motion for Leave to Dismiss without Prejudice, Doc. No. 57, Plaintiffs state that they "did not know, on October 18th, that [the expert] would not be available [for deposition]" prior to November 5, 2010. Id. at 1. Plaintiffs' counsel maintains that he has acted in good faith in attempting to secure an expert witness and to schedule a deposition date. Although there is no indication in the filings as to when Ms. Whitlock may be available for deposition, Plaintiffs seek to amend the case schedule to allow additional time to schedule the deposition. Plaintiffs also seek to extend the time to respond to the pending Motion for Summary Judgment. In the alternative, Plaintiffs move to dismiss this action without prejudice.
Defendants oppose amendment of the case schedule and maintain that the expert identification should be stricken. Defendants also oppose Plaintiffs' alternative motion to dismiss this action without prejudice.
II.
At the outset, the Court notes its displeasure with Plaintiffs' failure to provide a date certain for the deposition of the recently identified expert. Although the Plaintiffs' proposed expert witness undoubtedly has a busy schedule, securing a date for her deposition is critical to this Court's case schedule. Given the stage to which this action has progressed, and the fact that Plaintiffs have now identified an expert, the Court is not inclined to dismiss this action without prejudice.
Although the Court does not condone Plaintiffs' failure to strictly adhere to the Court's October 1, 2010 Order, the Court finds that amendment of the case schedule comports with Fed.R.Civ.P. 16(b)(4), which provides that a scheduling order may be modified "for good cause and with the judge's consent." Thus, the Court will amend the case schedule so that this case may proceed to a decision on the merits.
To this end, Plaintiffs shall have until December 13, 2010 to identify a date certain — no later than January 14, 2010- for the deposition of their expert witness, Ms. Whitlock. Plaintiffs must also produce to Defendants an expert report consistent with the provisions of Fed.R.Civ.P. 26(a)(2) by December 13, 2010. If the parties encounter any problems in meeting this schedule, counsel shall immediately seek a conference with the Court.
The discovery deadline is EXTENDED to January 21, 2011. Any additional dispositive motions may be filed by February 18, 2011. Plaintiffs shall have until January 24, 2011 to make substantive response to Defendant's Motion for Summary Judgment.
Plaintiffs' Motion to Amend Case Schedule, Doc. No. 55, is GRANTED as set forth above. Plaintiffs' alternative Motions to Dismiss without Prejudice, Doc. No. 55 and Doc. No. 57, are DENIED. Defendants' Motion to Strike, Doc. No. 51, is DENIED. December 7, 2010 DATE