Opinion
Civil Action NO: 00-0629
July 12, 2001
ORDER AND REASONS
Plaintiff Thomas E. Johnson has filed a motion to continue and defer the hearing on Lawson Lawson Towing Company, Inc.'s Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(f). Johnson claims that discovery has not been completed. Defendant Lawson Lawson opposes the motion, arguing that all discovery relevant to the single summary judgment issue of whether it is negligent as a matter of law to require a seaman to lift 31 pounds without assistance has been completed. Lawson claims that the only discovery necessary is the deposition of the plaintiff, the deposition of Captain David Cavitt, and a vessel inspection of the M/V HENRY B, all of which has occurred.
The district court does not grant continuances pursuant to Rule 56(f) of the Federal Rules of Civil Procedure as a matter of course. "The nonmoving party must show how the additional discovery will defeat the summary judgment motion, that is, will create a genuine dispute as to a mateial fact, and may not simply rely on vague assertions that additional discovery will produce needed, but unspecified facts" Allen V. United States Postal Service, 1997 WL 587761, *2 (E D. La. 1997) (citing International Shortstop, Inc. v. Ralley's Inc., 939 F.2d 1257, 1267 (5th Cir. 1991)). Moreover, if "the nonmoving party has not dingently pursued discovery of that evidence, the court need not accommodate the nonmoving party's belated request." Id.
The trial in this case is only a few weeks away, and plaintiff has had ample time to obtain discovery. Plaintiff alleges that defendant has not fully complied with requests for production and that responses to interrogatories have not been completed. (Pl.'s Mot. to Continue summary J., Aff. Koerner, ¶ 7. ¶ 8.) Plaintiff attaches letters detailing his efforts at completing discovery. However, he has never sought court assistance to compel discovery responses. Further, plaintiff conclusorily asserts that the purpose of the pending discovery is to "demonstrate the unseaworthiness of the vessel and the negligence of the defendant as well as to impeach the credibility of witnesses relied upon by Lawson Lawson." Plaintiff, however, has not shown how additional discovery will defeat a summary judgment motion on the sole issue of whether it was negligent as a matter of law to ask a seaman to lift 31 pounds without assistance, i.e., how it will create a genuine dispute as to material fact. See International Shortstop, 939 F.2d at 1268 (holding that the court erred in denying a continuance when the discovery sought pertained directly to the privilege issue which was the focus of the summary judgment motion) (emphasis added). Plaintiff has inspected the vessel and deposed the captain of the vessel and defendant's corporate representative. Plaintiff points to no specific facts that he expects to gain from additional discovery that are relevant to this one issue of negligence or how any of the discovery he has sought but not obtained has any bearing on the issue before the Court. Therefore, the Court denies plaintiff's motion to continue the hearing on the motion for summary judgment.
ORDER AND REASONS
Defendant submits a motion to strike plaintiff's expert witness, Bobby S. Roberts, from plaintiff's witness list, to preclude him from presenting any expert testimony, and to preclude any other witness from testifying regarding the subject matter of Roberts' report. For the reasons stated below, the Court denies the motion.
I. DISCUSSION
Defendant moves to preclude the testimony of Bobby Roberts a vocational rehabilitation expert. The deadline for submitting expert reports was April 25, 2001. Instead, plaintiff submit the report of Bobby Roberts on June 1, 2001. Trial is set for August 6, 2001.
Rule 16 of the Federal Rules of Civil procedure gives this Court broad discretion concerning scheduling matters. See Fed.R.Civ.P. 16. Under the Court's scheduling order, expert reports were due April 25, 2001. Plaintiff clearly missed that deadline, but claims to have acted on the belief that defendant agreed to an informal extension. The Court finds that it is in the interests of justice to allow plaintiff to submit the expert report. The length of delay was not substantial, and defendant does not demonstrate that this delay prejudiced it in any way. Defendant had already retained a vocational rehabilitation expert. Therefore, the Court excuses plaintiff's delay in filing his expert report, provided the witness is made available for deposition by defendant before August 1, 2001.