Opinion
Case No. 99-1418-MLB.
March 13, 2001.
MEMORANDUM AND ORDER
This action for malicious prosecution is before the court on plaintiff's motion for an extension of time (Doc. 92). Plaintiff seeks an extension of time to designate an expert witness regarding defendants' accounting practices. Defendants oppose the motion. For the reasons stated below, the motion shall be DENIED.
Background
The Scheduling Order (Doc. 30) established a March 31, 2000 deadline for plaintiff's Rule 26(a)(2) expert disclosures. That date passed without any designation or request for an extension of time by plaintiff to provide expert witness disclosures. On October 26, 2000, court and counsel revisited the Scheduling Order and the parties were ordered to submit a motion to amend the Scheduling Order. The parties then filed a joint motion on November 6 and the Scheduling Order was amended to extend discovery to February 28, 2001 (Doc. 83). However, the joint motion reflected defendants' opposition to any extension of plaintiff's March 31, 2000 expert witness deadline. Because of defendants' objection, plaintiff stated that a separate motion would be filed to justify its belated expert witness disclosure.
Notwithstanding plaintiff's expressed intentions, no motion concerning expert witnesses was filed. Plaintiff served its final witness list on January 10, 2001 in which for the first time it listed Gary Gibbs, an accountant, as an expert witness. Defendants objected to the listing of Gibbs as an expert based on plaintiff's failure to provide an expert witness report. Attempting to cure this deficiency, plaintiff filed the present motion on February 15, 2001 for an extension of time to provide expert witness disclosures. Attached to plaintiff's motion is an expert report from Gary Gibbs, dated February 14, 2001.
Analysis
Plaintiff fails to specify any legal basis for its requested extension of time. Fed.R.Civ.P. 6(b) provides for an enlargement of time after the expiration of the specified period where the act was the result of "excusable neglect." "Excusable neglect" is an "elastic concept" and the court considers "all relevant circumstances surrounding the party's omission." Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 394-95 (1993). Four specific factors that courts frequently consider are:
(1) the danger of prejudice to the other side;
(2) the length of the delay and its potential impact on the proceedings;
(3) the reason for the delay and whether it was in the control of the party; and
(4) whether the movant acted in good faith.
Id. A party's control over the circumstances of the delay is "a very important factor, perhaps the most important single factor, in determining whether neglect is excusable." Thomas v. Unified School District No. 501, 177 F.R.D. 488, 489 (Kan. 1997) (citations omitted). Moreover, the party "seeking to establish excusable neglect must plead and prove it." Fernandez v. U.S., 169 F.R.D. 372, 374 (Kan. 1996) (emphasis added).
An alternative and related basis for plaintiff's motion is a showing of "good cause." Fed.R.Civ.P. 16(b) requires that a schedule not be modified except upon a showing of good cause. Some showing of good faith on the party seeking the enlargement and some reasonable basis for noncompliance within the time limit specified are normally required to show good cause.Gonzales v. IBP. Inc., Case No. 95-1323, 1997 WL 109706 (Kan., Feb. 28, 1997).
Plaintiff has failed to carry its burden of establishing either excusable neglect or good cause. The delay in designating an expert report (March 31, 2000 to February 15, 2001) is substantial and plaintiff proffers no explanation why it waited until two weeks before the close of discovery (February 28) and three weeks before the final pretrial conference (March 5) to seek an extension for its expert designation. The delay in moving for an extension is particularly troublesome because plaintiff acknowledged the need for relief at the status conference on October 26 and again in the joint motion to amend the Scheduling Order (filed November 6, 2000). The report by Mr. Gibbs discusses the application of generally accepted accounting principles to defendants' 1993-96 SEC filings. No reason is offered to explain the delay in submitting the report on the eve of the discovery cutoff and final pretrial conference. Defendants have prepared their defense without the benefit of plaintiff's accounting expert and will be prejudiced by plaintiff's belated attempt to designate the expert. Because plaintiff has failed to show excusable neglect or good cause, the motion shall be denied.
IT IS THEREFORE ORDERED that plaintiff's motion for an extension of time to designate an expert (Doc. 92) is DENIED.