Opinion
CV-21-08201-PCT-DJH
10-26-2022
Charisse Lewis, et al., Plaintiffs, v. Aramark Sports and Entertainment Services LLC, et al., Defendants.
ORDER
HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Aramark Sports and Entertainment Services LLC's (“Aramark”) Motion to Modify the Scheduling Order (“Motion”) (Doc. 52). Plaintiffs filed a Response opposing the Motion (Doc. 53), which was joined by Third-Party Defendant Larry Meador (Doc. 54). Aramark has filed a Reply (Doc. 55). The Court now issues its ruling.
I. Background
This case arises from a 2019 boating accident on Lake Powell between Aramark's tour boat and a speedboat on which Plaintiff Charisse Lewis was a passenger. As a result of the accident, Ms. Lewis ultimately suffered serious head injuries which are the basis of her claims against Aramark.
Ms. Lewis' injuries arise out the same occurrence that was the subject of Meador v. Aramark Sports and Entertainment Services, LLC, CV19-08345-JJT. Following a bench trial in that matter, on July 16, 2022, Judge Tuchi found the plaintiffs were entitled to judgment on their negligence and punitive damages claims. Id. at Doc. 183.
On February 8, 2022, after reviewing the parties' proposed joint case management report (Doc. 30), the Court entered its Scheduling Order. (Doc. 32). In relevant part, the
Scheduling Order set the following deadlines:
• Fact Discovery: August 26, 2022
• Plaintiffs' Expert Disclosure: September 9, 2022
• Defendants' Expert Disclosure: September 23, 2022
• Rebuttal Expert Disclosure: October 7, 2022
• Expert Witness Deadline: October 14, 2022 (to be scheduled at least five working days before the deadline)(Id.) Upon the parties' request, the Court also referred the parties to a magistrate judge for purposes of conducting a settlement conference to be held on or before November 18, 2022. (Doc. 33).
II. Legal Standards
Federal Rule of Civil Procedure 16(b)(4) states that a scheduling order “may be modified only for good cause and with the judge's consent.” The primary measure of the “good cause” standard is the moving party's diligence, or when the deadline cannot reasonably be met despite the diligence of the party seeking the extension. Advisory Committee Notes to Fed.R.Civ.P. 16 (1983 amendments). The Scheduling Order issued in this matter also reminded the parties that “failure to meet any of the deadline in this Order or in the Federal Rules of Civil Procedure without substantial justification may result in sanctions. If a party seeks an extension of any deadlines set forth in this Order, the party must request the extension prior to the deadline and must set forth good cause for the request. The Court will not extend any deadlines in this Order absent a showing of good cause.” (Doc. 33 at 7).
III. Discussion
On October 14, 2022, Aramark filed the present Motion. Therein, it seeks an order (1) extending its September 23, 2022, expert disclosure deadline “related to any medical examinations to December 16, 2022, or 30 days after the completion of all examinations” and (2) extending the November 18, 2022, deadline to complete mediation to January 19, 2023, or 60 days after the expert disclosure deadline. (Doc. 52 at 3). Aramark says good cause exists to extend these deadlines because Ms. Lewis underwent ankle surgery unrelated to the underlying accident on October 17, 2022 and cannot attend physical examinations until she recovers. (Id.) Aramark says it “intended to complete the defense medical examinations of Ms. Lewis by the end of October pursuant to Plaintiffs' counsel's agreement after the parties engaged in multiple meet-and-confer discussions about the geographic area in which Ms. Lewis would submit to examinations.” (Id.)
Plaintiffs strongly oppose the requested extensions. Plaintiffs say their own experts were disclosed early, on May 16, 2022, so that Aramark could “digest the medical issues in this lawsuit.” (Doc. 53 at 2). Despite having this information, Plaintiffs say that Aramark did not start to discuss scheduling of independent medical examinations (“IME”) of Ms. Lewis until August 22, or just over 30 days prior to Aramark's expert disclosure deadline. After various communications between the parties regarding the number of IMEs and where they were to be conducted, on September 12, 2022, Plaintiffs' counsel says he agreed to allow the IMEs of Ms. Lewis to take place, but they needed “to happen before the end of the month.” (Doc. 52 at 5). In its Reply, Aramark objects to this representation and says Plaintiffs' counsel agreed that Aramark could have until the end of October to complete the IMEs. Aramark says such agreement is evidenced by counsel's October 10 email informing Aramark of Ms. Lewis's October 17, 2022, surgery, and unavailability for an IME. (Doc. 55 at 2 (“If Plaintiffs truly believed the IMEs were to be completed in September, there would have been no need to inform Aramark of her October 17 ankle surgery.”)).
Whatever the terms of a side agreement between Aramark and Plaintiffs regarding Aramark's expert witness deadline, it is clear to the Court that (1) Aramark would not have been able to adhere to the Court's expert disclosure deadline and (2) Aramark never sought approval from this Court for an extension of that deadline. As to the first point, from the record, the Court cannot find that Aramark has been diligent in its attempts to meet the Court's deadlines-or even the parties' deadlines. Aramark does not contest or explain why discussions to schedule Ms. Lewis's IMEs began a mere month before its expert disclosure deadline. And as pointed out by Plaintiffs, despite Plaintiffs' September agreement to allow the examinations to go forward, Aramark had still failed to notice or schedule Ms. Lewis's IMEs by October 10, 2022, when Plaintiffs' notified Aramark of Ms. Lewis's need for surgery. (See also October 7, 2022, email from Plaintiffs' counsel to Aramark's counsel at Doc. 53-4 (noting that although three weeks had passed since the parties agreed on the logistics of the IMEs “nothing has been scheduled”). This is not diligence. There being no good cause to grant the Motion, IT IS ORDERED that Aramark's Motion to Modify the Scheduling Order (Doc. 52) is denied.