Tanner v. State Farm Mutual Automobile Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ANASTASIA TANNER,
Plaintiff,
v.
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Defendant.
Case No. 3:19-cv-00253-SLG
ORDER RE MOTION FOR SIX-DAY EXTENSION TO SERVE EXPERT
REPORTS
Before the Court at Docket 24 is Plaintiff Anastasia Tanner’s Motion for Six-
Day Extension to Serve Expert Reports. Defendant State Farm Mutual Automobile
Insurance Co. responded in opposition at Docket 28. Plaintiff replied at Docket 29.
Oral argument was not requested and was not necessary to the Court’s
determination.
BACKGROUND
Plaintiff initiated this matter in the Superior Court for the State of Alaska,
Anchorage, on March 28, 2019, and Defendant removed the case to this Court on
September 18, 2019.1 On December 13, 2019, the parties filed their joint report
1 Docket 1 at 1.
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for the Rule 26(f) planning meeting.2 On December 27, 2019, the Court entered
a Scheduling and Planning Order, which provided that expert reports were to be
disclosed by June 26, 2020, and which set trial to begin on February 1, 2021.3 On
May 13, 2020, at the parties’ request, the Court extended several pretrial
deadlines, including the deadline for expert reports, which was moved to August
25, 2020.4 Plaintiff now moves for a six-day extension of that August 25, 2020
deadline.5
DISCUSSION
Plaintiff asks the Court to grant a six-day extension to serve expert reports,
having served a report on August 31, 2020, instead of on August 25, 2020, as
required by the Order Extending Pretrial Deadlines at Docket 20.6 Counsel for
Plaintiff states that he erroneously informed Plaintiff’s expert that the deadline for
the report was August 28, 2020.7 Plaintiff contends that her expert was unable to
finish the report by the August 25, 2020 deadline due to other commitments and
2 Docket 15.
3 Docket 16 at 4, 8.
4 Docket 20 at 1.
5 Docket 24.
6 Docket 24 at 1–2.
7 Docket 24 at 1. Plaintiff contends that counsel conflated the July 28, 2020 deadline for
responsive supplemental expert witnesses with the due date for expert reports, as the two
deadlines are next to one another in the Court’s order extending pretrial deadlines. Docket 29 at
4.
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provided his report to counsel on August 28, 2020.8 Counsel served it on
Defendant on Saturday, August 29, 2020.9 Plaintiff maintains that the delay is
harmless because it will not interfere with the February 2021 trial date and
represents that she is “happy to grant a reasonable extension to the defendant” to
depose her expert as needed.10 Plaintiff emphasizes that she had agreed to
Defendant’s earlier request for a 60-day extension to the deadline for expert
reports and now asks for a six-day extension of her own.11
Defendant opposes the request, maintaining that Plaintiff has not
established good cause to modify the scheduling order and that Plaintiff’s counsel
has been “insistent in other matters on enforcing” scheduling deadlines.12
Defendant contends that “fail[ing] to properly calendar the deadline for disclosing
expert reports and advising their expert of the same is not ‘good cause’ for seeking
to extend the deadline after the fact,” analogizing to Haines v. Get Air Tucson.13
In Haines, the defendant had repeatedly sought extensions throughout the
course of the multiyear litigation. After the fact discovery deadline had expired, the
8 Docket 24 at 2; Docket 29 at 4.
9 Docket 24 at 2; Docket 25 at 1–2, ¶¶ 2–5.
10 Docket 29 at 5.
11 Docket 29 at 9–10.
12 Docket 28 at 2.
13 Docket 28 at 2 (citing Case No. CV-15-00002-TUC-RM (EJM), 2018 U.S. Dist. LEXIS 228400,
at *7–8 (D. Ariz. Jan. 30, 2018)).
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defendant then sought an extension of that deadline so as to depose the plaintiff
and his parents.14 The defendant represented that it needed an extension
“because it both forgot to calendar the dates in the revised scheduling order and
because it was waiting for Plaintiff’s counsel to provide dates and times for the
depositions.”15 The District Court for the District of Arizona denied the request,
emphasizing that the case had been pending in federal court for three years, during
which time the defendant “largely ignored the discovery deadlines set in the Court’s
original scheduling order.”16 The district court concluded that the defendant’s
“failure to diligently litigate this matter and then blame Plaintiff’s counsel for its own
failure to proactively schedule the deposition before the deadline expired does not
warrant an extension here.”17 In the instant case, unlike in Haines, Plaintiff has not
demonstrated an ongoing failure to diligently litigate this case.
Defendant also cites to Patriot Rail Corporation v. Sierra Railroad Company,
a decision denying a request for extension of time to serve counter-defendants
under Federal Rule of Civil Procedure 4(m).18 But there, the party seeking the
14 Haines, 2018 U.S. Dist. LEXIS 227400, at *1 (D. Ariz. Jan. 30, 2018).
15 Id. at *6.
16 Id. at *8.
17 Id. at *9.
18 Case No. 2:09-cv-0009-TLN-AC, 2013 U.S. Dist. LEXIS 98629, at *14–15 (E.D. Cal. July 12,
2013).
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extension had “waited over four years to seek relief from the court for its failure to
serve counter-defendants.”19
Finally, Defendant contends that under Federal Rule of Civil Procedure
37(c), expert witnesses cannot testify if their reports are untimely unless the delay
was “substantially justified or harmless,” and that here neither requirement is met.20
Defendant maintains that mixing up deadlines is not a substantial justification, and
that the mix-up is not harmless as they will have to “incur the expense of deposing
the witness and preparing to address his testimony and opinions at trial.”21
Plaintiff responds that excluding her only expert under Rule 37 “would be an
unwarranted litigation ending sanction.”22 Plaintiff cites to Rimbert v. Eli Lilly and
Company, where the Tenth Circuit reversed a district court’s denial of the plaintiff’s
motion for a new scheduling order; the plaintiff sought the modification to identify
a substitute expert after the original expert was excluded from trial.23 Applying a
four-factor test governing review of the court’s refusal to enter a new scheduling
order, the Tenth Circuit concluded that under the “procedural oddities of the case,”
19 Id. at *18.
20 Docket 28 at 4.
21 Docket 28 at 4.
22 Docket 29 at 5.
23 Docket 29 at 2–4 (discussing Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1253–54 (10th Cir.
2011)).
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the district court had abused its discretion in refusing to grant the plaintiff an
opportunity to secure a new expert.24
Plaintiff relies on two additional cases: Wong v. Regents of the University
of California from the Ninth Circuit25 and Sykes v. Melba Creek Mining, Inc. from
the Alaska Supreme Court.26 In Wong, the plaintiff sought to identify additional
expert witnesses after the relevant deadline on the basis that he could not have
anticipated needing those witnesses.27 The Ninth Circuit affirmed the district
court’s denial of the plaintiff’s request on the basis that the plaintiff should have
reasonably anticipated the need for the witnesses.28 The plaintiff in Wong also
argued that the district court’s denial of his request to supplement his expert
witness list violated Rule 37(c). Noting that the Rule 37 “excludes evidence from
an untimely disclosed witness unless ‘the parties’ failure to disclose the required
information is substantially justified or harmless,’” the Ninth Circuit concluded that
the district court had evidently found that the plaintiff’s failure to timely identify
witnesses was without substantial justification, and that the “[d]isruption to the
schedule of the court and other parties [was] not harmless.”29
24 Id. at 1253–54, 1256.
25 Docket 29 at 5 (citing 410 F.3d 1052 (9th Cir. 2005)).
26 Docket 29 at 6 (citing 952 P.2d 1164 (Alaska 1998)).
27 410 F.3d 1052, 1056 (9th Cir. 2005).
28 Id. at 1056, 1060.
29 Id. at 1062.
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In Sykes, the Alaska Supreme Court reversed a trial court’s order denying
the plaintiff’s motion to accept late witness lists, thereby precluding the plaintiff
from calling expert witnesses at trial.30 But here, the Court applies the Federal
Rules of Civil Procedure and looks to Ninth Circuit precedent on procedural law.31
The Court evaluates Plaintiff’s request under Rule 16(b). “Once [a] district
court ha[s] filed a pretrial scheduling order pursuant to Federal Rule of Civil
Procedure 16 which establishe[s] a timetable,” Rule 16 controls.32 Pursuant to
Rule 16(b), a court’s pretrial scheduling order can only be modified “for good
cause.”33 The “good cause” inquiry “primarily considers the diligence of the party
seeking the amendment.”34 “The district court may modify the pretrial schedule ‘if
it cannot reasonably be met despite the diligence of the party seeking the
extension.’”35 While “prejudice to the party opposing the modification might supply
additional reasons to deny a motion, the focus of the inquiry is upon the moving
party’s reasons for seeking modification . . . [and] [i]f that party was not diligent,
the inquiry should end.”36
30 952 P.2d 1164, 1171 (Alaska 1998).
31 See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
32 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992).
33 Fed. R. Civ. P. 16(b)(4); see also Mammoth Recreations, Inc., 975 F.2d at 608.
34 Mammoth Recreations, Inc., 975 F.2d at 609.
35 Id. (quoting Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment)).
36 Id.
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The Court finds that Plaintiff has demonstrated good cause to modify the
scheduling order to extend the deadline for expert reports by six days. While it is
unfortunate that Plaintiff’s counsel misinformed her expert about the deadline for
disclosures, upon realizing her error, Plaintiff was diligent in her efforts to meet the
deadline and was unable to do so as a result of the expert’s other commitments.
Defendant’s expectation that the parties will strictly abide by the Court’s orders is
certainly reasonable; however, Defendant received the expert report just days after
the deadline and has not demonstrated any prejudice as a result of this brief
delay.37
The Court also declines to exclude the expert report as a sanction for
Plaintiff’s failure to comply with discovery deadlines. As the Ninth Circuit has
explained, Federal Rule of Civil Procedure 26(a)(2)(B) “requires the parties to
disclose the identity of each expert witness ‘accompanied by a written report
prepared and signed by the witness’” and Rule 37(c)(1) “gives teeth to these
requirements by forbidding the use at trial of any information required to be
disclosed by Rule 26(a) that is not properly disclosed.”38 However, the information
“may be introduced if the parties’ failure to disclose the required information is
37 The Court is not persuaded that Defendant was harmed by the delay. Although it would likely
benefit if the Court excluded the expert and his report, Defendant did not allege any harm as a
result of the delay itself. Rather, Defendant alleges that it would be harmed if the Court did not
sanction Plaintiff for the delay by excluding the expert’s testimony.
38 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (footnote
omitted).
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substantially justified or harmless.”39 For the same reasons that the Court
concludes that there is good cause to modify the scheduling order, it finds that the
delayed disclosure was harmless.
CONCLUSION
In light of the foregoing, Plaintiff’s Motion for Six-Day Extension to Serve
Expert Reports at Docket 24 is GRANTED.
DATED this 6th day of October, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
39 Id. at 1106–07 (citing Fed. R. Civ. P. 37(c)(1)).
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