Kendall Dealership Holdings, LLC v. Warren Distribution, Inc.

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KENDALL DEALERSHIP HOLDINGS, )
LLC, )
)
Plaintiff, )
vs. )
)
WARREN DISTRIBUTION, INC., )
)
Defendant. )
_______________________________________)
)
WARREN DISTRIBUTION, INC., )
)
Third-Party Plaintiff, )
) No. 3:18-cv-0146-HRH
vs. )
)
ELECTRICAL COMPONENTS )
INTERNATIONAL, INC., and ELECTRICAL )
COMPONENTS CANADA, INC., )
)
Third-Party Defendants. )
_______________________________________)
O R D E R
Motion to Enlarge Time
Third-party defendants Electrical Components International, Inc. (“ECI”) and
Electrical Components Canada, Inc., (“ECC”) move to enlarge the time within which a
discovery motion might have been filed.1 Defendant Warren Distribution, Inc. joins in the
motion.2 The motion is opposed by plaintiff Kendall Dealership Holdings, LLC.3 Oral
argument has not been requested and is not deemed necessary.
1Docket No. 226.
2Docket No. 233.
3Docket No. 241.
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A Rule 16 scheduling order was entered in this case on August 3, 2018.4 Discovery
motions were to have been filed by April 24, 2019. Motions in limine and Daubert motions
were to have been filed thirty days following the court’s decision on any pending dispositive
motions. At the request of the parties, several extensions of time were requested and
approved. By order of October 22, 2020,5 the court granted ECI/ECC’s unopposed, late-filed
motion to extend the time for filing discovery motions to October 16, 2020.
On October 19, 2020, defendants jointly moved in limine to exclude the testimony of
plaintiff’s expert, Sean Shideh.6 The motion was “made pursuant to FRCP 26(a)(2)(B) and
Rule 37(b)(2)(A)(i-vii).”7 The motion was opposed, and in due course, oral argument was
scheduled and heard as to defendants’ motion for summary judgment and the motion in
limine to exclude Shideh’s testimony.
At oral argument, the focus of defendants’ argument on the motion in limine was
various alleged discovery problems. By order of April 13, 2021,8 the court ruled that “[t]he
instant motion [to exclude the expert testimony of Sean Shideh] is a discovery motion, not
a motion in limine as defendants contend.”9 The court ruled that the deadline for discovery
motions was October 16, 2020, and that, because the motion to exclude testimony was filed
on October 19, 2020, it was untimely. Thus, the court denied defendants’ motion in limine
to exclude the testimony of Shideh.
4Docket No. 11.
5Docket No. 135.
6Docket No. 130.
7Id. at 2.
8Docket No. 223.
9Id. at 4.
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Pursuant to Rule 6(b)(1)(B), defendants now move for an order enlarging the time for
consideration of their discovery motion. Defendants would have the court consider their
motion to exclude Shideh’s testimony as presented and argued by the parties.
Rule 6(b)(1)(B) provides in pertinent part:
When an act may or must be done within a specified time, the
court may, for good cause, extend the time:
(A) . . . .
(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
“‘Good cause’ is a non-rigorous standard that has been construed broadly across procedural
and statutory contexts.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir.
2010). “To determine whether a party’s failure to meet a deadline constitutes ‘excusable
neglect,’ courts must apply a four-factor equitable test, examining: (1) the danger of
prejudice to the opposing party; (2) the length of the delay and its potential impact on the
proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.”
Id. at 1261.
Based upon Yeti by Molly, Ltd. v. Deckers Outdoor Corporation, 259 F.3d 1101,
1106 (9th Cir. 2001), R&R Sails, Inc. v. Insurance Company of Pennsylvania, 673 F.3d
1240, 1242-44 (9th Cir. 2012), and Yi v. BMW of North America, LLC, Case No. 2:17-cv-
06467-SVW-SK, 2018 WL 6071397 at *1 (C.D. Calif.) (May 24, 2018), ECI/ECC argues
that a motion in limine was a proper vehicle for putting before the court the motion to
exclude Shideh’s testimony based upon discovery violations. Based on the foregoing
authority, the court concludes that there was a reasonable basis for defendants to believe that
a motion in limine was a proper vehicle for putting their motion to exclude the testimony of
Shideh before the court. They have demonstrated that there was a good faith basis for
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characterizing the motion to exclude the testimony of Shideh as one in limine, even though
the motion appeared to the court to be a tardy discovery motion.
The delay in presenting the Shideh motion, if treated as a discovery motion, was only
two days, and the reason for the delay was a good faith belief that the time for presenting a
motion in limine had not expired – which, of course, it had not were the motion properly a
motion in limine.
There is no danger of prejudice to plaintiff in taking up the merits of the motion to
exclude Shideh’s testimony. No trial has been set in this case and, due to COVID-19 issues,
trial before the fourth quarter of 2021 or the first quarter of 2022 is unlikely. Moreover, the
issues which defendants would have the court decide have been both briefed and argued.
The motion to exclude the testimony of Shideh is therefore ready for disposition if the instant
motion is granted.
Based on the foregoing, the court concludes that there is good cause to extend the time
for filing a discovery motion in this case and that defendants’ failure to timely file their
discovery motion resulted because of excusable neglect.
Defendants’ motion to enlarge time in which to file a discovery motion10 is granted.
The joint motion in limine to exclude the testimony of expert Sean Shideh11 is deemed
submitted to the court for disposition.
DATED at Anchorage, Alaska, this 17th day of June, 2021.
/s/ H. Russel Holland
United States District Judge
10Docket No. 226.
11Docket No. 130.
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