United States District Court, D. Nevada
FOLEY, JR. United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion for
Leave to Disclose Expert Witness and Submit Final Expert
Damages Report (ECF No. 84), filed on March 15, 2017.
Defendant Tropicana Las Vegas, Inc. (“Tropicana”)
filed its Response (ECF No. 93) on April 7, 2017. Defendant
Eastern Real Estate LLC filed its Response (ECF No. 92) on
April 7, 2017. Plaintiff filed its Reply (ECF No. 98) on
April 21, 2017. The Court conducted a hearing in this matter
on May 5, 2017.
matter arises from claims of fraudulent inducement,
fraudulent concealment, breach of contract, breach of the
covenant of good faith and fair dealing, and unjust
enrichment against Defendants. See Complaint (ECF
No. 1). The Court granted Plaintiff's Motion to
Consolidate (ECF No. 42) and the related matter, RKF
Retail Holdings, LLC v. Eastern Real Estate LLC, Case
No. 2:15-cv-01446-APG-CWH, was consolidated with this case on
May 10, 2016. See ECF No. 48. The Court granted
Plaintiff and Defendant Tropicana's initial proposed
discovery plan and scheduling order on November 3, 2014 and
discovery was set to close on April 15, 2015. ECF No. 21. The
Court granted the parties' first stipulation to extend
deadlines on March 23, 2015. ECF No. 24. The discovery
cut-off date was extended to September 15, 2015 and the
deadline for initial expert witness disclosures was extended
to July 16, 2015.
parties subsequently filed and the Court granted six more
stipulations to extend discovery. (ECF Nos. 26, 35, 41, 56,
62, 77). Other than the parties' second stipulation to
extend discovery that extended the deadline for rebuttal
expert disclosures to February 15, 2016, the parties'
second through seventh stipulations to extend deadlines did
not extend the initial expert disclosure deadline. The
initial expert disclosure deadline was, therefore, July 16,
2015. The parties' fourth stipulation that was filed on
March 25, 2016 included the following:
RKF intends to seek leave after fact discovery is closed to
identify a damages expert who can review the facts and submit
a report in connection with any dispositive motion practice
and will offer to make that expert available for deposition
in the discretion of the court; RKF acknowledges that
Tropicana opposes such leave and argues that expert discovery
See Fourth Stipulation for Extension of Time (ECF
No. 40, 41), pg. 4.
of the Federal Rules of Civil Procedure governs discovery and
the duty to disclose expert testimony. A party must provide
its expert witness disclosures “at the times and in the
sequence that the court orders.” Fed.R.Civ.P.
16(a)(2)(B). Rule 37(c)(1) automatically excludes any
evidence not properly disclosed under Rule 26(a), regardless
of the party's bad faith or willfulness, unless the court
finds that there is substantial justification for the failure
to make complete disclosure, or that the failure to disclose
is harmless. Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); Elgas v.
Colorado Belle Corp., 179 F.R.D. 296 (D.Nev.1998).
motion to extend any date set by the discovery plan or
scheduling order must be supported by a showing of good cause
for the extension. LR 26-4. The good cause standard primarily
considers the diligence of the party seeking the extension.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir.1992). The scheduling order may be modified if
it cannot be reasonably be met despite the diligence of the
party seeking the extension. Id. If the party was
not diligent, the inquiry should end. Zivkovic v. S.
California Edison Co., 302 F.3d 1080, 1087 (9th
Cir.2002). A request made after the expiration of the subject
deadline will not be granted unless the movant also
demonstrates that the failure to act was the result of
excusable neglect. LR 26-4. There are four factors in
determining whether neglect is excusable: 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. Kelly v. CSE Safeguard Ins. Co., 2011 WL
2977890, at *1 (D. Nev. July 21, 2011) (citing Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380,
395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). This
determination is ultimately equitable and is left to the
discretion of the district court. Pioneer, 507 U.S.
at 395; Pincay v. Andrews, 389 F.3d 853, 860 (9th
requests leave to disclose its damages expert, Laura Boothman
Stamm, and to submit her final expert damages report.
Plaintiff must demonstrate both good cause and excusable
neglect because it sought to modify the scheduling order when
it filed its motion on March 15, 2017, well past the July 16,
2015 initial expert disclosure deadline. Plaintiff argues
that both Defendants were aware that Plaintiff intended to
disclose an expert and even received her preliminary report
on November 6, 2016. As such, Plaintiff argues that there is
no prejudice to Defendants because its expert may still be
deposed and because trial would not be disrupted. Defendant
Tropicana argues that Plaintiff failed to diligently seek
timely relief to modify the scheduling order and permitting
disclosure would result in prejudice to Defendants. Defendant
Eastern Real Estate opposes Plaintiff's request as
failed to show that it exercised due diligence in seeking an
extension. Even though Plaintiff informed Defendants of its
intent to disclose an expert after the close of discovery, it
did not seek leave to do so until March 15, 2017, about a
year and a half after the July 16, 2015 deadline. Plaintiff
does not present any facts to show that it was diligent
beyond its representation that it believed the parties were
cooperating on the modification of deadlines prior to their
fourth stipulation for an extension, which was filed on March
28, 2016. Plaintiff, therefore, waited about another year
after the parties' fourth stipulation to seek leave to
disclose its expert.
substantial length of this delay is not harmless. Prejudice
may be avoided if an extension is reasonable and the period
of delay is not lengthy. Here, the parties have already
conducted discovery which closed on December 22, 2016.
Requiring Defendants to conduct a deposition after the close
of discover to avoid prejudice disrupts this Court's
scheduling order and the other parties' calendars.
Wong v. Regents of the University of California, 410
F.3d 1052, 1062 (9th Cir.2005). Further, Plaintiffs desire to
have its expert review documents and deposition testimony at
the close of discover does not justify its delay. Plaintiff,
therefore, fails to carry its burden to show good ...