Perez v. Great Wolf Lodge of the Poconos LLC, 3:12-CV-01322
| Decision Date | 10 February 2017 |
| Docket Number | 3:12-CV-01322 |
| Parties | BRIAN PEREZ and JENNIFER PEREZ Plaintiffs, v. GREAT WOLF LODGE OF THE POCONOS LLC, and GREAT WOLF RESORTS, INC. Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MARIANI)
Presently before the Court are two motions filed by the Defendants. In the first Motion, Defendants ask the Court to extend the case management deadlines—which expired well over a year ago. (Doc. 236). In the second motion, Defendants move to compel an independent medical examination of Plaintiff Brian Perez. (Doc. 243). For the reasons that follow, Defendants' Motions will be denied.1
On July 9, 2012, Plaintiffs filed a Complaint against Defendants, (Doc. 1). Defendants' first set of counsel, the Spector Gadon & Rosen firm, filed an Answer on July 31, 2012. (Doc. 3). The Court thereafter issued an initial Case Management Order providing that expert discovery was to close in July 2013. (Doc. 14). In August 2012, Plaintiffs served expansive discovery requests on the Defendants. In response, Defendants produced just 38 pages of documents. Plaintiffs thereafter filed a Motion to Compel, (Doc. 16), and counsel for the Defendants represented to the Court that Defendants had "produced all discoverable documents in its possession," which, notably did not include any e-mails. Defendants later produced an additional 5,000 pages of documents.
On March 28, 2013, Harry Coleman Esq. entered an appearance on behalf of the Defendants, (Doc. 21), and subsequently filed a motion for extension of time to enlarge the case management deadlines, which the Court granted on August 9, 2013. (Doc. 28). The Order provided that expert discovery was to be completed by March 15, 2014. (Id.).
In September 2013 the Court held a hearing on Plaintiffs' Motion to Compel and ordered the Defendants to "turn over any email that has not been turned over at this point" and recognized that the Defendants "seem to have some difficulty complying with the Rules of Civil Procedure." (Doc. 34, at 22, 33). Despite that admonition, Defendants withheld and refused to produce critical e-mail statements of one of their employees until after nearly thirty witnesses had been deposed, Plaintiffs' liability expert reports were produced, andDefendants filed a motion for summary judgment. Defendants' conduct resulted in the Plaintiffs filing a Motion for Sanctions, (Doc. 76), and necessitated the Court re-opening discovery in order to permit Plaintiffs to re-depose various witnesses. (Docs. 136, 138). The Court referred Plaintiffs' Motion for Sanctions to Magistrate Judge Carlson who recommended that Plaintiffs' Motion should be denied. (Doc. 134). In adopting this recommendation, the Court again admonished the Defendants and noted that it "declines to express any opinion as whether some sanction may be necessary and appropriate in this case and leaves that question for another time should the issue arise." (Doc. 137).
Unfortunately, Defendants' misconduct did not end there. As extensively discussed in a memorandum opinion granting in part and denying part Plaintiffs' subsequent motion for sanctions, (Doc. 232), Defendants actively mislead Plaintiffs in certain of their supplemental discovery responses by representing that no surveillance was being conducted of the Plaintiffs. This was not true. In fact, Defendants' counsel knew that surveillance was being conducted at the time he served the supplemental discovery responses and failed to supplement the discovery response for over two-and-half years (and after Defendants had filed their second motion for summary judgment). In the memorandum opinion, this Court recognized that Defendants failed to comply with the discovery obligations, that Defendants' failure was neither substantially justified nor harmless, and that Defendants "actively mislead Plaintiffs into thinking that no such discovery existed." (Id. at 11-13). The Court further noted that Defendants' conduct was "not an isolated incident" and that "due toDefendants' conduct the Court has had to twice extend the discovery deadlines." (Id. at 16-17).
Over the nearly five years that this case has been pending, the Court has extended the discovery deadlines over seven times. And, contrary to Defendants' representations that the majority of the extensions were due to Plaintiffs' conduct, five of the seven extensions were directly attributable to Defendants' conduct, including their repeated discovery violations. (Doc. 245-2).
On September 23, 2015, the Court issued a final revised scheduling order that explicitly provided that "No expert reports will be accepted by the Court after the close of time for submission of briefs" on Defendants' motion for summary judgment. (Doc. 142). The final brief submitted with respect to Defendants' motion was December 18, 2015. (Doc. 167). Thus, expert discovery was closed on December 18, 2015.
On July 26, 2016, the Court denied Defendants' Motion for Summary Judgment in its entirety. (Doc. 199). Thereafter, the Court entered an Order on August 12, 2016, scheduling the pre-trial conference for March 3, 2017, with trial to commence on March 13, 2017. (Doc. 207). John J. Snyder and Michael Sabo (Defendants' third set of counsel) entered appearances on November 16 and 17, 2016, (Docs. 219, 221), but abruptly withdrew their appearances the following week. (Doc. 225). Thereafter, Robert G. Devine and Michael Horner (Defendants' fourth set of counsel) entered an appearance onNovember 22, 2016. (Docs. 222-223). Attorneys Devine and Horner entered their appearances as co-counsel with attorney Harry Coleman.
On January 17, 2017, approximately two months before trial (and with deadlines for Motions in Limine, pretrial memoranda, and other deadlines just days away) Defendants have filed the instant Motion to Extend the Case Management Deadlines. (Doc. 236). Plaintiffs oppose Defendants' Motion. Despite the Court's Order that no expert reports would be accepted after December 18, 2015, Defendants attached to their Motion five new liability and damage expert reports, which they improperly label as "rebuttal reports." The experts are in the fields of: (1) biomechanical engineering/accident reconstruction/mechanical engineering; (2) human factors; (3) economics; (4) vocationalist; and (5) psychiatry. According to the Plaintiffs, "Defendants have had Plaintiffs' expert reports in each of these areas for years." (Doc. 245, at 10). In addition, "Defendants already have a liability expert, Wally James, who is a mechanical engineering and an amusement park expert," (Id.), and Defendants' biomechanical engineer expert seeks to introduce a new discipline into this case because Plaintiffs do not have a biomechanical engineering expert. (Id.). Plaintiffs also contend that Defendants also have a vocational expert, William Walker, whose report was produced in March 2014, and that "Defendants cannot change to a newvocational expert because their fourth counsel coming on board has a different 'trial strategy.'"2 (Id. at 11).
Defendants ask this Court to extend the Case Management Deadlines, which expired over thirteen months ago. Although the parties rest their respective arguments on Federal Rule of Civil Procedure 37, both ignore that Federal Rule of Civil Procedure 16(b)(4) also applies under the circumstances. The Rule provides that a pretrial scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The "good cause" inquiry "focuses on the moving party's burden to show due diligence." Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010). "In the context of requests to extend deadlines, courts have defined good cause to include circumstances beyond the control of a party." Courtney v. Ivanov, Civil Action No. 3:13-227, 2016 WL 1367755, at *2 (W.D. Pa. Apr. 6, 2016) (internal citation and quotation marks omitted). "In the context of requests to reopen discovery, the decision whether to reopen discovery is committed to the sound discretion of the district court." Id.
In the present case, Defendants make no attempt to argue that either they or their prior counsel have acted diligently to comply with the Court's pretrial scheduling deadlines. Norhave Defendants argued that circumstances beyond their control require extension of the discovery deadlines. Rather, the principal focus of Defendants' argument is that their new co-counsel (their fourth) "has acted diligently since entering an appearance to prepare this case for trial." (Doc. 236, at 12). The Court finds Defendants' argument to be disingenuous and wholly unavailing. As an initial matter, "[r]etaining new counsel, by itself, does not establish good cause." Trask v. Olin Corp., 298 F.R.D. 244, 268 (W.D. Pa. 2014) (citations omitted). Moreover, to the extent that the Defendants appear to argue that their co-counsel Harry Coleman Esq. (who has represented the Defendants for nearly four years) erred by not retaining certain expert witnesses, it is well settled that "attorney error . . . does not constitute good cause under Rule 16(b)." Banks v. City of Philadelphia, 309 F.R.D. 287, 293 (E.D. Pa. 2015); see also Lehman Bros Holdings, Inc. v. Gateway Funding Diversified Mortg. Servs., L.P., 785 F.3d 96, 102 (3d Cir. 2015) () (citations omitted). Simply put, and, as...
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