Barnes v. Malinak (PLR2)
3:15-cv-00556
E.D. Tenn.Jul 25, 2017Background
- Plaintiffs Phyllis G. Barnes and Walter R. Barnes filed a motion seeking extension of the Scheduling Order "all discovery" deadline to take a medical-proof deposition of Dr. Clayton H. Thomason after the discovery cutoff.
- Plaintiffs had served a Notice of Video Deposition for Dr. Thomason on June 22, 2017; discovery had closed May 31, 2017. The Court previously quashed that notice as untimely for lack of leave to notice the deposition after the deadline.
- Plaintiffs argued a medical-proof deposition of a treating physician is not a discovery deposition subject to the Scheduling Order deadline; they asked alternatively for an extension so the deposition could occur July 7, 2017.
- Defendants (the Malinaks and Sidney James Motor Lodge) opposed the extension as untimely, prejudicial, and not supported by good cause or diligence; they noted expert-disclosure and dispositive-motion deadlines had passed.
- The Court evaluated the motion under Fed. R. Civ. P. 16(b)(4) (good cause) and, given the filing-after-deadline posture, considered Rule 6(b)(1)(B) (excusable neglect) factors; it found Plaintiffs were not diligent, had not provided required Rule 26(a)(2)(C) disclosures for Dr. Thomason, and that allowing the deposition would prejudice Defendants and disrupt imminent trial preparation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a treating physician's "medical-proof" deposition is exempt from the Scheduling Order's "all discovery" deadline | Thomason's deposition is medical-proof and not a discovery deposition subject to the deadline | All depositions for evidence, including medical-proof depositions, fall within the Scheduling Order deadline | Court rejected Plaintiffs' argument and reaffirmed that the Scheduling Order covers all depositions for evidence |
| Whether the Court should extend the discovery deadline to allow Thomason's deposition after the cutoff | Plaintiffs asked for an extension to take the deposition July 7, claiming they did not interpret the Scheduling Order to apply to medical-proof depositions | Defendants argued the request was untimely, Plaintiffs lacked diligence, and reopening discovery would prejudice defense and disrupt trial prep | Denied: Plaintiffs failed to show good cause under Rule 16(b)(4) and diligence; extension would prejudice Defendants |
| Whether the Plaintiffs’ post-deadline request can be granted under Rule 6(b)(1)(B) for excusable neglect | Plaintiffs did not specifically invoke Rule 6(b) or justify excusable neglect | Defendants emphasized prejudice, delay, and that expert-disclosure deadlines passed | Denied: Court found no excusable neglect after balancing the five Nafziger factors; delay and lack of diligence weighed against Plaintiffs |
| Whether Plaintiffs' failure to provide Rule 26(a)(2)(C) treating-physician disclosure affects the request | Plaintiffs had not submitted Thomason's Rule 26(a)(2)(C) disclosure | Defendants noted absence of required disclosures prevented meaningful deposition and rebuttal preparation | Court found lack of required disclosure further supports denial as it prejudices Defendants and evidences Plaintiffs’ lack of diligence |
Key Cases Cited
- Commerce Benefits Grp., Inc. v. McKesson Corp., [citation="326 F. App'x 369"] (6th Cir.) (primary consideration for modifying scheduling order is moving party's diligence)
- Korn v. Paul Revere Life Ins. Co., [citation="382 F. App'x 443"] (6th Cir.) (moving party must show why amendment was not sought earlier)
- Leary v. Daeschner, 349 F.3d 888 (6th Cir.) (diligence requirement in seeking scheduling-order modifications)
- Nafziger v. McDermott Int'l, Inc., 467 F.3d 514 (6th Cir.) (five-factor test for excusable neglect under Rule 6(b))