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Dixon v. Greyhound Lines, Inc.

United States District Court, M.D. Louisiana

November 19, 2014

EDWARD D. DIXON,
v.
GREYHOUND LINES, INC., GLI CORPORATE RISK SOLUTIONS, AND JAMES HESTER

RULING AND ORDER ON PLAINTIFF'S MOTION TO COMPEL AND MOTION FOR EXTENSION

RICHARD L. BOURGEOIS, Jr., Magistrate Judge.

Before the Court is Plaintiff Edward Dixon's Motion for Extension of Deadlines (R. Doc. 49), and Plaintiff's Motion to Compel a non-party, Dr. Meredith Warner, to comply with a Rule 45 subpoena (R. Doc. 48). Plaintiff filed both his Motion to Compel (R. Doc. 48) and his Motion to Extend (R. Doc. 49) on September 25, 2014. Defendants filed Memoranda in Opposition to both Motions. (Defs.' Opp'n to Pl.'s Mot. to Compel, R. Doc. 63); (Defs.' Opp'n to Pl.'s Mot. to Extend, R. Doc. 50).[1] Defendants' medical expert, Dr. Meredith Warner, also filed an Opposition (R. Doc. 74) to Plaintiff's Motion to Compel.

For the reasons set forth below, the Motion to Compel (R. Doc. 48) is DENIED. The Motion to Extend (R. Doc. 49) is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

In this personal injury action, Plaintiff claims he sustained injuries to his back and knee (R. Doc. 21-9) while traveling as a passenger on a Greyhound bus on January 3, 2012. (R. Doc. 1-1). Following removal, the Court issued a Scheduling Order (R. Doc. 20) on October 3, 2013, based on dates proposed by the parties (R. Docs. 16 and 19). The Scheduling Order required the parties to complete expert discovery by September 2, 2014 and to file both Daubert and dispositive motions by October 1, 2014. (R. Doc. 20 at 2).

On February 9, 2014, Plaintiff underwent an independent medical examination conducted by Defendants' medical expert, Dr. Meredith Warner. (R. Doc. 74 at 1). On August 27, 2014, Plaintiff served Dr. Warner with Rule 45 subpoenas commanding her to produce documents by September 5, 2014 (R. Doc. 49-3 at 3) and appear for a deposition on September 29, 2014 (R. Doc. 49-3 at 7). On September 5, 2014, Dr. Warner partially objected to the subpoena to produce documents. (R. Doc. 74-2). Although she did not object to the September 29, 2014 deposition, Dr. Warner's deposition has yet to take place.

On September 25, 2014, three weeks after Dr. Warner's September 5, 2014 objections, Plaintiff moved the Court to extend the September 2, 2014 expert discovery deadline and October 1, 2014 Daubert /dispositive motions deadline. (R. Doc. 49). Plaintiff simultaneously filed a Motion to Compel production of the documents requested in his Rule 45 subpoena to Dr. Warner. (R. Doc. 48).

II. LEGAL STANDARD

A. Motion for Extension of the Scheduling Order Deadlines

A scheduling order "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). In order to show "good cause" the party seeking modification must show the deadlines could not "reasonably be met despite the diligence of the party needing the extension." S & W Enter., LLC v. South Trust Bank of Alabama, 315 F.3d 533, 535 (5th Cir. 2003) (citation omitted). "In other words, the party who seeks to modify a scheduling order deadline must show that, despite acting diligently, it will still be unable to meet that deadline." Hernandez v. Mario's Auto Sales, Inc., 617 F.Supp.2d 488, 492 (S.D. Tex. 2009). For obvious reasons, the standard focuses on the diligence of the party seeking the modification to the scheduling order.

B. Motion to Compel

Rule 26(b)(1) of the Federal Rules of Civil Procedure allows a party to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." A relevant discovery request seeks information that is "either admissible is reasonably calculated to lead to the discovery of admissible evidence." McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1484 (5th Cir. 1990) (quoting Fed.R.Civ.P. 26(b)(1)) (alterations in original).

Rule 45 governs discovery from non-parties through the issuance of subpoenas. Rule 45 subpoenas are subject to the same discovery limitations outlined in Rule 26(b). See Hussey v. State Farm Lloyds Ins. Co., 216 F.R.D. 591, 596 (E.D. Tex. 2003); 9A Wright & Miller, Federal Practice & Procedure 2d ยง 2459 ("Of course, the matter sought by the party issuing the subpoena must be reasonably calculated to lead to admissible evidence as is required by the last sentence of Rule 26(b)(1)."). The party issuing the subpoena "must take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena." Fed.R.Civ.P. 45(d)(1). Additionally, Rule 45 provides that, on a timely motion, the ...


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