United States District Court, E.D. Louisiana
E. FALLON U.S. DISTRICT COURT JUDGE
the Court is Plaintiff's Motion to Extend Expert Report
Deadline. R. Doc. 67. The motion is opposed. R. Docs. 72, 73.
The Court now rules as follows.
Dejuan McKarry alleges he was working as a
“switchman/operator/helper” at the Dow Chemical
Plant in Taft, Louisiana, when a ladder broke on a hopper
railcar and caused him to fall approximately 12 feet.
Plaintiff brought suit against the following Defendants: The
Dow Chemical Company (“Dow”); Union Carbide
Corporation, a wholly owned subsidiary of The Dow Chemical
Company; Central City and Blackhawk Railroad, a wholly owned
subsidiary of Union Carbide Corporation; Union Tank Car
Company (“UTC”); UTLX Manufacturing, LLC, a
wholly owned subsidiary of Union Tank Car Company; and Jeremy
DeLacerda and Randy McDougal, Jr., in their capacity as
employees of UTLX Manufacturing. R. Doc. 1-4. McKarry
generally alleges these Defendants owned or operated the
hopper railcar, and that his injuries were caused by their
negligent failure to inspect, repair, and maintain it.
Defendants Union Carbide Company, UTLX Manufacturing, Inc.,
Jeremy DeLacerda, and Randy McDougal, Jr. were subsequently
dismissed from this lawsuit, leaving Defendants Dow and UTC
as the sole remaining defendants.
has filed a Motion to Extend Expert Report Deadline due to
his alleged inability to inspect a railroad hopper car
similar to the one involved in the incident that gave rise to
this lawsuit. R. Doc. 67. Pursuant to the Court's
scheduling order, Plaintiff's expert reports were due for
submission no later than October 15, 2019. R. Doc. 44. On
October 16, 2019, Plaintiff filed a Motion to Extend Expert
Report Deadline. R. Doc. 67. Defendants UTC and Dow filed
oppositions to the Motion. R. Docs. 72, 73.
STANDARD OF REVIEW
to Federal Rule of Civil Procedure 16, “[a] schedule
may be modified only for good cause and with the judge's
consent.” Fed. R. Civ. Pro. 16(b)(4). The good cause
standard requires showing “the deadlines cannot
reasonably be met despite the diligence of the party needing
the extension.” S&W Enters., L.L.C. v.
SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th
Cir. 2003) (internal quotation and citation omitted). In
deciding whether to amend a scheduling order, a court must
consider “‘(1) the explanation for the failure to
[timely move for leave to amend]; (2) the importance of the
[amendment]; (3) potential prejudice in allowing the
[amendment]; and (4) the availability of a continuance to
cure such prejudice.'” Id. at 536 (quoting
Reliance Ins. Co. v. La. Land & Expl. Co., 110
F.3d 253, 257 (5th Cir. 1997)) (alterations in original);
Lester v. Exxon Mobil Corp., No. CV 14-1824, 2019 WL
4016325, at *2 (E.D. La. Aug. 26, 2019).
argues an extension is warranted because “[f]or over
two (2) years, [Plaintiff] has requested to simply survey,
measure and photograph Dow's railroad hopper car assigned
the SCAC designation of CCBX71279, or one similar thereto,
” yet Dow did not provide the hopper car for inspection
before the Court's expert report deadline. R. doc. 67-1
at 2-3. Plaintiff alleges “Dow pretended and made
assurances that it would make arrangements to present a
similar hopper car, but did not.” R. Doc. 67-1 at 2.
objects to Plaintiff's request for an extension and also
denies Plaintiff's allegation that it engaged in dilatory
behavior. R. Doc. 73 at 1. Dow contends it “has not
denied Plaintiff an inspection” and argues Plaintiff
has failed to produce sufficient information pursuant to
Federal Rule of Civil Procedure 34 for Dow to schedule the
inspection. R. Doc. 73 at 2-3. Specifically, Dow asserts it
requires “the names of the guests that Plaintiff
desired to attend the inspection and a particularized
description of the actual work Plaintiff desired to
accomplish at an inspection, ” which Dow reminded
Plaintiff of “weeks prior to Plaintiff's expert
report deadline.” R. Doc. 73 at 3-4. Dow thus argues
“it is Plaintiff who has been dilatory in complying
with the Court issued deadlines.” R. Doc. 73 at 7. UTC
also objects to Plaintiff's motion, arguing
“[P]laintiff has not explained how such an inspection
would provide information relative to his negligence claims
against UTC, ” nor has Plaintiff timely served
disclosures of his liability experts. R. Doc. 72 at 1.
threshold matter, the Court does not construe Plaintiff's
motion to be filed with respect to all expert report
deadlines. Plaintiff's motion only refers to the ability
to inspect an exemplar railroad hopper car. As such, the
Court will only consider an extension of the deadline for
inspection of the railroad hopper car and associated expert
report. All remaining deadlines remain in effect pursuant to
the Court's Scheduling Order. See R. Doc. 44.
cannot be said at this stage that Plaintiff lacks “good
cause” in his request to extend the deadline, as it
appears that Plaintiff has exerted ample effort to schedule
the inspection. Plaintiff has exchanged numerous
correspondences with Dow regarding the subject. R. Docs. 67-1
at 2, 67-4 at 3, 67-6. These efforts can be construed as the
“diligence” required to show good cause.
SeeS&W Enters., 315 F.3d at 535.
Although Dow argues Plaintiff himself caused the delay by
providing insufficient information, there is no evidence that
this was an intentional withholding done in ...