The opinion of the court was delivered by: Magistrate Judge Craig B. Shaffer
MEMORANDUM ORDER REGARDING PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME IN WHICH TO DESIGNATE EXPERT WITNESSES
THIS MATTER comes before the court on Use Plaintiff Diversified Technologies Services, Inc.'s ("DTS") Motion for Enlargement of Time in Which to Designate Expert Witnesses (Document # 27), filed on December 30, 2005. Defendants MACTEC and Insurance Company of the State of Pennsylvania filed a Brief in Opposition on January 13, 2006. By Order of Reference dated December 8, 2004, this matter was referred to the Magistrate Judge to, inter alia, "issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause," and to "hear and determine pretrial matters, including discovery and other non-dispositive motions."
This court heard arguments on the pending motion during a hearing on January 30, 2006.
After carefully considering the parties' papers and the arguments of counsel, the court granted Plaintiff's Motion for Enlargement of Time and allowed DTS's belated expert designations. The court also extended deadlines for completing expert discovery. However, I granted Plaintiff's motion contingent upon the payment of sanctions based upon Plaintiff's failure to comply with pre-existing discovery deadlines. This Memorandum Order will further memorialize and explain my reasoning for those sanctions.
The Complaint filed by Diversified Technologies Services on December 6, 2004, asserts claims for equitable adjustment for equipment damage, breach of contract, failure to promptly pay invoices, and breach of contract against surety The Insurance Company of the State of Pennsylvania. This action stems from subcontract work performed by DTS in the course of the environmental remediation at the Rocky Flats Environmental Technology Site. Defendant MACTEC was awarded a contract by Kaiser-Hill, which was the Management and Integration Contractor for the United States Department of Energy. In August 2002, DTS entered into a subcontract with MACTEC under which Plaintiff was to design, fabricate, set up and make operational a liquid radiation waste processing system capable of recycling wastewater and processing reverse osmosis concentrates that were being processed by another subcontractor. The instant action arises from that subcontract and remediation project.
This court held a Fed.R.Civ.P. 16 scheduling conference on March 10, 2005 and entered a Scheduling Order on March 14, 2005. Under that Scheduling Order, the parties were to complete all discovery by February 28, 2006. The Scheduling Order also required the parties to designate affirmative expert witnesses on or before October 17, 2005, and to designate rebuttal experts on or before December 19, 2005. The Scheduling Order submitted by the parties expressly acknowledged that "this scheduling order may be altered or amended only upon a showing of good cause." Trial is set to commence in this case on August 28, 2006.
On December 30, 2005, DTS filed the instant Motion for Enlargement of Time in Which to Designate Expert Witnesses. Plaintiff advised the court that on December 19, 2005, it had provided Defendants with Fed.R.Civ.P. 26(a)(2)(B) disclosures for Michael D. Palmer, "an expert in regulatory requirements and effective control measures for asbestos containing materials," and Leslie A. Cole, "an expert in health physics issues." In short, Plaintiff requested (eleven days after the fact and more than two months after the original designation deadline), that the deadline for designating affirmative experts be extended to December 19, 2005. Defendants MACTEC and the Insurance Company of the State of Pennsylvania opposed Plaintiff's request, arguing that DTS had not demonstrated good cause for its belated expert designations and that Plaintiff's untimely designations would jeopardize Defendants' right to an expeditious trial.*fn1 Defendants have moved to strike Plaintiff's untimely designations.
As a threshold matter, the court must acknowledge Plaintiff's failure to move in a timely manner for an extension of its expert disclosure deadline. I am at a complete loss to understand why Plaintiff neglected to request an extension prior to October 17, 2005, the original deadline for designating affirmative experts. Plaintiff claims that the opinions of Mr. Palmer and Ms. Cole "address key issues in Plaintiff's case and are considered by DTS to be essential to its case." See Plaintiff's Motion for Enlargement of Time, at 3. I would have expected DTS to be more attentive to deadlines that directly impact such "essential" witnesses. Plaintiff's motion also alludes to its "diligence in seeking production of" documents germane to these expert opinions. The record before the court belies this characterization.
The parties to this action held a Fed.R.Civ.P. 26(f) conference on February 17, 2005, and could have initiated formal discovery immediately thereafter. See Fed.R.Civ.P. 26(d). Plaintiff had approximately seven months to conduct fact discovery before its affirmative expert disclosures were due on October 17, 2006. Yet, by counsel's own admission, DTS did not seek pertinent documents from MACTEC until August 12, 2005. Anticipating that MACTEC's records might be incomplete, on August 15, 2005, Plaintiff served a subpoena duces tecum on Kaiser-Hill, Defendant's prime contractor. DTS served a second subpoena duces tecum on Kaiser-Hill on September 19, 2005. Plaintiff's counsel indicated during the January 30th hearing that he was still reviewing documents produced by Kaiser-Hill well after the October 17, 2005 expert disclosure deadline. A reasonable interpretation of the factual record leads to the conclusion that Plaintiff failed to diligently pursue discovery in anticipation of the expert disclosure deadline, and certainly failed to seek relief in a timely manner once it became obvious that the October 17th deadline could not be met. To contrary, it appears that Plaintiff chose to simply present Defendants and the court with a fait accompli by serving expert reports well after the judicially-established deadline.
Rule 6 of the Federal Rules of Civil Procedure provides that when an act is required by order of court, an enlargement of time may be granted "upon motion made after the expiration of the specified period . . . where the failure to act was the result of excusable neglect." See Fed.R.Civ.P.6(b).*fn2 The Tenth Circuit has held that a finding of excusable neglect under Rule 6(b) requires both a demonstration of good faith by the party seeking the enlargement and a finding that there was a reasonable basis for not complying within the specified period. See In re Four Seasons Securities Laws Litigation, 493 F.2d 1288, 1290-91 (10th Cir. 1974) (finding no error in enlarging time under Rule 6(b) in the absence of any showing of bad faith or prejudice).
The Supreme Court has recently elaborated on the meaning of "excusable neglect," in the context of the courts' discretionary powers to excuse certain failures. "Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake or carelessness, as well as by intervening circumstances beyond the party's control." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388 (1993) (emphasis suppled). To determine whether the neglect is "excusable," the court must take account of all relevant circumstances surrounding the party's omission, including "the danger of prejudice to the [non-moving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Id. at 395. Control over the circumstances of the delay is "the most important single . . . factor . . . in determining whether neglect is excusable." City of Chanute v. Williams Nat. Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994).
Stringfellow v. Brown, 1997 WL 8856 (10th Cir. Jan. 10, 1997) (finding that counsel's busy workload would not establish excusable neglect where counsel did not even move for an extension of time). In determining whether a party has demonstrated excusable neglect, a court should consider whether the moving party's tardiness results from a failure to provide for a readily foreseeable consequence or event. See Mettle v. First Union National Bank, 279 F. Supp.2d 598, 604 (D. N.J. 2003). Cf. Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984) (finding no excusable neglect where ...