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Corbishley v. Pep Boys - Manny, Moe & Jack of Delaware, Inc.

United States District Court, D. Colorado

October 4, 2017

EARLENE F. CORBISHLEY, Plaintiff,
v.
PEP BOYS - MANNY, MOE & JACK OF DELAWARE, INC., a Delaware corporation, Defendant.

          ORDER

          Kathleen M. Tafoya, United States Magistrate Judge

         This matter is before the court on “Defendant Pep Boys - Manny, Moe & Jack of Delaware, Inc.'s Motion for Extension of Time to Disclose Accident Reconstruction Experts.” (Doc. No. 26 [“Mot.”], filed September 20, 2017), to which Plaintiff filed a Response. (Doc. No. 29 [“Resp.”], filed September 28, 2017.)

         Background Information

         On July 27, 2014, Plaintiff slipped and fell outside in the parking lot of Pep Boys located in Lone Tree, Colorado. (Mot. at 1-2.) Plaintiff originally filed this action seeking damages resulting from said fall in the District Court of Denver County (Doc. No. 4) and Defendants removed the matter to this court on January 6, 2017. (Doc. No. 1.) The deadline for each party to submit affirmative expert reports was September 5, 2017. (Doc. No. 24.) In the current Motion, filed after expiration of the September 5, 2017 deadline, Defendant seeks an extension of time to disclose an accident reconstruction expert.

         Analysis

         “Prior to the expiration of a scheduling order deadline, a party is required to move for extension of time supported by a statement of good cause.” Maddox v. Venezio, 09-cv-01000- WYD-MEH, 2010 WL 2363555, *1 (D. Colo. June 10, 2010). See Fed.R.Civ.P. 16(b)(4). “The ‘good cause' standard requires the moving party to show that despite his diligent efforts, he could not have reasonably met the scheduled deadline.” Maddox, 2010 WL 2363555, at *1 (citing Pumpco, Inc. v. Schenker Intern., Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). See Advisory Committee Notes to 1983 Amendment to Fed.R.Civ.P. 16(b) (“[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension”).

         “If a party discovers that it needs an extension of time after a deadline has expired, any extension must be supported by a statement of excusable neglect.” Maddox, 2010 WL 2363555, at *1 (citing Fed.R.Civ.P. 6(b)(1)(B)). To determine whether the neglect is “excusable”, the Tenth Circuit has stated:

[T]he 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.” Stringfellow v. Brown, No. 95-7145, 1997 WL 8856, *1 (10th Cir. 1997) (quoting Pioneer Inv.

Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993)). “Control over the circumstances of the delay is “the most important single . . . factor . . . in determining whether neglect is excusable.” Stringfellow, 1997 WL 8856, at *1 (quoting City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994)).

         As noted, Defendant was required to disclose its affirmative expert witness disclosures no later than September 5, 2017. (Doc. No. 24.) Defendant took Plaintiff's deposition on September 6, 2017. (Mot. at 2.) In the current Motion, Defendant states that prior to Plaintiff's deposition, she had consistently stated that she fell as she stepped off the curb and onto Defendant's parking lot. (Id. at 2.) Defendant claims that at her deposition, Plaintiff, for the first time, stated that she did not fall as she stepped off the curb but rather that she fell in a large grease spot after she stepped off the curb. (Id.) “As a result, Pep Boys did not realize until September 6, 2017, that - years after the incident - Plaintiff would change her story and testify that she fell after she stepped off the curb and took at least two or three steps, and not as she stepped off the curb.” (Id.) (emphasis in original).

         In support of their statement that throughout this litigation, Defendant understood Plaintiff to be claiming that she fell as stepped off a curb, they cite to one medical record from Healthone Occupational Medicine and Rehabilitation, dated August 15, 2014, in which the recorder notes under History of Present Illness, “She states that she was stepping off a curb.” (Doc. No. 26-1 at 1.) However, in Plaintiff's Response, she notes numerous instances both pre-and post- litigation in which she explicitly stated that she fell on a large grease spot in Defendant's parking lot after stepping off the curb. (Resp. at 1-3.)

         In a letter sent to Defendant's counsel prior to the filing of this lawsuit, Plaintiff's counsel stated:

On July 27, 2014, Earlene F. Corbishley was leaving the Pep Boys store located at 7469 Park Meadows Drive, in Lone Tree, Colorado, when she stepped off the sidewalk onto the parking lot, and slipped and fell on a large grease spot. She broke her fall with both of her hands and wrists and landed on her left knee. A dangerous condition existed in the parking lot of Pep Boys. The area where Ms. ...

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