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Wallace Sales & Consulting, LLC v. Tuopu North America, Limited

United States District Court, E.D. Michigan, Southern Division

November 22, 2016

Wallace Sales & Consulting, LLC, Plaintiff/Counter Defendant,
Tuopu North America, Limited, Defendant/Counter Claimant.

          United States Magistrate Judge David R. Grand


          Gershwin A. Drain United States District Court Judge

         I. Introduction

         The present case was filed on March 2, 2015, Dkt. No. 1, and originally scheduled to go to trial in October 2016, Dkt. No. 32. In March 2016, the Court granted the parties an extension of the time frame for scheduling, moving the trial date to December 2016. See Dkt. No. 45. Parties were granted yet another scheduling extension in May 2016, although the trial date remained in mid-December. Dkt. No. 57. In June 2016, the Court amended the scheduling order again and set a trial date for December 13, 2016. Dkt. No. 61. For the last five months this trial date has remained with the recognition that it will not be extended or adjourned. See Dkt. No. 73, p. 2 (Pg. ID No. 1466) (“IT IS FURTHER ORDERED that the discovery deadline is hereby extended through September 30, 2016, with the parties' recognizing that this adjournment will not extend the December 13, 2016 trial date.”).

         In the past two weeks, Defendant has filed several motions seeking to delay the trial date. Defendant has requested a 90-day adjournment, Dkt. No. 113, sought permission for an interlocutory appeal and stay of proceedings, Dkt. No. 117, and recently filed a motion to strike plaintiff's expert witness based on reports submitted over two months ago, Dkt. No. 119. Plaintiff has not concurred in any of Defendant's motions to postpone trial.

         For the reasons discussed herein, the Court will DENY Defendant's Motion to Adjourn Trial [113] and DENY Defendant's Motion to Certify Order Denying Leave to Amend for Interlocutory Appeal and for Stay of Proceedings [117].

         II. Discussion

         A. Motion to Adjourn Trial

         Defendant moves the Court to adjourn the trial date pursuant to E.D. Mich. L.R. 40.2 and Fed.R.Civ.P. 16(b)(4). Dkt. No. 113, p. 2 (Pg. ID No. 3014). Defendant contends that the trial date should be postponed at least ninety (90) days for the following reasons: (1) Plaintiff filed a Motion to Strike Defendant's Expert Witness on October 19, 2016, because Defendant did not timely disclose their expert's report, and the fact that the matter has not yet been resolved negatively impacts Defendant's ability to prepare for trial; (2) Defendant deposed plaintiff's expert witness on October 20 and October 28, and seeks to identity a rebuttal expert witness to analyze data, although the period in which to identify a rebuttal expert witness passed in mid-October; and (3) the parties will be engaging in a mediation session on November 29, 2016, before mediator Gene J. Esshaki and Defendant believes that adjournment would make the parties more likely to reach a resolution.

         Plaintiff opposes the motion for adjournment because it believes that Defendant's goal in adjourning the trial date is to render its late-disclosed expert witness report timely, and to provide Defendant additional time in which to retain a rebuttal expert witness. Dkt. No. 118, pp. 9-10 (Pg. ID No. 3219-20). Defendant replies that allowing trial to proceed would reward Plaintiff for “dilatory tactics” in discovery. Dkt. No. 121, p. 5 (Pg. ID No. 3559).

         Local Rule 40.2 states:

Counsel or any party without counsel shall be prepared and present themselves as ready in all cases set for trial or for pretrial on the date set unless, on timely application and good cause shown, the cases are continued. Where application is made for the continuance of the trial of a case, such application shall be made to the Court as soon as the need arises.

Rule 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “A court asked to modify a scheduling order for good cause ‘may do so only if [a deadline] cannot reasonably be met despite the diligence of the party seeking the extension.' ” Marcilis v. Twp. of Redford, 693 F.3d 589, 597 (6th Cir. 2012) (quoting Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003)). An “important consideration for a district court deciding whether Rule 16's good cause standard is met is whether the opposing party will suffer prejudice by virtue of the amendment.” Leary, 349 F.3d at 906 (internal quotation marks omitted).

         The Court will not grant Defendant's request for an adjournment of the trial date. The Court finds that the parties should be able to prepare for the trial date, which has been scheduled for many months, if they exercise the ordinary amount of diligence expected of all attorneys appearing before this Court. The Court further finds that Plaintiff would be prejudiced from having yet another extension granted in this case. Such a decision is fully within the Court's “broad ...

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