United States District Court, E.D. Michigan, Southern Division
States Magistrate Judge David R. Grand
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
ADJOURN TRIAL  AND DENYING DEFENDANT'S MOTION TO
CERTIFY ORDER DENYING LEAVE TO AMEND FOR INTERLOCUTORY APPEAL
AND FOR STAY OF PROCEEDINGS 
Gershwin A. Drain United States District Court Judge
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.”).
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.
reasons discussed herein, the Court will DENY Defendant's
Motion to Adjourn Trial  and DENY Defendant's Motion
to Certify Order Denying Leave to Amend for Interlocutory
Appeal and for Stay of Proceedings .
Motion to Adjourn Trial
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.
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).
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
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
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 ...