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Jones v. Coty, Inc.

United States District Court, S.D. Alabama, Southern Division

April 27, 2018

SHAMIKA JONES, et al., etc., Plaintiffs,
v.
COTY, INC., etc., et al., Defendants.

          ORDER

          WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the plaintiffs' objection to an order entered by the Magistrate Judge. (Doc. 97). The defendants have filed responses and the plaintiffs a reply, (Docs. 108-10), and the objection is ripe for resolution.

         The plaintiffs object to the order of the Magistrate Judge granting the defendants' identical motions for an extension of time to disclose experts. (Doc. 96). The plaintiffs describe this order as a report and recommendation, (Doc. 97 at 6), but it is not; instead, it is an order on a non-dispositive pretrial matter. “A judge of the court may reconsider any pretrial matter [on a non-dispositive issue] where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); accord Fed. R. Civ. P. 72(a) (“The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”).

         As the Court has repeatedly noted, [t]he ‘clearly erroneous or contrary to law' standard of review is extremely deferential. ... Relief is appropriate under the ‘clearly erroneous' prong of the test only if the district court finds that the Magistrate Judge abused [her] discretion or, if after reviewing the record as a whole, the Court is left with a definite and firm conviction that a mistake has been made. ... With respect to the ‘contrary to law' variant of the test, an order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Cordova v. R&A Oysters, Inc., 2016 WL 3102224 at *1 (S.D. Ala. 2016) (internal quotes omitted). The Court has also noted that, “[i]n reviewing a magistrate judge's nondispositive ruling, this Court does not consider matters not placed before that judge.” White v. Thyssenkrupp Steel USA, LLC, 2010 WL 2042331 at *2 (S.D. Ala. 2010) (internal quotes omitted).

         This action (“Jones”) was filed by a single plaintiff in December 2016. (Doc. 1). An identical suit (“Bowens”), filed in the Middle District of Alabama in March 2017 by the same counsel representing the Jones plaintiff, was transferred to this District in May 2017 and promptly consolidated into Jones on the plaintiffs' motion. (Docs. 25, 27). A third identical suit (“Caddell”), filed in the Northern District of Alabama in February 2017 by the same counsel, was likewise transferred to this District in May 2017 and promptly consolidated into Jones on the plaintiffs' motion. (Docs. 29, 30).

         In June 2017, the Magistrate Judge entered a Rule 16(b) scheduling order, providing for the disclosure of defense experts pursuant to Rule 26(a)(2) no later than December 15, 2017. (Doc. 36 at 2).

         A fourth identical suit (“Franks”), filed in the Southern District of Mississippi in May 2017 by the same counsel, was transferred to this District in July 2017 and promptly consolidated into Jones on the plaintiffs' motion. (Docs. 41, 43).

         A fifth identical suit (“Taylor”) was filed in the Western District of Louisiana in October 2017 by the same counsel. Although Taylor's counsel emailed a courtesy copy of the Taylor complaint to defense counsel in this action two days after suit was filed, (Doc. 97 at 3), at least one defendant was not served until December 2017. (Doc. 59 at 1). On December 13, 2017, the defendants herein moved for a 90-day extension of all remaining deadlines in the scheduling order, including the deadline for disclosing experts, based on the expectation that Taylor would be transferred to this District and consolidated into Jones. (Doc. 59). The record discloses no opposition by the plaintiffs to this motion, which the Magistrate Judge granted on December 19, 2017 following a telephone conference. The new deadline for the defendants' Rule 26(a)(2) disclosures was established as March 15, 2018. (Doc. 61 at 1). The parties were “cautioned that there will be no further extensions absent a showing of extraordinary circumstances.” (Id.).

         The defendants filed an unopposed motion to transfer Taylor on December 18, 2017. (Doc. 82 at 2). That motion was granted on February 7, 2018. (Doc. 66 at 1, 9-10). Taylor was transferred and opened as a new civil action in this District on February 14, 2018. Taylor v. Coty, Inc., Civil Action No. 18-0070-WS-B (Doc. 7). On March 12, 2018, the plaintiffs moved to consolidate Taylor into Jones, which motion the Court granted on March 19, 2018. (Docs. 73, 85).

         Meanwhile, on March 15, 2018 (the deadline for their Rule 26(a)(2) disclosures), the defendants filed both a notice of service of initial expert witness disclosures, (Doc. 81), and separate but identical motions to extend the deadline for disclosing expert witnesses. (Docs. 76-80). The motions noted that Taylor was not yet part of Jones but presumably soon would be; that the defendants anticipated naming Taylor's treating physicians and medical providers as expert witnesses, with their identities as yet unavailable; and that any expert retained by the defendants would need to have information regarding Taylor's history of using the subject product and similar products. (Id.).

         The plaintiffs filed two briefs in opposition. Both asserted without explanation that the defendants had not demonstrated good cause for purposes of Rule 16(b)(4) or extraordinary circumstances for purposes of the Magistrate Judge's order of December 19, 2017. Both also argued that the defendants were required to move for an extension of time as soon as they believed an extension “might be beneficial to them” and that their failure to file their motion until the March 15 deadline negated good cause or extraordinary circumstances. (Docs. 82, 83).

         In her order, (Doc. 96), the Magistrate Judge acknowledged the prevailing “good cause” standard and its “due diligence” component. She noted the plaintiffs' argument that the defendants had long anticipated that Taylor would be transferred to this District and consolidated into Jones, and further noted that plaintiffs' counsel provided defense counsel with Taylor's medical records prior to transfer.[1] The Magistrate Judge nevertheless focused - as does the Court - on the critical fact that Taylor was not a part of Jones, and thus was not subject to the scheduling orders in Jones, until after the March 15 deadline had passed. (Doc. 96). That is, the defendants could not have been under order in Jones to disclose expert witnesses regarding Taylor before Taylor was made a plaintiff in Jones by consolidation.

         The Magistrate Judge's order gave the defendants until April 13, 2018 within which to make their expert disclosures. (Doc. 96 at 5). The defendants had already, on March 15, 2018, timely identified two expert witnesses, who were treating physicians of Franks and Jones. (Doc. 98-1 at 2). After the Magistrate Judge's order, and just two days after Taylor served discovery responses, the defendants timely identified a single additional expert - one of Taylor's treating physicians. (Docs. 100, 103, 108 at 1). As noted above, this was an expert the defendants were under no obligation to identify until after Taylor was consolidated into Jones.

         Neither before the Magistrate Judge nor before the Court have the plaintiffs offered any legal authority in support of their facially implausible ipse dixit that a party with reason to believe a new case will be consolidated into a separate, existing case must immediately treat the new case as already subject to orders in the existing case and must comply with those orders or be foreclosed from showing good cause for relief from them after consolidation occurs. Nor have they identified any legal authority for the unlikely proposition that a party must move to amend a scheduling order immediately upon first realizing it may need an extension of a deadline and that it forfeits extension if it does not so move until the deadline arrives.[2] Watering down the argument to one of “at least put[ting] the Court on notice … that such an extension may or would likely be necessary in the future, ” (Doc. 97 at 11), does not cure ...


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