MICHAEL S. BERG, Magistrate Judge.
On January 10, 2020, Defendants Old Gringo, Inc. ("OGI"), Old Gringo S.A. de C.V. ("OGS"), Ernest Tarut, and Yan Ferry filed their "Ex Parte Application for Leave to File Motion to Exclude Plaintiff's Expert Report as Untimely." (ECF No. 212.) Plaintiff filed her Opposition on January 14, 2020. (ECF No. 218.) For the reasons discussed in this order, the Court
Plaintiff, a former designer for Defendants Old Gringo, Inc. ("OGI") and Old Gringo, S.A. de C.V. ("OGS") (a Western wear manufacturer and distributor and its Mexican sister company, together the "Old Gringo Companies") alleges that the principles and officers of the Old Gringo Companies, Defendants Ernest Tarut ("Tarut") and Yan Ferry ("Ferry"), told her in January 2013 that they were giving her a 5% ownership interest in the Old Gringo Companies, but in fact, no such interest was conveyed. (
This case was filed on September 28, 2017. (ECF No. 1.) The deadline for expert disclosures was August 17, 2018 and the deadline for rebuttal disclosures was September 17, 2018. (ECF No. 18 at 2.) All other motions to amend or join parties and motions in limine were to be filed no later than January 25, 2019. (ECF No. 33 at 4.) Pretrial disclosures were due on January 13, 2020 and the parties were to meet and confer pursuant to Civil Local Rule 16.1.f.4.a by January 20, 2020. (ECF No. 179 at 6-7.) Plaintiff's counsel is to provide opposing counsel with the proposed pretrial order by January 27, 2020, and the parties are to lodge the proposed pretrial order by February 3, 2020. (
Plaintiff first served Defendants with a report from her valuation expert, Joshua Vannetti, on or about September 19, 2018. (ECF No. 218 at 2.) Plaintiff served an updated report on or about April 24, 2019. (
Plaintiff filed the instant motion, seeking leave to file a motion to exclude Plaintiff's December 20, 2019 report, on January 10, 2020. (ECF No. 212.) Plaintiff filed an opposition on January 14, 2020. (ECF No. 218.)
In the instant motion, Defendants request leave to file a "Motion to Exclude Plaintiff's Expert Report as Untimely," and also request that "the Court stay the deadline for Defendant's Expert Rebuttal Report until after the Court has ruled on Defendant's proposed motion, or at least until January 20, 2020, which is the 30-day deadline for review and rebuttal of an original report, per Rule 26(a)(2)(D)(ii)." (ECF No. 212-1 at 3.) Plaintiff's Opposition, addresses the substance of the motion that Defendants seek leave to file, but does not assert that Plaintiff's should not be permitted to file the motion in the first instance. (
A scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). This good cause standard "primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule `if it cannot reasonably be met despite the diligence of the party seeking the extension.'"
In support of their requests, Defendants argue that they could not have possibly filed the instant motion before the January 25, 2019 deadline, because they had not yet received the expert report they now seek to challenge. (ECF No. 212-1 at 4.) They further note that Plaintiff's late disclosure has placed Defendants "in a difficult situation" by disclosing the expert report in question fewer than 30 days before the deadline for pretrial disclosures. (
For the foregoing reasons, the Court
1. Defendants may file a motion to exclude Plaintiff's expert report as untimely on or before
2. Defendants have until