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Estate of McDermed v. Ford Motor Co.

United States District Court, D. Kansas

April 26, 2017

ESTATE OF BETTY LOU McDERMED, Deceased, by and through DIANE L. McDERMED, ADMINISTRATOR, as her representative, and PAUL C. McDERMED AND GEORGIA LEE IOCCO, Individually, Plaintiffs,
v.
FORD MOTOR COMPANY, a Delaware Corporation, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         This case arose from a vehicle collision that occurred in 2012 in Topeka, Kansas between Emma Edwards, who was driving a 1999 Ford Contour, and Mykol Barksdale, who was driving a 1993 Toyota Camry. Decedent Betty McDermed was in the front passenger seat of Edward's Ford Contour. Plaintiffs brought a product liability claim against Ford Motor Company, alleging strict liability based on an alleged design defect and failure to warn. As discussed in the background below, the court ultimately granted defendant's motion for summary judgment. This matter is now before the court on plaintiffs' motions to: (1) reconsider, alter, amend, or relieve plaintiffs from the court's orders (Docs. 169; 170) and entry of judgment (Doc. 172) under D. Kan. Rule 7.3 and Federal Rules of Civil Procedure 59(e) and 60(b); and (2) grant a new trial under D. Kan. Rule 7.3 and Federal Rule of Civil Procedure 59(a)(1)(A) (collectively, the “motions for reconsideration”). (See Docs. 175; 175-1.) For the reasons stated below, the court denies plaintiffs' motions for reconsideration.

         I. Background

         The majority of the background relevant to plaintiffs' motions for reconsideration was summarized in the court's memorandum and order filed on August 3, 2016. (See Doc. 169.)

Defendant filed its Motion to Exclude the Expert Testimony of Plaintiffs' Expert Witness Mr. Shawn Parcells (Doc. 101) and Motion to Exclude the Expert Testimony of Plaintiffs' Expert Witness Mr. David McLellan (Doc. 102) (collectively, “defendant's motions to exclude plaintiffs' experts” [or “defendant's Daubert motions”]) on February 1, 2016. Under D. Kan. Rule 6.1(d)(1), plaintiffs' responses to defendant's motions to exclude plaintiffs' experts were due on February 15, 2016. On February 18, 2016, three days after plaintiffs' response deadline had passed, plaintiffs filed Plaintiffs' Motion for Leave for Additional Time to Respond to Defendant Ford's Motion to Exclude the Testimony of Plaintiffs' Expert Witness Mr. Shawn Parcells (Doc. 111) and Plaintiffs' Motion for Leave for Additional Time to Respond to Defendant Ford's Motion to Exclude Testimony of Plaintiffs' Expert Witness Mr. David McLellan (Doc. 112) (collectively, plaintiffs' “motions for leave to file responses to defendant's Daubert motions out of time”).
Both motions for leave to file responses to defendant's Daubert motions out of time explained that plaintiffs' counsel filed the request after the response deadline passed because plaintiffs' counsel miscalculated the response deadlines by mistakenly applying the version of Fed.R.Civ.P. 6(d) that was effective in 2005. (See Doc. 111 at 1; Doc. 112 at 1.) Both motions for leave to file responses to defendant's Daubert motions out of time also requested extensions of the respective response deadlines up to March 14, 2016 because plaintiffs' counsel needed more time to review recently provided discovery that plaintiffs' counsel believed was pertinent to plaintiffs' claims. (Doc. 111 at 2; Doc. 112 at 2.) In Plaintiffs' Motion for Leave for Additional Time to Respond to Defendant Ford's Motion to Exclude the Testimony of Plaintiffs' Expert Witness Mr. Shawn Parcells, plaintiffs also stated that plaintiffs' expert Mr. Parcells had been unable to review the discovery until that point because he was recovering from complications from surgery. (Doc. 111 at 2.)
Defendant oppose[d] plaintiffs' motions and ask[ed] the court to grant defendant's underlying motions as unopposed because of plaintiffs' failure to show excusable neglect in missing the deadline, particularly in light of plaintiffs' repeated failure to request extensions until after the deadlines passed and other late filings in this case and others. Plaintiffs did not file replies to defendant's responses. Plaintiffs ultimately filed their responses to defendant's motions to exclude plaintiffs' experts on March 14, 2016. (See Docs. [127, ] 130 [].) Defendant substantively replied to the motions. (See Docs. 145, 147.)

(Doc. 169, at 2-3.)

         On August 3, 2016, the court denied plaintiffs' motions for leave to file responses to defendant's Daubert motions out of time. (Id. at 9-10.) Under D. Kan. Rule 6.1(a), “[p]arties must file [a motion for an extension of time] before the specified time expires. Absent a showing of excusable neglect, the court will not grant extensions requested after the specified time expires.” D. Kan. Rule 6.1(a). The court acknowledged its preference “to rule on the merits of motions before it.” (Doc. 169, at 9.) However, after weighing the four factors relevant to an excusable neglect analysis[1]- most importantly the reason for the delay-the court found that plaintiffs failed to show that their counsel's neglect in filing their motions to file out of time was excusable. (Doc. 169, at 6-9.) As a result, the court denied plaintiffs' motions for leave to file responses to defendant's Daubert motions out of time. (Id. at 9-10.)

         The court then explained that under D. Kan. Rule 7.4(b),

[a]bsent a showing of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum. If a responsive brief or memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion.

(Id. at 11 (quoting D. Kan. R. 7.4(b)).) Because plaintiffs failed to file responsive briefs or memorandums within the D. Kan. Rule 6.1(d) time requirements, the court considered defendant's Daubert motions to exclude plaintiffs' experts as unopposed and granted the motions. (Id.)

         On the same day, the court granted defendant's motion for summary judgment. (Doc. 170, at 7.) The court held that “[i]n light of the court's [exclusion of] plaintiffs' experts, plaintiffs' strict liability claims fail[ed] as a matter of law because plaintiff [could not] provide admissible evidence regarding the alleged defect or dangerous conditions and whether those alleged defects or dangerous conditions caused the decedent's injuries or death.” (Id. at 5.) On August 31, 2016, plaintiffs filed their motions for reconsideration.

         II. Legal Standards & Discussion

         D. Kan. Rule 7.3 and Federal Rules of Civil Procedure 59(e) and 60(b) govern plaintiffs' motions for reconsideration. D. Kan. Rule 7.3 allows a party to file a motion asking a judge to reconsider his or her prior order or decision. “Parties seeking reconsideration of dispositive orders or judgments must file a motion pursuant to Fed.R.Civ.P. 59(e) or 60.” D. Kan. Rule 7.3(a). “Parties seeking reconsideration of non-dispositive orders must file a motion within 14 days after the order is filed unless the court extends the time.” D. Kan. Rule 7.3(b). Whether to grant a motion for reconsideration is within the court's discretion.

         A. Federal Rule of Civil Procedure 59(e) and D. ...


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