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Kester v. Rieck

United States District Court, D. Kansas

November 9, 2017

DENNIS KESTER, et al., Plaintiffs,
v.
SCOTT RIECK, et al., Defendants.

          MEMORANDUM & ORDER ON PLAINTIFF'S MOTION TO CONTINUE PROGRESSION

          KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE

         Now before the Court is Plaintiffs' “Motion to Continue Progression” (Doc. 19), which the Court notes should have been titled as a motion to amend the Scheduling Order. For the reasons set forth below, the motion is DENIED.

         BACKGROUND

         The present matter was initially filed in Kansas state court in January 2017 and removed by Defendants to federal court on April 18, 2017. (See Doc. 1 and attachments.) Plaintiff alleges negligence, battery, and violations of due process in regard to injuries he allegedly sustained during a wrestling practice while he was a student with the Pittsburg, Kansas, School District. (See generally Doc. 1-1.)

         The Scheduling Order in this case was entered on June 9, 2017, and included a deadline of September 1, 2017, for Plaintiffs to designate retained experts. (Doc. 14, at 4.) The parties engaged in mediation of the case on October 13, 2017. (Doc. 18.) The parties notified the Court of this mediation on September 13, 2017 (Doc. 18), almost two weeks after the expiration of Plaintiff's deadline to designate retained experts.

         Plaintiffs bring the present motion “for an Order Pursuant to Rule 16 continuing the deadlines in the Order Setting Final Schedule for Progression of Case (Doc. 14).” (Doc. 19, at 1.) Defense counsel does not object to the motion except as to Plaintiff's deadline to designate retained experts. (Id.)

         DISCUSSION

         The deadline sought to be extended expired on September 1, 2017, more than six weeks before the present motion was filed. Plaintiffs argue they have established “good cause” for the requested extension pursuant to Fed.R.Civ.P. 16. Plaintiff's counsel indicates he had a trial in the middle of August 2017 and subsequently focused on preparing for mediation in this case, which was scheduled for October 13, 2017. (Doc. 19-2, at 1.)

Rather than devote time and money to retain experts, I decided that Plaintiffs' interests would be better served to focus on preparing the case for mediation in hopes that we could resolve the matter. As such, we did not retain or disclose a medical expert in this matter which were due by Plaintiffs on September 1, 2017.

(Id., at 1-2.)

         Defendants oppose Plaintiff's request to extend their deadline to designate retained experts, noting the motion was filed more than 45 days after the expiration of the deadline. In support of their position, Defendants cite Fed.R.Civ.P. 6(b), which states that time to perform an act may be extended after the expiration of the related deadline where the failure to comply with that deadline was the result of “excusable neglect.” Similarly, under D. Kan. Rule 6.1(a):

All motions for an extension of time to perform an act required or allowed to be done within a specified time must show:
(1) whether there has been prior consultation with other parties and the views ...

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