United States District Court, D. Kansas
M. G., as parent and next friend of minor, D. G., Plaintiff,
CAMP WOOD YOUNG MEN'S CHRISTIAN ASSOCIATION, et al., Defendants.
MEMORANDUM AND ORDER
E. BIRZER, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's Motion to
Amend Scheduling Order (ECF No. 118). On May
29, 2018, the Court convened a conference to address the
pending motion. Plaintiff appeared through counsel, Michael
J. Kuckelman and Michael T. Crabb. Defendant Camp Wood Young
Men's Christian Association a/k/a/ Camp Wood YMCA
appeared through counsel, Lee M. Baty and Matthew Westering.
Defendant Jacob Ward appeared through counsel, Randy P.
Scheer and Jana V. Richards. After consideration of all
briefing related to the motion, hearing arguments of counsel
and discussing the same, the Court GRANTED
Plaintiff's motion in part and
DENIED Plaintiff's motion in part. The
previously-announced ruling of the Court is now memorialized
Nature of the Case
matter arises from claims of sexual abuse of a minor at YMCA
Camp Wood by defendant Jacob Ward. The case was originally
filed on April 29, 2016 against defendants Camp Wood, Camp
Leaders USA, Smaller Earth, and Jacob Ward. According to
Plaintiff's Rule 26 Disclosures, she claims damages in
excess of 1.8 million dollars. The initial Scheduling Order
entered on April 4, 2017 was either revised or the deadlines
contained therein were extended several times for good cause
and at the request of the parties at different times.
Plaintiff now seeks approval from the Court to amend the
current Scheduling Order, yet another time, to which
procedural standpoint, the case is over 24 months old, but it
has not been without discovery disputes, some of which were
resolved by the parties, and some with Court assistance.
Following exchange of documents identified in the parties
Rule 26 disclosures, extensive pre-scheduling briefing on two
Defendants' Motions to Dismiss, and the Court's
Memorandum and Order dismissing defendants Smaller Earth and
Camp Leaders USA from the case (ECF No. 70), an initial
scheduling order was entered on April 4, 2017 (ECF No. 73).
Having conducted minimal written discovery, three and a half
months later on July 21, 2017, Plaintiff formally designated
one expert (ECF No. 81). The docket does not reflect notice
of any depositions having occurred or noticed prior to
Plaintiff's expert designation.
Scheduling Order was revised at defendant Jacob Ward's
request on September I, 2017 (ECF Nos. 86, 90), and the
parties unsuccessfully mediated the case on September 20,
2017 (ECF No. 89). In October and November 2017, YMCA Camp
Wood requested, and was twice granted, an extension of their
Rule 35 exam and expert deadlines (ECF Nos. 90, 96, 99, 100).
parties continued to engage in discovery, and on January 8,
2018, defendant YMCA Camp Wood certified designation of its
expert disclosures (ECF No. 104). By joint request, the
Scheduling Order was revised again on February 7, 2018,
extending most importantly, the discovery deadline to May 18,
2018 (ECF No. 106).
discovery ongoing, Plaintiff substituted counsel on April 4,
2018 (ECF No. 107). Additional written discovery was
propounded, and on April 19, 2018, defendant Jacob Ward was
noticed up for deposition on May 8, 2018 (ECF No. 112). On
May 2, 2018, additional attorneys were added to the case on
behalf of defendant Jacob Ward, while two others withdrew
from representation (ECF Nos. 113-115). On May 18, 2018,
after conferring with Defendants, Plaintiff sought amendment
of the current Scheduling Order (ECF No. 118), in large part
to designate an additional expert out of time. Defendants
objected, and the subject motion ensued.
Motion to Amend Scheduling Order (ECF No. 118)
Duty to Confer
threshold matter, the Court first considers whether the
parties have sufficiently conferred regarding this discovery
motion, as generally required by D. Kan. Rule 37.2 and
Fed.R.Civ.P. 37(a)(1). In the briefing, it appears the
parties had sufficient discussions regarding revision of the
Scheduling Order, and, during oral argument, counsel for
Plaintiff and both Defendants referenced an amiable working
relationship with each other. As such the Court is satisfied
counsel have adequately conferred as required.
correctly assert the standard justifying an extension of
expert disclosure deadlines out of time is well established.
Fed.R.Civ.P. 6(b)(1)(B) provides in pertinent part,
“When an act may or must be done within a specified
time, the court may, for good cause, extend the time . . . on
motion made after the time has expired if the party failed to
act because of excusable neglect.” Similarly, D. Kan.
Rule 6.1 specifies that the court will not grant extensions
sought after the specified time expires “absent a
showing of excusable neglect.”
is clear that ‘excusable neglect' under Rule 6(b)
is a somewhat ‘elastic concept' and is not limited
strictly to omissions caused by circumstances beyond the
control of the movant. The court generally considers four factors
when determining whether a party's actions establish
excusable neglect, including: 1) the danger of prejudice to
the opposing party; 2) the length of delay caused by the
neglect and its impact on judicial proceedings; 3) the reason
for delay and whether it was in the reasonable control of the
moving party; and 4) the existence of good faith on the part
of the moving party. Normally, the reason for a delay is of
utmost importance, “if not the most important
factor” in the court's analysis. The decision to