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Funk v. Pinnacle Health Facilities XXXIII, LP

United States District Court, D. Kansas

December 12, 2018

MARK FUNK, et al., Plaintiffs,



         Before the Court is Plaintiffs' Motion to Extend Close of Discovery. (Doc. 119.) Plaintiffs request an extension of the discovery deadline to March 16, 2019. Defendant opposes this motion, arguing that Plaintiffs have not shown good cause for the extension. For the reasons set forth herein, Plaintiffs' motion is GRANTED in part.


         This case has a long and tortured procedural history, complicated by a continuing lack of cooperation between counsel. The case was filed in state court on January 7, 2017. (Doc. 1.) Defendants were served with process on April 4 and 5, 2017. The case was removed to this court by Defendants on May 2, 2017. (Doc. 1.) Defendants filed Answers on May 3 and 9, 2017. (Docs. 6 and 7.) On May 9, 2017, Defendant Pinnacle filed a motion to dismiss Count I of the Petition. (Doc. 9.) That motion was granted on August 15, 2017. (Doc. 21.)

         On August 21, 2017, the undersigned Magistrate Judge issued a notice setting the initial scheduling conference for October 12, 2017, and setting a deadline for October 5 for the parties planning meeting and initial disclosures. (Doc. 22.) According to the Report of Parties' Planning Conference submitted to the Magistrate Judge, the parties conducted their planning conference on September 15, 2017.

         On October 5, 2017, Defendant Pinnacle Health served its initial disclosures. (Doc. 24.) On October 12, 2018, Defendant served discovery on Plaintiffs. (Doc. 25.) By the time of the scheduling conference it appears that Plaintiffs had served their initial disclosures, although the court file does not reflect a notice of same. (Doc. 26.)

         The Court held a Scheduling Conference on October 12, 2017, and entered a Scheduling Order on October 13. (Doc. 26.) The discovery deadline was set for November 16, 2018. Among other dates set were deadlines for expert disclosures (Plaintiffs by April 25, 2018, Defendant by July 2, 2018, and rebuttal experts by August 2, 2018.) The final pretrial conference was set for December 4, 2018. A trial setting of June 11, 2019, was provided by the District Judge. The Court entered an Order for Inspection and Reproduction of medical records on January 12, 2018. (Doc. 27.)

         Between the parties' planning conference of September 15, 2017, and the filing by Plaintiffs of an unopposed motion to extend deadlines on April 25, 2017 (Doc. 32) - a period of over seven months - the court file does not reflect that the parties conducted any discovery other than the discovery issued by Defendant on October 12, 2017. (Doc. 25.) The unopposed motion to extend deadlines requested modest adjustments to expert disclosure deadlines (Plaintiff's disclosures due May 2, 2018, Defendant's due July 9, 2018, and rebuttal disclosures due August 9, 2018) and modified the mediation schedule. The motion was granted through a Revised Scheduling Order entered on April 27, 2018. (Doc. 33.) The Discovery deadline, Pretrial Conference, and subsequent dates were not changed. During the period before the Revised Scheduling Order, Plaintiff reached a settlement with one Defendant, with Defendant Pinnacle (hereinafter “Defendant”) remaining. (Docs. 30, 31 (sealed), 38.)

         On May 1, 2018, Plaintiffs served their expert disclosures. (Doc. 37, at 3.) On May 30, 2018, Defendant filed a motion for a status conference. (Doc. 37.) Defendant claimed difficulty scheduling depositions of Plaintiffs and Plaintiffs' experts. Defendant claimed that several attempts had been made to schedule depositions since February, but that each attempt had been unsuccessful or the depositions had been cancelled by Plaintiffs. Defendant requested the Court's assistance in scheduling depositions. Defendant complained that Plaintiffs had not complied with settlement deadlines and that Plaintiffs had conducted no discovery. Defendant requested a continuance of at least 30 days to provide its expert reports.

         The Court held a hearing on June 13, 2018. (Doc. 49.) The Court adjusted the mediation deadline and extended Defendant's expert disclosure deadline to August 30, 2018, with the rebuttal expert disclosure deadline moved to October 12, 2018. Other unexpired deadlines remained unchanged.

         Also considered at that hearing was Defendant's motion to quash a deposition noticed unilaterally by Plaintiff. (Doc. 41.) In an Order entered on June 14, 2018, as a result of that hearing (Doc. 50), the Court noted that

[t]his Court's deposition guidelines counsel cooperation between counsel in scheduling depositions. These laudable principals have not been generously applied in this case. The parties' communication concerning the scheduling of depositions has been ineffective, requiring Court intervention.

(Doc. 50 page 2.) The Court then ordered specific dates for the completion of specific depositions.

         On July 29, 2018, Plaintiffs filed a motion to quash and for a protective order concerning Defendant's scheduling deposition of an expert. (Doc. 61.) Plaintiffs requested that the deposition not be completed until after Defendant's experts were disclosed and, claiming that defense counsel had been disrespectful to a previous expert during her deposition, requested that defense counsel be admonished to be polite. The request to depose Plaintiffs' experts after Defendant's disclosures was contrary to the ruling ...

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