United States District Court, M.D. Florida, Fort Myers Division
MIRANDO United States Magistrate Judge.
matter comes before the Court upon review of Plaintiff's
Motion for Extension of Time to Designate an Alternate
Damages Expert and File Expert Report and Disclosure of
Expert (Doc. 114) filed on January 9, 2017; Plaintiff's
Motion for Protective Order (Doc. 116) filed on January 10,
2017; and Defendants', Stock Development, LLC, and Brian
Stock (collectively “Stock”), Motion for Approval
for Insurance Adjuster to Appear at the Mediation
Telephonically (Doc. 125) filed on January 27, 2017.
Defendants R.L.R. Investments, LLC, Eagles Landing Villas at
Golden Ocala, LLC, and Golden Ocala Golf & Equestrian
Club Management, LLC (“Golden Ocala”)
(collectively the “Developer Defendants”) and
Stock oppose Plaintiff's motion to designate an alternate
damages expert. Docs. 119, 122. Stock opposes Plaintiff's
motion for protective order, and the Developer Defendants
oppose Stocks' motion to appear telephonically. Docs.
118, 125 at 6.
29, 2015, Plaintiff filed a Complaint against the Developer
Defendants and Stock (collectively “Defendants”).
Doc. 1. Plaintiff is an architectural firm comprised of
licensed architects, conducting business in Collier County,
Florida. Id. ¶ 11. Plaintiff alleges that on
September 22, 2004, Plaintiff entered into a contract with
Stock to create a master plan and architectural designs for
homes (the “Work”) in the Olé and Paseo
communities located in Collier and Lee Counties. Id.
Plaintiff claims that shortly after Plaintiff completed the
requested designs, construction began. Id. ¶
alleges that on March 4, 2009, Stock decided to terminate its
contract with Plaintiff and sent a letter of notice to
Plaintiff. Id. ¶ 13. The letter allegedly
contained the parties' release agreement pursuant to
which Plaintiff released its drawings and specifications to
Stock to be used on the Ole and Paseo projects. Id.
Plaintiff argues that as conditions of the release agreement,
Plaintiff's drawings and specifications remained as
Plaintiff's property, and Plaintiff reserved the right to
exclusive copyright and other intellectual property rights to
the Work. Id. ¶¶ 14-15. The release
agreement also prohibited any future architect's use of
the Work absent an indemnification agreement with Plaintiff.
Id. ¶ 15.
to Plaintiff, in May 2014, it discovered that the Developer
Defendants were using the Work for the development of a
property known as Eagles Landing. Id. ¶¶
17-19. Plaintiff alleges that one or more homes in Eagles
Landing were exact duplicates of the Work. Id.
¶ 19. Plaintiff claims that it issued a cease and desist
letter to Golden Ocala in November 2014 and applied for and
received a Certificate of Copyright Registration of the Work.
Id. ¶¶ 21-23. On December 5, 2014,
Plaintiff allegedly received a letter from Golden Ocala that
Stock licensed the Work to Golden Ocala for limited use in
Eagles Landing. Id. ¶ 24. Plaintiff claims that
Stock had no right to license the Work to the Developer
Defendants. Id. As a result, Plaintiff commenced
this lawsuit, alleging causes of action for copyright
infringement against the Developer Defendants, breach of
contract against Stock, and a declaratory judgment that Stock
had no right to grant a limited license of the Work.
Id. at 6-9.
December 24, 2015, Senior United States District Judge John
E. Steele issued a Case Management and Scheduling Order
(“CMSO”) setting the deadline for motions to add
parties or to amend pleadings to May 2, 2016, the discovery
deadline to September 1, 2016, the deadline for dispositive
motions to November 1, 2016, and a trial term of February 6,
2017. Doc. 48. On July 7, 2016, Plaintiff filed an Emergency
Motion to Extend Expert Report Disclosure Deadline (Doc. 64),
which the Court denied without prejudice because Plaintiff
did not articulate any good cause for extension. Doc. 65 at
3. Plaintiff filed a Motion to Extend Trial Date and Other
Deadlines (Doc. 69) on July 15, 2016, and Stock also filed a
Motion to Extend Trial Date and Other Deadlines in CMSO (Doc.
72) on August 11, 2016. Judge Steele denied without prejudice
both motions on August 30, 2016. Doc. 74 at 28.
September 8, 2016, Plaintiff filed a second motion to extend
the CMSO deadlines. Doc. 77. The Court granted the motion and
extended the remaining deadlines by at least four months with
the emphasis that “the parties' continued diligence
and coordination  will eliminate the parties' future
need to file additional motions to extend the
deadline.” Doc. 80 at 2-3. The Court also entered an
Amended CMSO, extending Plaintiff's deadline for
disclosure of expert reports to October 28, 2016,
Defendants' deadline for disclosure of expert reports to
November 30, 2016, the discovery deadline to February 10,
2017, the mediation deadline to February 17, 2017, the
deadline for dispositive motions to March 31, 2017, and the
trial term to commence on July 3, 2017. Doc. 81.
Plaintiff's Motion for Extension of Time to Designate an
Alternate Damages Expert and File Expert Report and
Disclosure of Report (Doc. 114)
courts have broad discretion when managing their cases in
order to ensure that the cases move to a timely and orderly
conclusion. Chrysler Int'l Corp. v. Chemaly, 280
F.3d 1358, 1360 (11th Cir. 2002). The standards for
modification of deadlines are set forth in Rules 6 and 16 of
the Federal Rules of Civil Procedure. Rule 6 requires a
showing of excusable neglect when, as here, a party files a
motion after the time for filing such motion has expired.
Fed.R.Civ.P. 6(b)(1)(B). Rule 16 requires a showing of good
cause for modification of a court's scheduling order.
Fed.R.Civ.P. 16(b)(4). Thus, a party must demonstrate both
good cause and excusable neglect for filing an untimely
motion. Estate of Mi ler v. Thrifty
Rent-A-Car Sys., Inc., 609 F.Supp.2d 1235, 1252 (M.D.
Fla. 2009). “Th[e] good cause standard precludes
modification unless the schedule cannot be met despite the
diligence of the party seeking the extension.” Sosa
v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir.
1998) (internal quotations and citations omitted).
evaluating whether a party has shown excusable neglect, the
Court considers “‘the danger of prejudice to the
nonmovant, the length of the delay and its potential impact
on judicial proceedings, the reasons for the delay, including
whether it was within the reasonable control of the movant,
and whether the movant acted in good faith.'”
Advanced Estimating Sys., Inc. v. Riney, 130 F.3d.
996, 997-98 (11th Cir. 1997) (quoting Pioneer Investment
Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S.
Plaintiff must demonstrate both good cause and excusable
neglect because Plaintiff filed the present motion over two
months after its deadline of October 28, 2016 to disclose
expert reports had expired. Doc. 114. Plaintiff's present
motion seeks to extend the deadline for disclosure of expert
reports in order to designate a new damages expert.
Id. at 4. Plaintiff also seeks to extend the
discovery deadline of February 10, 2017 by one month for
limited purpose of conducting discovery regarding damages
experts only. Id. at 2.
argues that on October 28, 2016, it served the report of its
damages expert, Michael A. Einhorn, Ph.D.
(“Einhorn”), to all parties. Id. at 2.
Plaintiff alleges that Einhorn resigned as the damages expert
on December 31, 2016, evidenced by Einhorn's email dated
December 31, 2016. Id.; Doc. 114-1. Einhorn stated
in his email that Plaintiff has an unpaid balance of $1, 022
with him. Doc. 114-1. Plaintiff argues that its expert's
sudden resignation constitutes excusable neglect to extend
the deadline to disclose expert reports. Id. at 3-4.
Plaintiff also asserts that Plaintiff will be prejudiced to
continue litigating without a damages expert because damages
are at issue for trial. Id. at 4. Plaintiff claims
that by exercising due diligence, it already has found a new
damages expert, Lloyd J. Morgenstern, C.P.A., to replace
Einhorn. Id. at 5.
Stock and the Developer Defendants oppose the present motion.
Docs. 119, 122. Stock argues that Plaintiff's motion is
extremely prejudicial because obtaining agreements and
scheduling in this matter have been difficult due to the
presence of multiple counsel. Doc. 119 at 4. Furthermore,
Stock asserts that it retained its economist and architect
and expended a significant amount of resources in analyzing
Einhorn's report based on its understanding that Einhorn
would testify. Id. Stock claims that Plaintiff's
new expert is likely to testify to different issues and offer
much broader testimony. Id. As a result, Stock