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PK Studios, Inc. v. R.L.R. Investments, LLC

United States District Court, M.D. Florida, Fort Myers Division

February 7, 2017

PK STUDIOS, INC., Plaintiff,


          CAROL MIRANDO United States Magistrate Judge.

         This 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.

         I. Background

         On June 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. ¶ 12.

         Plaintiff 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.

         According 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.

         On 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.

         On 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.

         II. Plaintiff's Motion for Extension of Time to Designate an Alternate Damages Expert and File Expert Report and Disclosure of Report (Doc. 114)

         District 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).

         When 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. 380 (1993)).

         Here, 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.

         Plaintiff 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.

         Both 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 ...

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