United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE
case comes before the Court without a hearing on Defendant
Oak Meadows Limited Partnership's Motion for Extension of
Deadline (Doc. 49).
2007, Oak Meadows, as owner-developer, contracted with
Plaintiff WaterMark Construction, L.P., as general
contractor, for the construction of an apartment complex in
Brevard County, Florida (Doc. 10-2, ¶¶ 7-8). In
2014, Oak Meadows sued WaterMark in state court, alleging
that the complex was improperly constructed (Id.).
WaterMark denies liability and has filed a third party
complaint against multiple subcontractors, one of which is
Defendant Apache Stucco, Inc. (Doc. 10-3).
Southern-Owners Insurance Company issued a policy of
insurance to Apache (Doc. 10, ¶ 11). The policy lists
WaterMark as an additional insured (Id., ¶ 13).
WaterMark filed this lawsuit seeking a declaratory judgment
that the Southern-Owners' policy covers Oak Meadows'
claims that are based on the work performed by Apache
(Id.). WaterMark also seeks reformation of the
policy to provide coverage for Oak Meadow's claims based
upon the work done by Apache (Id.). Southern-Owners
has answered and cross-claimed against Oak Meadows and
Apache, for a declaration that it does not have a duty to
defend or indemnify Apache against WaterMark's claims
made in the state court case (Doc. 16).
case was filed in the Tampa division of the court (Doc. 1).
That court entered a Case Management and Scheduling Order
setting the following deadlines:
Plaintiff's Expert Disclosure
March 23, 2018
Defendants' Expert Disclosures
March 30, 2018
April 30, 2018
Dispositive Motions Deadline
May 30, 2018
case was subsequently transferred to this Court (Doc. 33). On
November 2, 2017, this Court entered an Amended Case
Management and Scheduling Order which adopts the discovery
and dispositive motion deadlines set by the Tampa court (Doc.
39). Oak Meadows is asking this Court to extend to April 30,
2018, the deadline for it to serve its expert disclosures
(Doc. 49). As grounds, it says that the scheduling conference
which preceded entry of the Tampa Case Management and
Scheduling Order occurred before it had appeared in the case
(Id., ¶ 6). Oak Meadows also points out that
although it and Southern-Owners are both Defendants in this
case, their interests do not align (Id.,
¶¶ 3-4). Lastly, Oak Meadows argues that the
generalized averments of Southern-Owners' cross-claim
make it difficult to defend (Id., ¶ 5).
is the only party that opposes Oak Meadows' motion
(Id., ¶ 8). It argues that if the motion is
granted, it will not have an opportunity to depose Oak
Meadows' experts or obtain rebuttal experts (Doc. 50,
¶¶ 6-7). To resolve this dispute, Southern-Owners
proposes that the Court set a new deadline, prior to the
discovery deadline, for the disclosure of rebuttal experts by
all parties (Id., ¶¶ 8-9).
Rules 3.01(a) and (b) require a party making or defending a
motion to include in their paper, a memorandum of legal
authorities. Oak Meadows and Southern-Owners have both failed
to comply with the Local Rules.
Meadows seeks modification of the Amended Case Management and
Scheduling Order. A scheduling order can only be modified
“upon a showing of good cause.” Fed.R.Civ.P.
16(b). “This good cause standard precludes modification
unless the schedule cannot ‘be met despite the
diligence of the party seeking the extension.'”
Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418
(11th Cir. 1998) (quoting Fed.R.Civ.P. 16 advisory
committee note). “'If [a] party was not diligent,
the [good cause] inquiry should end.'” Id.
(quoting Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 609 (9thCir. 1992). Oak Meadows motion
fails to allege or show that it has been diligent, or that it
cannot meet the expert disclosure deadline despite the
exercise of diligence.
Amended Case Management and Scheduling Order provides:
2. Extensions of Other Deadlines Disfavored
- Motions for an extension of other deadlines
established in this order, including motions for an extension
of the discovery period, are disfavored. The deadline will
not be extended absent a showing of good cause. Fed.R.Civ.P.
16(b). Failure to complete discovery within the time
established by this Order shall not constitute cause for
continuance. A motion to extend an established deadline
normally will be denied if the motion fails to recite that:
1) the additional discovery is necessary for specified
reasons; 2) all parties agree that the extension will not
affect the dispositive motions deadline and trial date; 3)
all parties agree that any discovery conducted after the
dispositive motions date established in this Order will not
be available for summary judgment purposes; and 4) no party
will use the granting of the extension in support of a motion
to extend another date or deadline. The movant must show that
the failure to complete discovery is not the result of lack
of diligence in pursuing discovery. Local Rule 3.09(b). The
filing of a motion for extension of time does not toll the
time for compliance with deadlines established by Rule or
(Doc. 39 at 6). Oak Meadows' motion does not satisfy