United States District Court, S.D. Illinois
June 14, 2005.
PAUL M. STOKES, Plaintiff,
TERRY G. KIPPING, et al., Defendants.
The opinion of the court was delivered by: DONALD G. WILKERSON, Magistrate Judge
This matter is before the Court on the Motion to Extend the
Time to Disclose and Depose Expert Witness(es) filed by the
plaintiff, Paul M. Stokes, on June 3, 2005 (Doc. 37). The motion
On August 4, 2004, this Court entered a scheduling order based
on an agreed joint report of parties in which the following dates
were agreed upon: the plaintiff was to provide a written expert
report by March 1, 2005 and discovery was to be completed by May
9, 2005. On November 8, 2004, the defendant filed a motion to
dismiss. That motion is currently pending before District Judge
David R. Herndon. On May 24, 2005, the defendants filed a motion
for summary judgment. That motion also is pending.
In the present motion, the plaintiff seeks additional time to
disclose an expert who would provide testimony regarding the
plaintiff's damages. The plaintiff indicates that he "did not
want to incur the expense of an expert if the Court should decide
to grant the Defendants' Motion to Dismiss and now the Motion for
Summary Judgment." The plaintiff also asserts that no prejudice
would stem from granting this motion and further seeks a
truncated schedule within which he must disclose and depose his
expert and within which the defendant must provide for a rebuttal expert.
Federal Rule of Civil Procedure 6(b) provides that the Court
may, "for cause shown," enlarge the deadlines previously set in
this case. The Rule further provides: "upon motion made after the
expiration of the specified period permit the act to be done
where the failure to act was the result of excusable
neglect. . . ." The plaintiff here has sought an extension of
time three months after the expiration of the expert report
deadline. This motion also was filed almost a month after the
discovery cut-off. Therefore, the motion is untimely.
Additionally, the plaintiff has failed to show "excusable
neglect." On the contrary, the plaintiff has shown that he
intentionally failed to submit an expert report in order to save
the cost of litigation. While a ruling on the pending motion to
dismiss may negate the need to retain an expert, the plaintiff
has made no showing that this satisfies the requirements of the rule.
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