United States District Court, C.D. Illinois, Peoria Division
SHERYL JOHNSON, Administrator of the Estate of Chris Johnson, Deceased, Plaintiff,
DECATUR JUNCTION RAILWAY, CO., Defendant.
OPINION REGARDING PENDING MOTIONS
THOMAS P. SCHANZLE-HASKINS, Magistrate Judge.
A. PENDING MOTIONS
Currently pending before the Court are the following motions:
1) Defendant's Motion to Strike Plaintiff's Third Amended Complaint (d/e 65) (Motion 65);
2) Plaintiff's Request for Leave to File Fourth Amended Complaint (d/e 71) (Motion 71);
3) Defendant's Motion to Deem Admitted or, in the Alternative, to Compel Full and Complete Responses to Defendant's Second Requests for Admission and Related Interrogatories and Requests for Production of Documents (d/e 76) (Motion 76);
4) Plaintiff's Motion for Leave to File Response to Defendant's Motion to Compel Admissions (d/e 81) (Motion 81);
5) Defendant's Unopposed Motion for Leave to File, in Excess of 15 Page Limit, its Response and Brief in Support of Response to Plaintiff's Motion for Leave to File Long Past Due Response to Defendant's Motion to Compel Responses to Defendant's Admission Requests (d/e 85) (Motion 85);
6) Defendant's Motion in Limine to Preclude Plaintiff from Calling Any Expert Witnesses Except for Dr. Michael Abouassaly, Dr. Douglas Henrich, Dr. Joann Milani, and Dr. Peter Hauslein and Limiting Their Testimony to Any Medical or Evaluation Reports Generated by These Medical Practitioners and Their Deposition Testimony up Through the Present Date (d/e 66) (Motion 66);
7) Plaintiff's Motion to Extend Time to Respond to Defendant's Motion in Limine to Wednesday, May 21, 2014 (d/e 74) (Motion 74);
8) Defendant's Motion for Leave to File a Reply in Support of Its Motion in Limine to Preclude Plaintiff from Calling any Expert Witnesses Except for Dr. Michael Abouassaly, Dr. Douglas Henrich, Dr. Joann Milani, and Dr. Peter Hauslein and Limiting Their Testimony to any Medical or Evaluation Reports Generated by These Medical Practitioners and Their Deposition Testimony Up Through the Present Date Instanter (d/e 77) (Motion 77);
9) Defendant's Motion to Strike August 4, 2014 "Plaintiff's Exhibits in Support of Response to Defendant's Motion to Compel Admission" (d/e 89) (Motion 89);
10) Defendant's Motion to Supplement Its May 23, 2014 Brief in Support of Its Motion to Deem Admitted or, in the alternative, to Compel Full and Complete Responses to Defendant's Second Requests for Admission and Related Interrogatories and Requests for Production of Documents (d/e 82) (Motion 82);
11) Supplement to Defendant's Motion to Supplement Its May 23, 2014 Brief in Support of Its Motion to Deem Admitted or, in the alternative, to Compel Full and Complete Responses to Defendant's Second Requests for Admission and Related Interrogatories and Requests for Production of Documents (d/e 83) (Motion 83); and,
12) Plaintiff's Motion for Extension of Discovery and Entry of Scheduling Order (d/e 67) (Motion 67).
The parties consented to have this matter heard before this Court.
Notice, Consent, and Reference of a Civil Action to a Magistrate Judge and Reference Order entered March 24, 2014 (d/e 61).
The Court will address the Motions in the order listed above. In order to set the factual and procedural predicate for the ruling on the motions, it is necessary to recite the progression of this litigation.
B. PROGRESSION OF LITIGATION
The original Complaint in this matter was filed on November 2, 2011. The Complaint consisted of an injury claim under the Federal Employers Liability Act, 45 U.S.C. 51 et seq. (FELA). The Plaintiff named as Defendants Pioneer Railcorp, Inc. (Pioneer) and Decatur Junction Railway Co. (Decatur). The factual basis of the Plaintiff's claim was the alleged hearing loss the Plaintiff suffered as a result of use of a sledge hammer to dislodge a piston in an engine block on September 23, 2010.
On February 2, 2012, Plaintiff filed an Amended Complaint substituting Pioneer Railroad Services, Inc. (Pioneer Services) for Pioneer Railcorp, Inc. as a Defendant. Amended Complaint (d/e 7). The allegations of the Amended Complaint remained substantially the same as the Complaint.
On March 6, 2012, Pioneer Services filed a Motion to Dismiss the Amended Complaint Pursuant to Fed.R.Civ.P. 12(B)(6) (d/e 10) (Motion to Dismiss). The Motion to Dismiss argued FELA imposed no liability on Pioneer Services because it was not a common carrier railroad. Plaintiff did not respond to the Motion to Dismiss. However, Plaintiff, Decatur and Pioneer Services, stipulated that Pioneer Services was not an FELA employer of the Plaintiff on September 23, 2010. Based on that stipulation (d/e 15), the Court dismissed the claims against Pioneer Services with prejudice and denied the Motion to Dismiss filed by Pioneer Services as moot. Text Order entered 4/13/2012.
On May 10, 2012, a Scheduling Order (d/e 17) was entered. Under the Scheduling Order, initial Rule 26 disclosures were due by May 31, 2012, and Plaintiff's expert disclosures were due by January 11, 2013.
On September 11, 2012, the Court allowed the parties' Joint Motion to Extend Time to Join Additional Parties to November 2, 2012 (d/e 22).
On December 5, 2012, the Court granted the parties' Joint Motion to Extend Pretrial Deadlines and Reschedule Trial Date (d/e 24).
On April 8, 2013, the Court allowed the parties' Joint Motion to Extend Pretrial Deadlines (d/e 26) and entered a Second Amended Scheduling Order (d/e 28).
Plaintiff Chris Johnson died on May 21, 2013 and Sheryl Johnson was substituted as the Plaintiff in her capacity as administrator of the estate of the decedent. Text Order entered 7/30/2013.
On August 8, 2013, the Court entered its Third Order Extending Pretrial Deadlines and Rescheduling of Trial Date (d/e 32).
On September 23, 2013, the Plaintiff filed a Motion to Alter April 13, 2012 Stipulation and Order and for Leave to File Second Amended Complaint (d/e 33) (Motion 33) requesting the Court to vacate the April 13, 2012 Stipulation and Order Dismissing Pioneer Railroad Services and for leave to file a Second Amended Complaint. Plaintiff indicated she had learned through discovery that Pioneer Services may have been Chris Johnson's employer when he was injured at work on September 23, 2010. Motion 33, at 3-4. The Motion to Alter and Amend also sought to amend the complaint to add a death claim. Pioneer Services objected to the motion and Decatur did not respond.
Attached to Motion 33 was a proposed Second Amended Complaint (d/e 33-1). The proposed Second Amended Complaint added Pioneer Railroad Services, Inc. as a Defendant and added a death claim.
On March 28, 2014, the Court entered it's Opinion (d/e 62) on Motion 33. The Court had previously ordered the parties to file supplemental memoranda to address whether Pioneer Services could be deemed a common carrier under FELA (45 U.S.C. 57), "as a corporation charged with the duty of management and operation of the business of a common carrier". Pioneer Services filed a supplemental memorandum. Plaintiff did not file a supplemental memorandum.
Based upon the Motion 33, Pioneer's response, and the supplemental memorandum filed by Pioneer, the Court denied Motion 33. The Court determined, after review of the evidence presented and the applicable law, that Pioneer Services was not a common carrier under FELA, Section 57. Consequently, the Court denied the Plaintiff's request to file an amended complaint to put Pioneer Services back in the case as a Defendant. With regard to the additional death claims against Decatur, the Court noted that Decatur did not object to the Motion to Alter and Amend and allowed the Plaintiff to add the additional claims against Decatur "as set forth in the proposed Second Amended Complaint" (emphasis added).
The Court ordered the Plaintiff to file, by April 11, 2014, a revised Second Amended Complaint that contained the allowed additional claims, but did not include Pioneer Railroad Services, Inc. as a Defendant.
Rather than filing a revised Second Amended Complaint, as directed by the Court, four days after the deadline ordered by the Court, Plaintiff filed a Motion for Leave to File Third Amended Complaint Instanter (d/e 64) (Motion 64) citing an "implacable deadline" in an arbitration case as the reason for the late filing. Motion 64 contained the following representation by Plaintiff's counsel:
4. Plaintiff has made the changes to the Second Amended Complaint eliminating defendant Pioneer Railroad Services and is tendering the Third Amended Complaint asserting the wrongful death claims against Decatur Junction Railroad Company.
Based upon this representation, the Court allowed the Motion 64. Unfortunately, the representation made by Plaintiff's counsel was not true. The Third Amended Complaint failed to remove Pioneer Services as a Defendant from the body of the complaint. While Pioneer Services was removed from the caption of the complaint, paragraphs 7-9, 22, 24, and 27 all continued to treat Pioneer Services as a Defendant. Additionally, the prayer for relief requested that the Court award judgment against Defendants Pioneer Services and Decatur "joint and severally". The Plaintiff added the death claims to the Third Amended Complaint. However, contrary to the Court's Order, the Plaintiff changed the form of the death claim included in the Third Amended Complaint by deleting language contained in the proposed Second Amended Complaint and adding language not contained in the proposed Second Amended Complaint.
Between September 23, 2013, the date of the filing of Motion 33, and the ruling of the Court on that motion on March 28, 2014 (d/e 62), the Court entered a Fourth Order Extending Pretrial Deadlines (d/e 45), a Fifth Order Extending Some Pretrial Deadlines (d/e 49) (Fifth Order), and Sixth Joint Motion Extending One Pretrial Deadline (Text Order entered 3/24/2014). The parties jointly filed these requests to extend deadlines. The Fifth Order set deadlines for the Plaintiff to identify all testifying experts and to provide Rule 26 expert reports by April 1, 2014, and for the Defendant to identify testifying experts and provide Rule 26 expert reports by June 1, 2014. The Fifth Order, as had the prior orders extending deadlines, provided that each party would be limited to 20 depositions not to exceed eight hours each.
The Sixth Joint Motion Extending One Pretrial Deadline (d/e 60) asked only that the deadline for discovery of fact witnesses be extended until May 7, 2014, instead of April 15, 2014 to complete fact discovery, including depositions. That request was granted in a Text Order (3/24/2014). The Text Order indicated that no other dates contemplated by the prior discovery order entered on January 9, 2014 (d/e 49) would be affected. Thus it was contemplated by the parties and stated by the Court that all other deadlines imposed by the Court's Fifth Order "will continue to be imposed and are otherwise effective".
On April 22, 2014, counsel for Defendant filed Motion 65 to strike the Third Amended Complaint. Motion 65 pointed out, as noted above, that the Third Amended Complaint did not follow the order of the Court which directed a revised Second Amended Complaint.
On May 12, 2014, the Plaintiff filed Motion 71 as part of a combined Response to Defendant's Motion to Strike Portions of Third Amended Complaint and for Leave to File Fourth Amended Complaint. Attached to Motion 71 was a proposed Fourth Amended Complaint.
On April 27, 2014, almost a month after the deadline for the Plaintiff to identify testifying experts and provide Rule 26 expert reports, Defendant filed its Motion 66 to bar certain expert testimony. The stated basis for Motion 66 was that the Plaintiff had not provided expert disclosures as required by the Court scheduling order and Federal Rule of Civil Procedure 26(a)(2). The deadline for Plaintiff's response to the motion was May 15, 2014.
On April 29, 2014, Plaintiff filed Motion 67 to extend discovery and modify the Scheduling Order.
On May 16, 2014, after expiration of the deadline to respond to Motion 66 to exclude certain experts, Plaintiff filed Motion 74 to extend the deadline to respond to Defendant's Motion 66 until May 21, 2014. On May 21, 2014, Plaintiff filed her Response (d/e 75) to Defendant's Motion 66.
On May 23, 2014, the Defendant filed Motion 76 to challenge the sufficiency of Plaintiff's answers to Defendant's Rule 36 requests to admit. Certain exhibits referred to in Motion 76 were not attached to the Motion. As a consequence, seventy days after filing Motion 76, the Defendant filed Motions 82 and 83 to add the exhibits which were not attached to the original Motion 76.
On May 24, 2014, Defendant filed Motion 77 asking for leave to file a reply to Plaintiff's Response to Motion 66.
On June 13, 2014, Plaintiff filed Motion 79 to request an extension of time until June 23, 2014 to respond to Motion 76.
On July 31, 2014, Plaintiff filed Motion 81 for leave to file a response to Motion 76.
On August 4, 2014, Plaintiff filed "Plaintiff's Exhibits in Support of Her Response to Defendant's Motion to Compel Admission" (d/e 84). This filing contained exhibits which were not attached to the response attached to Plaintiff's Motion 81.
On August 15, 2014, Defendant filed Motion 89 to strike the exhibits ...