Koester v. Mid Rivers Mall CMBS, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

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DEBORAH KOESTER,

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Plaintiff,

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v. Case No. 4:23-CV-01306-SPM

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MID RIVERS MALL CMBS, LLC,

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Defendant.

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MEMORANDUM AND ORDER

This case is before the Court on Plaintiff’s Motion and Supporting Memorandum to Amend

the Scheduling Order and Extend the Deadline for Expert Depositions. (ECF No. 47). The motion

has been fully briefed. For the following reasons, the motion will be denied.

I. BACKGROUND

This case arises from an incident on February 18, 2023, in which Plaintiff Deborah Koester

allegedly fell and sustained significant injuries as a result of uneven flooring at a premises owned

by Defendant Mid Rivers Mall CMBS, LLC. On September 20, 2023, Plaintiff filed her petition

in the Circuit Court of St. Charles County, State of Missouri. On October 17, 2023, Defendant

removed the case to this Court. On December 5, 2023, following a scheduling conference attended

by counsel for both parties, the Court entered a Case Management Order setting a March 1, 2024,

deadline for Plaintiff to disclose all expert witnesses and an April 15, 2024, deadline for Plaintiff

to make expert witnesses available for depositions and have depositions completed. On April 12,

2024, the parties filed a joint motion to modify the scheduling order, requesting to extend the

deadline for completion of depositions of Plaintiff’s experts from April 15, 2024, to May 30, 2024.

On April 22, 2024, the Court granted the joint motion. On June 11, 2024, as directed by the Court

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disclosures, the parties filed a Joint Motion to Amend Case Management Order, in which they

requested that the deadline for Plaintiff to make her non-retained experts offering opinion on

causation available for depositions, and have depositions completed, no later than July 17, 2024.

On June 12, 2024, the Court granted the motion and entered a Second Amended Case Management

Order reflecting that new deadline, noting that it appeared from the motion that the parties had

resolved their dispute over Plaintiff’s expert disclosures. The Court also set the matter for a routine

case status conference to occur on September 17, 2024.

On September 17, 2024, the parties appeared by Zoom for the case status conference. At

the conference, counsel informed the Court that depositions of Plaintiff’s experts had not yet been

completed. Plaintiff’s counsel indicated that Plaintiff still wanted to produce experts for

deposition, so the Court ordered Plaintiff to file a motion to amend the Second Amended Case

Management Order, with reasons and legal arguments in support of such an amendment. Pursuant

to that order, Plaintiff filed the instant motion, which Defendant opposes.

In her motion, Plaintiff states that her counsel made multiple attempts to obtain deposition

dates from Plaintiff’s treating physician and non-retained expert, Dr. Pascale-Salem, prior to the

deadline of July 17, 2024. She cites an April 15 email seeking deposition dates, a June 12 email

seeking deposition dates, and a July 9 email and subpoena duces tecum commanding Dr. Pascale-

Salem to appear at a deposition on July 15. The July 9 email also references prior phone

communications, though it is unclear when those occurred. She also cites emails showing that on

July 11 and 12, Dr. Salem’s office informed Plaintiff’s counsel that Dr. Pascale-Salem would be

out of the country through July 31. On July 12, Plaintiff’s counsel emailed defense counsel, stating

that August 2 would work for the deposition and asking that defense counsel forward the notice of

deposition when available. On July 15, Plaintiff’s counsel and defense counsel conferred by

telephone, at which time defense counsel told Plaintiff’s counsel she would be amenable to

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deadline in the CMO. It appears that Plaintiff took no further steps with respect to the applicable

deadline or Dr. Pascale-Salem’s deposition until the issue was raised at the September 17 case

status conference.

Plaintiff states that her failure to comply with the July 17 expert deposition deadline was

caused by Dr. Pascale-Salem’s lack of response to her initial emails, Dr. Pascale-Salem’s absence

from the country for much of the month of July, and Plaintiff’s counsel’s office unexpected staffing

issues during this time frame, including the departure of an attorney and of the paralegal who was

coordinating the deposition. Plaintiff states that she inadvertently failed to ask the Court for an

extension prior to the July 17 deadline due to these staffing transitions. Plaintiff also states that Dr.

Pascale-Salem is ready and willing to provide her testimony on a day agreeable to all parties, that

Dr. Pascale-Salem’s testimony is essential to Plaintiff’s case, and that the absence of Dr. Pascale’s

testimony absence could unjustly prejudice Plaintiff’s case. Plaintiff requests that the Court extend

the deadline for deposing her experts to October 31, 2024. Plaintiff also requests extensions to the

subsequent deadlines in the case but proposes keeping the trial-ready deadline as February 17,

2025.

II. DISCUSSION

A. Scope of the relief sought in Plaintiff’s motion

As preliminary matter, the Court will address the scope of the relief sought in Plaintiff’s

motion. Although Plaintiff proposes a new deadline to “make her non-retained experts offering

opinions on causation available for depositions, and have depositions completed,” Proposed Third

Amended Case Management Order, ECF No. 48, at ¶ 5, her motion mentions only a single

expert—Dr. Pascale-Salem. Plaintiff’s argument that the Court should grant an extension to this

deadline is based entirely on her contentions that she made reasonable attempts to set Dr. Pascale-

Salem’s deposition before the July 17 deadline, that Dr. Pascale-Salem is available for deposition

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Plaintiff’s motion to be solely a request to extend the deadline for deposing Dr. Pascale-Salem.1

B. Analysis

Under the Court’s Second Amended Case Management Order, the deadline for completion

of Plaintiff’s expert depositions was July 17, 2024. Rule 16(b)(4) of the Federal Rules of Civil

Procedure provides that a schedule entered by the Court “may be modified only for good cause

and with the judge’s consent,” Fed. R. Civ. P. 16(b)(4). Because Plaintiff’s motion was filed after

the relevant deadline in the scheduling order had expired, a second rule may also be implicated:

Rule 6(b)(1), which provides that “[w]hen an act may or must be done within a specified time, the

court may, for good cause, extend the time: . . . (B) on motion made after the time has expired if

the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). There is some

conflicting authority regarding whether Rule 16(b)(4)’s good cause standard, Rule 6(b)(1)(B)’s

excusable neglect standard, or both standards, must be satisfied when a movant seeks to extend a

deadline in a scheduling order by motion made after the deadline has expired.2 The Court is

1 In its opposition, Defendant states that Plaintiff’s counsel has indicated that she might hire

additional experts, including a liability expert and a provider to discuss Plaintiff’s alleged back

injury. See Def.’s Mem. Opp’n, ECF No. 50, at p. 4. Plaintiff’s expert disclosure deadline expired

March 1, and Plaintiff has not requested an extension of that deadline. Plaintiff may not disclose

any new experts at this time.

2 See, e.g., LeFever v. Castellanos, No. 4:20CV3066, 2021 WL 5416240, at *1-*2 (D. Neb. Nov.

19, 2021) (beginning its analysis with Rule 16(b)(4)’s good cause standard but noting that “[t]here

is a split of authority as to whether a motion to modify a progression schedule that is filed after the

deadline has passed must instead satisfy the ‘excusable neglect’ standard of Rule 6(b)(1)(B)”;

stating that “[p]erhaps both standards apply”; and granting the motion because the excusable

neglect standard was satisfied); Thomson v. Int’l Paper Co., No. 20-CV-0037-LTS-KEM, 2020

WL 13042585, at *1 & n.1 (N.D. Iowa June 9, 2020) (applying Rule 16(b)(4)’s good cause

standard to a motion for leave to file an amended complaint filed after the applicable deadline, but

noting that “some district courts in the Eighth Circuit have suggested that a party must also

demonstrate excusable neglect to amend a pleading after the deadline for amendment has expired”;

finding that if Rule 6(b)(1)(B)’s excusable neglect standard applied, the result would be the same);

Younie v. City of Hartley, No. C14-4090-CJW, 2016 WL 2864442, at *3 (N.D. Iowa May 13,

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However, the parties have not briefed this issue, and the Court need not resolve the question of

which of these rules should apply here because Plaintiff has not satisfied either the good cause

requirement of Rule 16(b)(4) or the excusable neglect requirement of Rule 6(b)(1)(B).

Plaintiff has not shown good cause under Rule 16(b)(4) to extend the deadline for

producing her expert for deposition. Under Rule 16(b), “[t]he primary measure of good cause is

the movant’s diligence in attempting to meet the order’s requirements.” Sherman v. Winco

Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008) (internal quotation marks omitted). See also

Petrone v. Werner Enterprises, Inc., 940 F.3d 425, 434 (8th Cir. 2019) (“To establish good cause

[under Rule 16(b)], a party must show its diligence in attempting to meet the progression order.”)

(quoting Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006)). “While the

prejudice to the nonmovant resulting from modification of the scheduling order may also be a

relevant factor, generally, [the court] will not consider prejudice if the movant has not been diligent

in meeting the scheduling order’s deadlines.” Sherman, 532 F.3d at 717. “The ‘good cause’

standard is an exacting one, for it demands a demonstration that the existing schedule ‘cannot

2016) (“Rule 16 does not govern where, as here, a party moves to extend deadlines after the

deadline has passed. Rather, Rule 6(b) applies.”).

3 The Court has not found any Eighth Circuit cases directly addressing whether a movant seeking

to extend a scheduling order deadline after its expiration must satisfy Rule 6(b)(1)’s excusable

neglect standard. However, the Eighth Circuit cases the Court has found that address such motions

have applied Rule 16(b)’s good cause standard without mentioning Rule 6(b)(1)(B). See Petrone

v. Werner Enters., Inc., 940 F.3d 425, 434 (8th Cir. 2019) (holding district court erred by extending

the deadline to disclose expert reports after that deadline had expired without applying “the

mandatory good-cause standard under Rule 16(b)(4)”); Sherman v. Winco Fireworks, Inc., 532

F.3d 709, 716 (8th Cir. 2008) (holding district court erred by applying the liberal amendment

standard of Rule 15(a) without conducting an analysis of Rule 16(b)’s good cause standard, noting

that “[t]o permit district courts to consider motions to amend pleadings under Rule 15(a) without

regard to Rule 16(b) would render scheduling orders meaningless and effectively . . . read Rule

16(b) and its good cause requirement out of the Federal Rules of Civil Procedure”) (internal

quotation marks omitted).

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Jewish-Hosp., No. 4:19-CV-75-JAR, 2023 WL 156859, at *4 (E.D. Mo. Jan. 11, 2023) (quoting

Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., 187 F.R.D. 578, 581–82 (D. Minn.

1999)). “[C]arelessness is not compatible with a finding of diligence and offers no reason for a

grant of relief.” Engleson v. Little Falls Area Chamber of Com., 210 F.R.D. 667, 668-69 (D. Minn.

2002) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).

The record does not show that Plaintiff has been diligent in attempting to meet the Court’s

deadline for producing Dr. Pascale-Salem for deposition. To the contrary, the record shows that

Plaintiff has made only very minimal attempts to schedule this deposition. Plaintiff’s original

deadline to produce experts for depositions was April 15. Plaintiff’s first attempt to contact Dr.

Pascale-Salem about her deposition was an email sent on April 15—the day the then-effective

deadline expired (and three days after the parties filed motion seeking an extension). Although the

Court extended the deadline to May 30, and despite Dr. Pascale-Salem’s apparent lack of response

to the April 15 email, the record does not show that Plaintiff made any attempt to contact Dr.

Pascale-Salem by the May 30 deadline. Only on June 12, the day the Court again extended the

deadline (this time to July 17), did Plaintiff send a second email to Dr. Pascale-Salem requesting

deposition dates. When Dr. Pascale-Salem did not respond, it does not appear that Plaintiff took

further action until July 9,4 when she emailed a subpoena duces tecum that commanded Dr.

Pascale-Salem to appear for a deposition on July 15. After learning that a timely deposition would

be impossible because Dr. Pascale-Salem was out of the country, and after hearing from defense

counsel that they would be amenable to conducting a deposition after the deadline if Plaintiff

requested an extension of the deadline, Plaintiff then took no action whatsoever for two full

4 The Court acknowledges that there may have been some telephone calls between Plaintiff’s

counsel and Dr. Pascale-Salem’s office, as referenced in the July 9 email. However, Plaintiff does

not provide the Court with information regarding when such phone calls were made or what was

said during those phone calls.

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on September 17, when the Court held its routine case status conference and counsel raised the

issue. Had the conference not previously been scheduled by the Court, it is unclear when, if at all,

Plaintiff would have raised the issue. This series of events is entirely inconsistent with a finding

of diligence on Plaintiff’s part.

Plaintiff states that her failure to meet the Court’s deadline was caused by Dr. Pascale-

Salem’s absence from the country during much of the month of July, Plaintiff’s counsel’s office’s

unexpected staffing issues (including the departure of an attorney and of the paralegal who was

coordinating the deposition), and Plaintiff’s counsel’s inadvertence. These assertions do not help

Plaintiff establish the requisite diligence. Plaintiff learned of Dr. Pascale-Salem’s absence from

the country only a few days before the expiration of the July 17 deadline; that absence provides no

explanation for Plaintiff’s minimal attempts to schedule the deposition in the months prior to July

9 or for Plaintiff’s complete lack of action after July 15. As to the asserted staffing issues, the

departure of one paralegal and one unnamed attorney, at some unspecified time, cannot justify

what appears to be a consistent pattern of lack of action by Plaintiff’s counsel of record over a

period of several months. Plaintiff’s counsel’s inadvertence also does not constitute good cause.

See Engleson, 210 F.R.D. at 668-69 (“[C]arelessness is not compatible with a finding of diligence

and offers no reason for a grant of relief.”).

For all of the above reasons, the Court finds that Plaintiff has not demonstrated the

diligence that would support a finding of good cause to modify the scheduling order under Rule

16(b)(4). See, e.g., Allen v. Brown Advisory, LLC, 41 F.4th 843, 853 (7th Cir. 2022) (“Generally

speaking, it is reasonable to conclude that a plaintiff is not diligent when he in silence watches a

deadline pass even though he has good reason to act or seek an extension of the deadline.”); Lopez

v. TIG Indem. Co., No. 22-CV-04066-WJE, 2023 WL 2190186, at *2 (W.D. Mo. Feb. 23, 2023)

(holding that where movants “could have requested an extension to a discovery deadline months

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finding of good cause under Rule 16(b)(4)”); Fair Isaac Corp. v. Experian Info. Sols., Inc., No.

CV 06-4112 (ADM/JSM), 2009 WL 10677528, at *14 (D. Minn. July 10, 2009) (finding no good

cause to extend the deadline for nondispositive motions to allow a late-filed motion to compel;

noting that the movant knew about the opposing party’s failure to produce documents before the

deadline but “failed to do anything about it until two weeks after the non-dispositive motion

deadline”; stating, “This lack of action by [the movant] may be careless, inadvertent or due to other

pressing matters, but it does not amount to the diligence required to establish good cause.”).

Plaintiff also has not shown excusable neglect under Rule 6(b)(1)(B). Under Rule

6(b)(1)(B), “Excusable neglect is an ‘elastic concept’ that empowers courts to accept, ‘where

appropriate, . . . late filings caused by inadvertence, mistake, or carelessness, as well as by

intervening circumstances beyond the party’s control.’” Chorosevic v. MetLife Choices, 600 F.3d

934, 946 (8th Cir. 2010) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 392, 388 (1993)). “The determination of whether neglect is excusable ‘is at bottom an

equitable one, taking account of all relevant circumstances surrounding the party’s omission.’” Id.

(quoting Pioneer, 507 U.S. at 395). The factors to be considered include “(1) the possibility of

prejudice to [the non-moving party]; (2) the length of [the moving party’s] delay and the possible

impact of that delay on judicial proceedings; (3) the reasons for [the moving party’s] delay,

including whether the delay was within [the moving party’s] reasonable control; and (4) whether

[the moving party] acted in good faith.” Id. (internal quotation marks omitted). The Eighth Circuit

has recognized that “[t]he four Pioneer factors do not carry equal weight; the excuse given for the

late filing must have the greatest import.” Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463

(8th Cir. 2000).

After weighing these four factors, the Court finds no excusable neglect. The most important

factor—the reason for the delay, including whether the delay was in the movant’s reasonable

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some staffing issues and although Dr. Pascale-Salem was unavailable for part of the relevant

period, the Court finds no satisfactory explanation for why Plaintiff—having already obtained

multiple extensions of time, having discovered the doctor was unavailable before the deadline but

available after the deadline, and having been informed by defense counsel that she needed to seek

an extension of the deadline—proceeded to do nothing whatsoever for two full months. The delay

was fully within Plaintiff’s control, and there was no good reason for it. A second factor—the

length of the delay and its impact on judicial proceedings—also weighs against a finding of

excusable neglect. The original deposition deadline was April 15, and the Court has already

extended that deadline on two occasions. Plaintiff now asks for a third extension, this time of two

and a half months (to October 31). Granting such an extension would significantly disrupt these

proceedings by making it impossible for the Court to keep the current February 17, 2025, trial

date.5 The other two factors weigh slightly in favor of a finding of excusable neglect: the Court

has no reason to believe Plaintiff has not acted in good faith, and Defendants do not explain how

they would be prejudiced by the extension. On balance, however, after weighing all of the factors,

the Court finds Plaintiff has not shown excusable neglect under Rule 6(b)(1)(B). See, e.g., Younie,

2016 WL 2864442, at *3 (finding no excusable neglect where the reason offered for the delay was

“garden-variety attorney inattention”; reasoning in part that there was an unexplained two-month

delay between the asserted discovery of the need for the extension and the filing of the motion

seeking the extension).

5 In Plaintiff’s Proposed Third Amended Case Management Order, Plaintiff proposes extending

the deadlines subsequent to her expert deposition deadline but proposes keeping the February 17,

2025, trial date. However, an examination of the dates in that proposed order makes it clear that

Plaintiff’s proposal is not realistic. In the proposed order, briefing on summary judgment would

not be completed until the Friday before the Monday trial date, leaving the Court no time to rule

on dispositive motions prior to trial.

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In sum, after considering the relevant factors and the parties’ submissions, the Court finds

that Plaintiff has not shown good cause under Rule 16(b)(4) or excusable neglect under Rule

6(b)(1)(B). As such, Plaintiff's request to amend the Case Management Order will be denied.

TI. CONCLUSION

For all of the above reasons,

IT IS HEREBY ORERED that Plaintiffs Motion and Supporting Memorandum to

Amend the Scheduling Order and Extend the Deadline for Expert Depositions (ECF No. 47) is

DENIED.

A,

Ys, 0012

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE

Dated this 11th day of October, 2024.

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