The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MEMPHIS DENTAL MANUFACTURING )
CO., INC., )
)
Plaintiff/ )
Counter-Defendant, )
)
v. ) No. 22-cv-02790-TLP-tmp
)
BASE PLATE WAX DIRECT, INC., )
TERRANCE MARMINO, and )
FRANK BOWMAN, )
)
Defendants/ )
Counter-Plaintiffs. )
ORDER DENYING PLAINTIFF’S MOTIONS FOR LEAVE TO AMEND PLAINTIFF’S
EXPERT DISCLOSURES (ECF NO. 71) AND TO STRIKE (ECF NO. 89), AND
DENYING DEFENDANTS’ MOTIONS FOR CONTEMPT AND SANCTIONS (ECF NO.
72) AND TO QUASH (ECF NO. 87)
Before the court by order of reference are plaintiff/ counter-
defendant Memphis Dental Manufacturing Company, Inc.’s (“Memphis
Dental”) Motion for Leave to Amend Plaintiff’s Expert Disclosures,
and defendants/counter-plaintiffs Base Plate Wax Direct, Inc.,
Terrance Marmino, and Frank Bowman’s (collectively “Base Plate”)
Motion for Contempt and Sanctions. (ECF Nos. 71, 72, 75, 76.) The
undersigned was subsequently referred Base Plate’s Motion to Quash
and for Follow Up on Motion for Sanctions, which Memphis Dental
moved to strike in its response in opposition. (ECF Nos. 87, 88,
89.) A motions hearing was held on November 14, 2024. (ECF No.
90.) At that hearing, the undersigned directed the parties to
notify the court of any change in settlement status by November
20, 2024. (Id.) Because the parties were unable to reach a
settlement, (ECF No. 91), the undersigned has considered the
pending motions and DENIES them for the reasons below.
I. Memphis Dental’s Motion for Leave to Amend Plaintiff’s Expert
Disclosures (ECF No. 71)
Memphis Dental’s first motion, filed on July 8, 2024, seeks
leave to amend its expert disclosures under Federal Rule of Civil
Procedure 16. (ECF No. 71 at PageID 362-63.) In accordance with
the court’s Second Amended Scheduling Order, Memphis Dental timely
produced its expert disclosures (but without reports) on June 3,
2024. (ECF No. 73 at PageID 383-84); (see also ECF No. 48.) Memphis
Dental then produced a “Supplemental Expert Disclosure” on June
25, 2024, twenty-two days after its deadline had passed and six
days before Base Plate’s expert disclosures were due. (ECF No. 71-
1; ECF No. 73 at PageID 384.) Memphis Dental acknowledges that it
seeks not to merely amend its prior disclosure, but to instead
“replace[] Plaintiffs’ [sic] Initial Experts with two new
Experts,” Stephen H. Spiegelberg and Joseph D. Reno. (ECF No. 71
at PageID 362); (see also ECF No. 71-1.) Base Plate responded in
opposition on July 10, 2024. (ECF No. 73.) Defendants argue that
Memphis Dental had sufficient time to select its experts by the
June 25 deadline, and that it would prejudice Base Plate to allow
Memphis Dental to designate wholly new experts after that deadline.
(Id. at PageID 384-85.)
Federal Rule of Civil Procedure 26(a)(2) mandates that a party
disclose “the identity of any witness it may use at trial to
present evidence under Federal of Evidence 702, 703, or 705.” Fed.
R. Civ. P. 26(a)(2)(A). Such disclosures must be made at the time
and in the sequence that the court orders. Fed. R. Civ. P.
26(a)(2)(D). Once the court has set a scheduling order, including
each party’s expert disclosure deadlines, a schedule “may be
modified only for good cause and with the judge’s consent.” Fed.
R. Civ. P. 16(b)(4). “In order to demonstrate good cause, the
plaintiff must show that the original deadline could not reasonably
have been met despite due diligence and that the opposing party
will not suffer prejudice by virtue of the amendment.” Taylor v.
Cardinal Health 414, LLC, No. 2:20-cv-02004-JPM-tmp, 2020 WL
12968838, at *2 (W.D. Tenn. Oct. 29, 2020) (quoting Ross v. Am.
Red Cross, 567 F. App’x 296, 306 (6th Cir. 2014)). “Prejudice to
the non-moving party is a relevant consideration, but the main
focus should remain on the moving party’s exercise of diligence.”
Bryant v. GlaxoSmithKline, LLC, No. 19-02673-SHM-tmp, 2021 WL
4786205, at *2 (W.D. Tenn. Oct. 31, 2021) (internal quotation marks
omitted) (quoting EEOC v. U-Haul Intern., Inc., 286 F.R.D. 322,
325 (W.D. Tenn. 2012)).
Here, Memphis Dental has not demonstrated good cause for an
extension of its expert disclosure deadline. In its proposed
amended disclosure, Memphis Dental writes that Dr. Spiegelberg and
Mr. Reno were expected to testify about two issues central to
plaintiff’s claims from the moment of filing: the formulation and
production of the parties’ dental wax products and plaintiff’s
loss of income, respectively. (See ECF No. 71-1 at PageID 366.) As
Base Plate notes, more than a year and six months elapsed between
the filing of plaintiff’s complaint and its June 3, 2024 expert
disclosure deadline. (See ECF No. 73 at PageID 384.) Even
accounting for discovery delays in this matter, Memphis Dental had
ample time to identify appropriate experts and prepare its expert
reports before the twice-extended deadline.
The court’s conclusion is further supported by Memphis
Dental’s failure to prepare, let alone produce, any written expert
report in compliance with Federal Rule of Civil Procedure 26. See
Fed. R. Civ. P. 26(a)(2)(B) (“Unless otherwise stipulated or
ordered by the court, [an expert] disclosure must be accompanied
by a written report[.]”) At the court’s November 14 hearing,
Memphis Dental argued that its experts have been unable to provide
written conclusions because they still have not received Base
Plate’s wax sample. (See ECF No. 63 at PageID 305-06) (ordering
Base Plate to produce “a two-pound sample of the wax product for
testing and analysis”). Defendants maintain, however, that their
sample was made available shortly after the court’s April 19 order.
(See id.) Base Plate argues that blame instead lies with Memphis
Dental for failing to tell Base Plate where to send the sample——
information plaintiff has still not provided seven months later.
The court again agrees with Base Plate. Memphis Dental has now
twice produced deficient expert disclosures under Rule 26, the
latter of which Memphis Dental asks the court to permit almost one
month after its deadline and nearly two months after Base Plate’s
sample was made available. Memphis Dental has not exercised
diligence in attempting to meet the court’s deadlines and its
motion is therefore DENIED.
II. Base Plate’s Motion for Contempt and Sanctions (ECF No. 72)
The court next considers Base Plate’s Motion for Contempt and
Sanctions, filed on July 10, 2024. (ECF No. 72.) Base Plate asks
the court to hold Memphis Dental in contempt for failing to comply
with the undersigned’s June 5, 2024 order. (ECF No. 72 at PageID
373-74; ECF No. 68.) In that order, the court granted Base Plate’s
May 17, 2024 motion to compel in full, directing Memphis Dental to
produce various discovery responses. (ECF No. 68.) Memphis Dental
produced 171 pages of responsive material on June 25, 2024, “many
of which were objected to, were incomplete, or Memphis Dental
claimed to be outside the scope of discovery,” according to
defendants. (ECF No. 72 at PageID 374.) Base Plate also contends
that Memphis Dental failed to comply with the court’s guidance by
marking 140 pages as “Attorney’s Eyes Only.” (Id. at PageID 373-
74); (see also ECF No. 68) (directing plaintiff to produce certain
responses but instructing that it may do so “according to the
attorneys-eyes-only provision in the First Amended Protective
Order.”) Because of these deficiencies, Base Plates asks the court
to find Memphis Dental in contempt, award attorneys fees, and
either dismiss Memphis Dental’s claims or enter an order striking
plaintiff’s objections and directing production of “full and
complete responses.” (ECF No. 72 at PageID 375.)
After expiration of the court’s ninety-day stay of this
action, (see ECF Nos. 81, 83, 84), Memphis Dental filed its
response on October 22, 2024, (ECF No. 85.) Memphis Dental writes
that it “is actively working to address [defendants’] concerns and
intend[ed] to provide supplemental responses within fourteen (14)
days.” (ECF No. 85 at PageID 406.) Nonetheless, Memphis Dental
argues that Base Plate’s requested sanctions and finding of
contempt are inappropriate. In support, Memphis Dental asserts it
did provide “substantial responses” to Base Plate’s requests, did
not “willfully disobey[] any court order,” and “is actively working
to remedy any deficiencies.” (Id. at PageID 407.)
“Federal courts have broad contempt power, which exists for
the preservation of order in judicial proceedings, and to the
enforcement of the judgments, orders, and writs of the courts.”
Reynolds & Reynolds Co., Inc. v. Alan Vines Auto. of Jackson, LLC,
No. 1:20-mc-0003-STA, 2021 WL 765775, at *2 (W.D. Tenn. Feb. 26,
2021) (quoting Brown v. City of Upper Arlington, 637 F.3d 668, 671
(6th Cir. 2011)). Further, “[t]he district court [has] broad
discretion to fashion an appropriate remedy for . . . contempt.”
Williamson v. Recovery Ltd. P’ship, 467 F. App’x 382, 396 (6th
Cir. 2012).
At this time, the court declines to impose sanctions or find
Memphis Dental in contempt of its order granting Base Plate’s
motion to compel. Although the court acknowledges the last-minute
nature of Memphis Dental’s production, the parties have
represented that Memphis Dental did provide its promised
supplemental production late in the evening of November 13, 2024.
Base Plate’s Motion for Contempt is therefore DENIED under these
circumstances. To the extent that Memphis Dental has additional
responsive documents or has produced deficient responses,
plaintiff is hereby ORDERED, by December 15, 2024, to complete its
production and/or file a certification that it has fully complied
with the court’s June 5, 2024 order. Memphis Dental is warned that
failure to comply may result in future sanctions.
III. Base Plate’s Motion to Quash and Memphis Dental’s Motion to
Strike (ECF Nos. 87 & 89)
Finally, Base Plate moves the court to quash Memphis Dental’s
October 28 subpoena to depose Bowers Road Investments, LLC (“Bowers
Road”), the owner of certain manufacturing equipment leased to
Base Plate. (ECF No. 87 at PageID 411-13.) Base Plate filed its
motion on November 11, 2024, characterizing the subpoena as “a
last minute effort by Memphis Dental to obtain discovery it could
not otherwise obtain.” (Id. at PageID 413.) Base Plate argues,
inter alia, that the court has already denied Memphis Dental’s
prior attempt to access Base Plate’s leased equipment; compelling
an uninterested party to appear would be “unduly burdensome” at
this stage of litigation; and, depending on the court’s
interpretation of its September 20, 2024 order extending the stay
of this action, the discovery period has now closed. (Id. at PageID
412-13.) Base Plate also asks the court for an order striking
Memphis Dental’s November 7 notice to depose defendants. (Id.)
Base Plate again alleges that the discovery deadline has now
passed, and in the alternative, permitting Memphis Dental to depose
defendants would be inequitable in light of Memphis Dental’s
insufficient and delayed discovery responses. (Id. at PageID 413-
14.)
Memphis Dental filed its response on November 13, 2024. (ECF
No. 89.) Regarding its subpoena for Bowers Road, Memphis Dental
argues that the requested documents and testimony are relevant to
its claims, proportional to the needs of the case, and thus within
the scope of discovery as defined by Federal Rule of Civil
Procedure 26(b)(1). (Id. at PageID 423.) Memphis Dental also argues
that its prior discovery request to inspect Base Plate’s
manufacturing equipment did not specifically name Bowers Road, and
thus the court’s April 19 order denying that request does not
preclude the instant subpoena. (Id. at PageID 424.) As to its
notices to depose defendants, Memphis Dental rejects Base Plate’s
representation that there were no pending efforts to take party
depositions when the parties jointly moved to stay the action.
(Id. at PageID 425.) Instead, Memphis Dental asserts that it served
notices of subpoena and deposition to Pamela Williams, Cathy Ortiz,
and each named defendant on July 19, 2024. (Id.); (see also ECF
Nos. 89-2, 89-3, 89-4, 89-5, 89-6.) At the court’s November 14
hearing, counsel for Base Plate admitted to this error,
acknowledging that Memphis Dental did serve its deposition notices
before the parties’ July 31, 2024 discovery deadline. Finally,
Memphis Dental also moves to strike Base Plate’s request for an
order blocking depositions of the defendants. (ECF No. 89 at PageID
424-25.) According to Memphis Dental, Base Plate’s argument——which
Base Plate admittedly styles as a “Follow Up On Motion for
Sanctions” (ECF No. 87)——represents an attempt to “circumvent the
local rules” by refashioning what is, in effect, a reply in support
of its motion for sanctions, (ECF No. 89 at PageID 424-25.)
As an initial matter, the court declines to adopt Memphis
Dental’s interpretation of Base Plate’s November 11 motion as a
reply in support of its July 10 motion for sanctions. Although
Base Plate alleges similar grounds in both motions, its latter
“follow up” request asks the court for distinct relief. (Compare
ECF No. 72 at PageID 376 (requesting dismissal of all claims, or
alternatively, an order compelling the immediate production of
plaintiff’s written discovery responses) with ECF No. 87 at PageID
414 (requesting “an order protecting Defendants from the
requirement to attend [plaintiff’s noticed] deposititons”).)
Memphis Dental’s motion to strike is therefore DENIED.
Turning to the merits of Base Plate’s motions, Federal Rule
of Civil Procedure 45 instructs that the court, on timely motion,
“must quash or modify a subpoena that . . . subjects a person to
undue burden.” Fed. R. Civ. P. 45(d)(3). “Courts must ‘balance the
need for discovery against the burden imposed on the person ordered
to produce documents,’ and the status of that person as a non-
party is a factor.” In re: Modern Plastics Corp., 890 F.3d 244,
251 (6th Cir. 2018) (quoting Am. Elec. Power Co., Inc. v. United
States, 191 F.R.D. 132, 136 (S.D. Ohio 1999)). In addition, Federal
Rule of Civil Procedure 26(b)(1) generally provides that parties
may obtain discovery regarding any nonprivileged matter, so long
as that discovery is “relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
But the court “must limit the frequency or extent of discovery
otherwise allowed” if:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in
the action; or
(iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
The court finds that, on balance, permitting Memphis Dental
to proceed with the challenged depositions would not prove unduly
burdensome, irrelevant, or disproportional to the needs of the
case. As to Bowers Road, the court agrees with Memphis Dental’s
position that the undersigned’s April 19 order denying plaintiff’s
request for production is not dispositive. There, the undersigned
denied Memphis Dental’s request for an on-site inspection of Base
Plate’s manufacturing equipment, finding that entry onto Base
Plate’s premises would likely impose a higher burden than mere
production of documents. (See ECF No. 63 at PageID 306) (citing
McCollum v. City of Chattanooga, No. 1:04-cv-336 Mattice/Lee, No.
1:05-cv-245 Mattice/Lee, 2007 WL 9734370, at *3 (E.D. Tenn. June
15, 2007)). Memphis Dental’s instant subpoena instead seeks to
depose Bowers Road at the law office of plaintiff’s counsel. (ECF
No. 87-1.) Because defendant Frank Bowman is a co-owner and
registered agent of Bowers Road, (ECF No. 87 at PageID 412; ECF
No. 87-1 at PageID 418), the court is further convinced that
Memphis Dental’s subpoena would not present an undue burden despite
Bowers Road’s status as a non-party.
The undersigned also declines to quash Memphis Dental’s
subpoena on timeliness grounds, as the court’s September 20 order
did not explicitly address the discovery deadlines in this case.
(See ECF No. 84.) On the other hand, the court finds that Memphis
Dental’s July 19 notices to depose defendants were squarely within
the court’s second-amended deposition deadline. (See ECF No. 48)
(setting the parties’ deadline for written discovery and
depositions as July 31, 2024.) Base Plate’s motion to quash and
“follow up” motion to block Memphis Dental’s depositions of the
defendants are therefore DENIED. However, in fairness to the
parties, the court will also permit Base Plate an opportunity to
depose plaintiff’s witnesses beyond the now-closed discovery
period.
The parties are hereby ORDERED to notice and complete any
remaining depositions as permitted herein by January 15, 2025. No
further extensions will be granted. Neither this deadline, nor
Memphis Dental’s December 15 deadline for supplemental written
discovery, shall be construed to affect any other deadlines
outlined in the court’s Second Amended Scheduling Order.
IT IS SO ORDERED.
s/Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
November 27, 2024
Date