The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KETSANA VILAYLACK, )
)
Plaintiff, )
)
v. ) Case No. 4:24-cv-00616-SRC
)
BRENO L. COELHO and OLIVELLO )
TRANSPORTATION LLC, )
)
Defendants. )
Memorandum and Order
Ketsana Vilaylack moves to amend the case-management order. To justify an extension
of already-passed deadlines, a party must satisfy clear standards: good cause, exceptional
circumstances, and excusable neglect. Vilaylack, largely pointing only to her prior failures to
meet deadlines, doesn’t satisfy those standards here, so the Court denies her motion. Olivello
Transportation, LLC, also moves to amend the case-management order, but Olivello’s request
hinges on a hypothetical change to the case-management order that the Court rejects here. That
renders Olivello’s motion moot.
I. Background
Olivello filed a Motion for Summary Judgment two-and-a-half months ago. Doc. 35.
The crux of the motion is that Vilaylack failed to disclose any expert witnesses by the November
18, 2024 deadline for expert-witness disclosure and that, without expert testimony, Vilaylack
cannot prove damages. See id. at ¶¶ 3–10; see also doc. 28 at 11 (setting a November 18, 2024
deadline for expert-witness disclosure).
1 The Court cites to page numbers as assigned by CM/ECF.
Vilaylack opposed Olivello’s motion. Doc. 40. In her brief, Vilaylack stated that she:
seeks an extension to comply with the Rule 26 expert witness disclosure
accompanied by a delay in trial to ensure that if the Court grants [Vilaylack’s]
proposed extension, both parties would have at least 90 days to review expert
witnesses before trial, placing litigants in the exact position they would be in had
there been no failure to comply with the Rule 26 disclosure requirement.
Id. at 6. But Vilaylack failed to even mention the standards that govern a post-deadline request
to amend the case-management order: “good cause,” Fed. R. Civ. P. 16(b)(4); “exceptional
circumstances,” doc. 28 at 1; or “excusable neglect,” Fed. R. Civ. P. 6(b)(1)(B). See generally
doc. 40. Thus, in no sense does Vilaylack’s request—buried halfway into her
motion-for-summary-judgment response brief—count as a motion to amend the
case-management order. See Fed. R. Civ. P. 7(b)(1)(B) (requiring a party seeking a court order
to make a motion that, among other things, “state[s] with particularity the grounds for seeking
the order”).
In the same brief, Vilaylack also blamed a “[s]ingle [a]ttorney,” Zachary Brand, for the
failure to follow the expert-disclosure deadline. Doc. 40 at 6–8 (emphasis removed); see also
doc. 42-1 at 1 (identifying Brand as the “attorney that previously represented” Vilaylack).
Vilaylack argued that it would be unjust for the Court to grant Olivello summary judgment based
solely on Brand’s “[e]rror.” Doc. 40 at 6 (emphasis removed).
Two days after Vilaylack opposed the summary-judgment motion, she moved to dismiss
the case without prejudice. Doc. 42. In that motion, Vilaylack continued to throw Brand under
the bus, this time for Brand’s failure to timely serve Breno Coelho, who was previously a
defendant in this case before the Court dismissed him without prejudice for lack of timely
service. See doc. 42-1. Vilaylack offered one reason in support of her motion to dismiss the
case without prejudice—that Vilaylack wished to refile the case so that she could sue both
Coelho and Olivello in the same case. See id. at 2 (arguing that Vilaylack sought “to dismiss this
action without prejudice for a valid, non-prejudicial purpose” (emphasis added)). Vilaylack
explicitly rejected the premise that, by moving to dismiss without prejudice, she was “seeking to
escape an adverse ruling” on Olivello’s Motion for Summary Judgment. Id. at 4. And nowhere
did Vilaylack let on that she wished to amend her complaint to allege a shoulder injury. See
generally doc. 42-1. In fact, Vilaylack rejected that premise in her reply brief. See doc. 47 at 4
(“Undersigned counsel for [Vilaylack] has never given [Olivello] any indication—formally or
informally—of an intent to include a claim for a shoulder injury in any subsequent lawsuit.”).
The Court denied Vilaylack’s motion, primarily because Vilaylack had failed to articulate a
proper purpose for dismissal. Doc. 50.
Two weeks after the Court denied her Motion to Dismiss Without Prejudice, Vilaylack
filed a Motion to Amend Case Management Order. Doc. 53. Vilaylack seeks to amend the
motion-for-joinder-of-parties deadline, the amended-pleadings deadline, and the
expert-disclosure deadline. Id. at ¶ 2. Vilaylack’s states her purpose as this:
Under a new Case Management Order, [Vilaylack] will amend her Complaint to
align the pleadings with the evidence and her Interrogatory Answers, specifically
alleging that her shoulder was injured in the collision, and seek to re-add Mr.
Coelho to this case. [Vilaylack] will also serve additional expert disclosures,
identifying Dr. Gregory Cook and Dr. Brett Miller as physicians who will testify
with respect to her injury and causation.
Id. at ¶ 3.
Vilaylack then gives several reasons to attempt to justify an amendment to the
case-management order. See doc. 53. The Court discusses them in the section III.A.
II. Standard
Under Federal Rule of Civil Procedure 16(b)(4), “[a] schedule may be modified only for
good cause and with the judge’s consent.” And, in the case-management order, the Court noted
that it will give its consent only “upon a showing of exceptional circumstances.” Doc. 28 at 1.
In addition, if a deadline has already passed, the Court “may, for good cause extend” the
deadline “if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
III. Discussion
The Court denied Vilaylack’s Motion to Dismiss Without Prejudice mostly because
Vilaylack didn’t need to dismiss the entire case to join Coelho as an additional defendant—she
could have moved to amend the case-management order to join him as a defendant in this case
instead. Doc. 50 at 4. Speculating about Vilaylack’s true motives, the Court noted that
Vilaylack likely “doubt[ed] that she could show the ‘exceptional circumstances’ and ‘excusable
neglect’ required to amend the case-management order.” Id. at 4–5. And if that were true,
Vilaylack had sought dismissal without prejudice “‘merely to escape an adverse decision’ on a
potential motion to amend the case-management order.” Id. at 5 (quoting Hamm v.
Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 950 (8th Cir. 1999)). To the extent that
Vilaylack did harbor such doubts, her Motion to Amend Case Management Order, doc. 53,
shows that she had good reason to harbor them. The Court turns to her motion now and
addresses Olivello’s after that.
A. Vilaylack’s motion
Vilaylack puts forward several reasons in her attempt to justify an amendment to the
case-management order. See id. The Court assesses them one-by-one.
First, Vilaylack notes that “[t]he procedural posture of this case is already tangled” and
that “it is likely about to become even more complicated” because “[m]otion practice by the
parties has created uncertainty as to the status of various claims and potential rights.” Id. at ¶ 4.
The Court recognizes that the procedural posture of this case appears tangled. But Vilaylack, not
any external factor, is to blame for this perceived entanglement.
There is nothing inherently complex about an automobile-accident case like this one.
The only reason that “uncertainty as to the status of various claims and potential rights” exists in
this case is that Olivello filed a motion for summary judgment (a routine motion) and Vilaylack
has, since the filing of that motion, tried various ways to get herself out of her own self-inflicted
pickle of not having abided by the several-months-passed deadlines in the case-management
order. First, she tried to do so by an oblique request for an extension of the expert-disclosure
deadline in her summary-judgment response brief. See doc. 40 at 6. Then, she moved to dismiss
the case without prejudice. See doc. 42. And now, finally refraining from beating around the
bush, she moves to amend the case-management order. See doc. 53. To be sure, all these actions
have, in some sense, “tangled” the procedural posture of this case. Id. at ¶ 4. But they don’t
warrant a change to the case-management order, because these self-inflicted entanglements don’t
amount to good cause, exceptional circumstances, or excusable neglect.
Singing the same song in a different verse, Vilaylack next points to her own decision to
file a separate state-court action against Coelho as justification for amending the
case-management order. Doc. 53 at ¶ 5. Vilaylack contends that the parallel nature of these
cases will make “further litigation under the current deadlines uncertain at best and utterly
impractical at worst.” Id.
The Court acknowledges that the parallel cases may present challenges. But those
challenges are a far cry from the exceptional circumstances that would justify kicking the can
down the road of this case even further than Vilaylack has already kicked it. Parallel cases
present nothing out of the ordinary, and the Court rejects Vilaylack’s argument that the mere
existence of the state-court action justifies extending deadlines that passed months ago,
especially because Vilaylack herself made the decision to file the state-court case.
Ironically, Vilaylack cites Federal Rule of Civil Procedure 1 to support her request for an
extension. See id. at ¶ 5. Make no mistake: there is nothing “just,” “speedy,” or “inexpensive”
about granting, without justification, a request for an extension of deadlines that came and went
four months ago, especially when the requesting party, without explanation, waited months after
the passage of the deadlines before moving for the extension. Fed. R. Civ. P. 1.
Perhaps even more ironically, Vilaylack also turns to Ellingsworth v. Vermeer
Manufacturing Co., 949 F.3d 1097 (8th Cir. 2020), for support. Doc. 53 at ¶ 7. In Ellingsworth,
the Eight Circuit affirmed a district court’s decision to deny a plaintiff’s motion to push back the
deadline for motions for leave to amend the complaint. Ellingsworth, 949 F.3d at 1100. The
Eighth Circuit noted that “[t]he primary measure of good cause” under Federal Rule of Civil
Procedure 16(b) “is the movant’s diligence in attempting to meet deadlines.” Id. (quoting
Albright v. Mountain Home Sch. Dist., 926 F.3d 942, 951 (8th Cir. 2019)). And the court
explained that the plaintiff’s attempt to amend the complaint “had more to do with a change in
litigation strategy than in the factual or legal basis of his case.” Id. “That,” the Eighth Circuit
held, was “not sufficient to establish good cause[,] and the district court was well within its
discretion to deny the motion.” Id.
Considering Vilaylack’s “diligence,” or lack thereof, “in attempting to meet deadlines,”
and the absence of changes “in the factual or legal basis of [her] case,” the Court finds that
Ellingsworth counsels against, not in favor of, an amendment to the case-management order. Id.
(quoting Albright, 926 F.3d at 951). Vilaylack can blame Brand all she wants for her failure to
meet deadlines. But even if the Court’s axiomatic observation that “Vilaylack must live with the
consequences of her former attorney’s strategic decisions,” doc. 50 at 5 (citing Wallace,
Saunders, Austin, Brown & Enochs, Chartered v. Rahm, 963 S.W.2d 419, 422 (Mo. Ct. App.
1998)), proved false, that wouldn’t move the needle. One of Vilaylack’s current attorneys,
Christopher J. Hinckley, entered his appearance in this case in November 2024. See docs. 32–
33. And Vilaylack’s attorney who filed the Motion to Amend Case Management Order, Emery
Reusch, see doc. 53 at 6, entered his appearance over three months ago, too, see doc. 34. The
Court need not decide whether Brand’s failures would have constituted good cause or
exceptional circumstances to extend the case-management-order deadlines back then, because
they certainly don’t now, months after Brand has withdrawn from the case. See docs. 38–39.
Hinckley and Reusch, with reasonable diligence, could have discovered the missed deadlines
long before the now-not-so-new year commenced almost three months ago, yet they sat on their
hands.
Finally, in a jab at the Court’s prior refusal to dismiss the case without prejudice,
Vilaylack points to Bergstrom v. Frascone, 744 F.3d 571 (8th Cir. 2014), to warn the Court not
to impose “sanctions on a party due to conduct attributable solely to a party’s attorney.” Doc. 53
at ¶¶ 10–11. To the extent that Bergstrom applies to this case, the Court heeds the warning. But
Bergstrom doesn’t apply here. In Bergstrom, the district court dismissed the plaintiff’s
complaint with prejudice for failure to prosecute and failure to abide by court orders related to
discovery. 744 F.3d at 573. The Eighth Circuit, in “a close case,” reversed that dismissal
because the district court had failed to consider “the viability of lesser sanctions as to the
circumstances” that “existed at the time it entered the dismissal.” Id. at 575.
But here, the Court hasn’t imposed any sanctions on Vilaylack. Much less has it resorted
to the extreme sanction of dismissing her case with prejudice. To the extent that Vilaylack
argues that the Court’s refusal to extend deadlines effectively dooms her case against Olivello
because her case cannot survive Olivello’s Motion for Summary Judgment without an extension
of the expert-witness disclosure deadline, her own prior representations to the Court suggest that
she believes otherwise. See, e.g., doc. 42-1 at 4 (“[Vilaylack] is not seeking to escape an adverse
ruling on [Olivello’s] Motion [for Summary Judgment]. On the contrary, [Vilaylack] responded
to [Olivello’s] Motion on its merits and set forth a conclusive argument for why [Olivello’s]
Motion should be denied.”).
At bottom, Vilaylack’s only justification for extending the case’s deadlines is her own
failure to abide by the deadlines previously set. In no sense does that constitute good cause,
excusable neglect, or exceptional circumstances. Thus, the Court denies Vilaylack’s motion,
doc. 53.
B. Olivello’s motion
The Court’s ruling on Vilaylack’s motion renders Olivello’s motion moot. Olivello
argues that, if the Court were to grant Vilaylack’s request for new deadlines, Olivello would
need more time to take additional discovery. See generally doc. 52. But since the Court here
rejects Vilaylack’s attempt to move deadlines, no exceptional circumstances exist that would
justify moving Olivello’s deadlines, either. Accordingly, the Court denies Olivello’s motion,
doc. 52.
* * *
This Memorandum and Order should come as no surprise. The undersigned stresses, at
every Rule 16 conference, that, if the parties can remember only one thing from the conference,
they should remember that the Court will not move the discovery deadline, the
dispositive-motion deadline, or the trial date, absent a showing of truly exceptional
circumstances. The Court held such a Rule 16 conference in this case, and it gave both parties
that same warning. See doc. 27. The Court acknowledges that Vilaylack’s current attorneys did
not participate in the Rule 16 conference. See id. But, lest Vilaylack’s current attorneys attempt
to throw their former colleague under the bus any further, the Court directs them to the
undersigned’s Judge’s Requirements, which the Court ordered the parties to “review and comply
with,” doc. 9:
I manage my docket proactively so that parties can expect to go to trial during the
three-week trial docket set in the Case Management Order. I strictly enforce the
deadlines set forth in the CMO. As I explain at Rule 16 conferences, the generic
“press of other business,” discovery taking longer than expected, or parties’ delay
in initiating or pursuing discovery do not constitute exceptional circumstances.
Counsel should read the CMO carefully and refer to it throughout the case. Ifa
party needs to amend any part of the CMO that is not covered by Rule 29 of the
Federal Rules of Civil Procedure, that party must file a motion to amend before any
of the deadlines that party seeks to move pass. The motion must also specify
whether counsel for each other party consents to the amendment. I will grant the
motion only if the movant shows that exceptional circumstances justify the
amendment.
Judge’s Requirements at 5.
IV. Conclusion
Accordingly, the Court denies Vilaylack’s [53] Motion to Amend Case Management
Order and denies Olivello’s [52] Motion to Amend Case Management Order and/or to Set New
Case Management Conference as moot. All deadlines in the case remain in full effect.
So ordered this 25th day of March 2025.
STEPHEN R. CLARK
CHIEF UNITED STATES DISTRICT JUDGE