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Nachurs Alpine Solutions, Corp v. Nutra-Flo Co.

United States District Court, N.D. Iowa, Western Division

September 8, 2017

NACHURS ALPINE SOLUTIONS, CORP., f/k/a Na-Churs Plant Food Company, a Delaware Corporation, Plaintiff,
v.
NUTRA-FLO COMPANY, an Iowa Corporation, and BRIAN K. BANKS, Defendants.

          ORDER

          C.J. Williams, Chief United States Magistrate Judge Northern District of Iowa

         TABLE OF CONTENTS

         I. INTRODUCTION ......................................................................... 1

         II. PROCEDURAL HISTORY .............................................................. 2

         III. BACKGROUND FACTS .................................................................. 5

         IV. DISCUSSION ................................................................................ 7

         A. Plaintiff's Motion to Strike ............................................................ 8

         B. Defendants' Motion to Strike ......................................................... 17

         V. CONCLUSION ............................................................................. 19

         I. INTRODUCTION

         This matter comes before the Court pursuant to cross motions to strike supplemental expert disclosures.

         Plaintiff moves to strike defendants' supplemental disclosure of expert testimony by Dr. David Mengel. (Doc. 129). Alternatively, plaintiff requests the Court permit it to re-depose Dr. Mengel at defendants' expense and to permit plaintiff to designate rebuttal experts. (Id.). Defendants resist plaintiff's motion, arguing that they could not have supplemented their expert's disclosure any sooner. (Doc. 138). Defendants state they will make Dr. Mengel available for a second deposition, but resist paying anything more than an attorney's travel expenses related to a second deposition of Dr. Mengel, and resist authorizing plaintiff to designate a rebuttal expert witness. (Id.).

         In turn, defendants move to strike plaintiff's supplemental disclosure regarding its damages expert, John Grega, arguing that it is untimely. (Doc. 135). Plaintiff resists, arguing that it altered its theory of recovery in light of discovering that defendants did not sell a competing product. (Doc. 141). Alternatively, plaintiff indicates it will offer up Mr. Grega to be re-deposed and would not object to defendant being permitted to conduct further discovery and designate a rebuttal expert. (Id.).

         For the reasons that follow, the Court denies plaintiff's motion to strike the supplemental disclosure of Dr. Mengel's expert testimony, but grants plaintiff's request for alternative relief by authorizing the re-deposing of Dr. Mengel at defendants' expense. The Court denies plaintiff's request to designate a rebuttal expert.

         The Court similarly denies defendants' motion to strike plaintiff's supplemental disclosure of Mr. Grega's expert testimony, but will permit defendants to re-depose Mr. Grega at plaintiff's expense, and will permit defendants to designate a rebuttal expert witness.

         II. PROCEDURAL HISTORY

         On March 10, 2015, plaintiff filed suit against defendants in this Court. (Doc. 2). After litigation regarding a preliminary injunction, defendants filed an answer on April 15, 2015. (Doc. 27). On July 21, 2015, the Court held a telephonic scheduling and planning conference with the parties. (Doc. 29). On the same day, the Court issued a Scheduling Order and Discovery Plan. (Doc. 30). The parties had prepared and submitted this plan to the Court. (Id.). It provided the following deadlines:

Motions to add parties and amend pleadings November 8, 2015
Plaintiff's expert witness disclosures January 8, 2016
Defendants' expert witness disclosures March 8, 2016
Plaintiff's rebuttal expert disclosures April 22, 2016
Completion of Discovery October 8, 2016
Dispositive Motions December 11, 2016
Trial Ready Date March 8, 2017

(Id.). These deadlines were set significantly beyond the normal deadlines provided for in this District's Instructions and Worksheet for Preparation of Scheduling Order and Discovery Plan. For example, the deadline for completing discovery is normally set eight months after submission of the proposed scheduling order; in this case, it was set for fifteen months later. The trial ready date is normally set thirteen months after submission of the proposed scheduling order; in this case, the trial ready date was set for twenty months later.

         On July 21, 2015, the Court scheduled trial for April 24, 2017, more than two years after defendants answered plaintiff's complaint. (Doc. 31).

         Plaintiff did not disclose experts by the January 8, 2016, deadline. On March 7, 2016, defendants filed an unresisted motion to extend their expert disclosure deadline. (Doc. 36). The following day, the Court granted defendants' motion, but sua sponte also extended plaintiff's rebuttal expert disclosure deadline. (Doc. 37). Neither party designated experts, however, by these extended deadlines.

         On April 22, 2016, plaintiff filed a motion to extend all deadlines and the trial date. (Doc. 38). Plaintiff alleged that a combination of attempting to settle the case, the illness of an attorney, and difficulty in conducting ESI discovery necessitated a continuance of all the deadlines and the trial. (Id.). Defendants resisted the motion. (Doc. 39). On May 16, 2016, the Court denied plaintiff's motion. (Doc. 41).

         On July 21, 2016, defendants filed a motion to strike plaintiff's experts, arguing that they were untimely disclosed. (Doc. 42). On August 25, 2016, the Court denied the motion, but granted the alternative relief of extending defendants' deadline for disclosing experts and the deadline for completion of discovery. ...


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