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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

VFS LEASING CO. ) 

 ) 

 Plaintiff, ) 

 ) CIVIL ACTION NO. 

vs. ) 3:06cv638-SRW 

 ) 

G.F. KELLY, INC. d/b/a KELLY ) 

TRUCKING; and GUY KELLY, ) 

 ) 

 Defendants ) 

PLAINTIFF’S MOTION FOR LEAVE OF COURT 

TO MODIFY RULE 16(B) SCHEDULING ORDER

 COMES NOW Plaintiff VFS Leasing Co. (“Plaintiff” or “VFS”) and moves this Court to 

modify its November 3, 2006 Order (the “Scheduling Order”) to allow Plaintiff to submit 

rebuttal evidentiary material with its Reply to Defendants’ Opposition to Plaintiff’s Motion for 

Summary Judgment (“Reply”). As grounds for this motion, Plaintiff states as follows: 

1. Federal Rule of Civil Procedure 16(b) permits a Scheduling Order to be modified upon a 

showing of good cause and upon leave of court. See also Lyons v. Serrano, 205 Fed. 

Appx. 719 , 722 (11th Cir. 2006). Plaintiff requests that this Court modify its Scheduling 

Order to allow Plaintiff to submit additional evidentiary material because good cause 

clearly exists in this case. 

2. Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment (“Opposition”) 

relies exclusively on the affirmative defense of Plaintiff’s alleged failure to mitigate 

damages. In conjunction with their Opposition, Defendants submitted the “expert” 

affidavits of Guy F. Kelly and Charles David Lance that purport to articulate, for the first 

time, Defendants’ basis for their affirmative defense, upon which they bear the burden of 

proof. 

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3. The rebuttal expert reports that Plaintiff submitted in support of its Reply only address 

the issue of its alleged failure to mitigate. Plaintiff simply could not respond to 

Defendants’ “evidence” in its initial Motion for Summary Judgment offered with respect 

to their affirmative defense. 

4. WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that this Court modify its 

Scheduling Order and allow Plaintiff to submit rebuttal evidentiary material with its 

Reply. 

 Respectfully submitted this 7th day of May, 2007. 

s/ David B. Hall 

DAVID B. HALL (HAL052) 

JULIE A. COTTINGHAM (COT017) 

Attorneys for Plaintiff VFS Leasing Co. 

OF COUNSEL: 

BAKER DONELSON, BEARMAN 

CALDWELL & BERKOWITZ 

A Professional Corporation 

420 North 20th Street 

Suite 1600 Wachovia Tower 

Birmingham, Alabama 35203-5202 

(205) 328-0480 

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CERTIFICATE OF SERVICE

I hereby certify that on this the 7th day of May, 2007, the foregoing has been 

electronically filed with the Clerk of Court using the CM/ECF system, which will send 

notification of such filing, to the following counsel of record: 

James H. Starnes 

Attorney for Defendants 

PO Box 590003 

Birmingham, AL 35259 

(205) 320-0800 

S. Sanford Holliday 

Attorney for Defendants 

PO Box 727 

Roanoke, AL 36274 

(334) 863-2717 

s/ David B. Hall 

 OF COUNSEL 

 

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