UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNY SHANNON,

Plaintiff,

vs Case No: 14-14153

Honorable Victoria A. Roberts

STATE FARM FIRE AND CASUALTY

COMPANY,

Defendants.

_______________________________/

ORDER:

(1) GRANTING DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S

EXPERTS (DOC. 14); AND

(2) DENYING PLAINTIFF’S AMENDED MOTION TO REOPEN LIMITED

DISCOVERY (DOC. 18).

These two motions are pending. They are fully briefed.

State Farms moves to strike plaintiff’s expert in this breach of contract case in

which State Farm defends by alleging a fire at Plaintiff’s property was intentionally set,

for the following reasons:

1. Expert disclosures - including reports - were due May 8, 2015;

2. Plaintiff failed to identify an expert witness in initial disclosures;

3. Plaintiff failed to timely respond to written discovery requests concerning

experts;

4. Plaintiff failed to sign a stipulation provided by defense counsel that would

have extended the time to provide expert discovery; 

5. Not until the eve of a status conference scheduled because of Plaintiff’s

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failure to engage in discovery as required, did Plaintiff disclose the names

of three proposed experts and discovery responses were otherwise

insufficient; and

6. On July 13, 2015, Plaintiff finally filed a report for only one expert.

Defendant’s Motion to Strike Plaintiff’s Experts followed.

Part and parcel of Defendant’s motion is Plaintiff’s motion to extend discovery,

filed on September 2, 2015. Plaintiff requests an extension of the discovery cut-off date

of August 31, 2015 to allow the defense to depose his experts. The defense notes in its

response to Plaintiff’s motion, that since this case was filed in 2014, Plaintiff has not

taken any depositions or propounded any written discovery. On the other hand, the

defense propounded two sets of written discovery, conducted four depositions and

issued 15 subpoenas.

Fed. R. Civ. P. 16 (b)(4) allows for the reopening of discovery upon a showing of

good cause. Generally speaking, this requires a showing of diligence in efforts to meet

the Court’s scheduling order requirements; courts may also consider prejudice to the

nonmoving party. Smith v. Holston Med. Group, P.C., 595 F. App’x 474, 478 (6th Cir. 

2014).

However, lack of diligence and carelessness are “hallmarks of failure to meet the

good cause standard.” West Virginia Housing Dev. Fund v Ocwen Technology

Xchange, Inc., 200 F.R.D. 564, 567 (S.D. W. Va. 2001).

The only reason given by Plaintiff for his failure to abide by dates to comply with

discovery deadlines, is that he “did not have the funds to retain the same.” Additionally,

Plaintiff, an attorney, says the “Defendant’s ongoing denial to issue payment on the

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claim and Plaintiff’s inability to rent out the property that is the subject of this litigation,

stunted Plaintiff’s income.” Plaintiff says he had no money to hire an expert.

Defendant points out that this “lack of funds” argument has been advanced by

the same lawyer who represents this Plaintiff, in another case pending in this Court with

similar facts but a different client. Durant v. State Farm, 14-13054. In Durant, Plaintiff

filed a motion - denied by the Court - to reopen discovery because of financial hardship.

Defendant also responds to Plaintiff’s motion by stating Plaintiff earns $60,000.00

per year as a salaried employee, owns 20 rental properties, and conducts a private

legal and real estate business.

The Court finds Plaintiff’s financial hardship argument to be specious; it does not

account for his lack of diligence in meeting the Court’s deadlines to provide expert

disclosures. Plaintiff’s lack of diligence is why the Court will grant Defendant’s motion

to strike his experts. 

As already stated, Plaintiff has engaged in no discovery. He provides no good

reason for failing to provide expert disclosures when due. He failed to supplement his

disclosures when finally made. He failed to fully answer interrogatories pertaining to

experts. He has - belatedly - filed only one expert report. Discovery closed on August

31, 2015.

For his failure to comply with Fed. R. Civ. P. 16 (b)(4), 26 (a)(2)(B) and (C) and

37 (c), Plaintiff’s Motion to Reopen Limited Discovery is DENIED.

Defendant’s Motion to Strike Plaintiff’s Expert is GRANTED.

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IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: September 28, 2015

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

September 28, 2015.

s/Linda Vertriest 

Deputy Clerk

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