UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NASSER ALJALHAM,

Plaintiff,

Case No.: 08-14043

v. Hon. Gerald E. Rosen

AMERICAN STEAMSHIP COMPANY,

Defendant/Third Party Plaintiff,

v.

ALLOUEZ MARINE SUPPLY,

Third Party Defendant.

_________________________________/

ORDER GRANTING IN PART 

DEFENDANT ALLOUEZ MARINE SUPPLY’S

MOTION TO ADJOURN SCHEDULING ORDER DATES

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on November 17, 2009 

PRESENT: Honorable Gerald E. Rosen

Chief Judge, United States District Court

By motion filed on November 4, 2009, Third Party Defendant Allouez Marine

Supply (“Allouez”) seeks a 60-day extension of various dates and deadlines set forth in

the July 30, 2009 Amended Scheduling Order that governs this action. On November 5,

2009, Third Party Plaintiff American Steamship Company filed a concurrence to the

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motion to extend deadlines. Plaintiff has since notified the Court that it will not oppose

the motion. Having reviewed the motion and the record as a whole, the Court has

determined that oral argument is not necessary. Therefore, pursuant to Eastern District

Local Rule 7.1(e)(2), this matter will be decided on the briefs. This Memorandum

Opinion and Order sets forth the Court’s ruling.

DISCUSSION

 Plaintiff Nasser Aljalham filed this Jones Act case over a year ago on September

19, 2008, against his former employer, Defendant American Steamship Company

(“ASC”). ASC employed Plaintiff as a cook on a steamship. This action stems from an

alleged back injury Plaintiff suffered while loading groceries onto the vessel. Plaintiff

claims that ASC failed to make and keep the vessel safe for those working on it. 

In a Scheduling Order issued on November 3, 2008, the Court set a discovery cutoff date of March 31, 2009. On May 4, 2009, well after the close of discovery, ASC

moved for leave to file a third party complaint through which it would seek

indemnification, contribution, and other relief from Allouez Marine Supply. Specifically,

ASC argued that the injuries allegedly suffered by Plaintiff while lifting a heavy box of

groceries were due, in whole or in part, to the purported failure of third party Allouez to

mark the box in accordance with ASC’s policies. The Court denied ASC’s motion on

May 27, 2009 as untimely filed. On June 12, 2009, the Court denied ASC’s subsequent

Motion for Reconsideration, because ASC had merely presented the same issues ruled

upon by the court in its May 27, 2009 decision.

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On July 30, 2009, Plaintiff and ASC appeared before this Court for a final pre-trial

conference. It was immediately apparent to the Court that the parties were unprepared to

move forward to trial, and that they needed additional limited discovery with respect to

Plaintiff’s medical condition. The Court accordingly agreed to re-open discovery and

issued an Amended Scheduling Order affording 90 more days of discovery. The Court

further urged Plaintiff and ASC to agree on a medical examiner, and set a new discovery

cut-off of October 31, 2009. At the conference, ASC renewed its request to file a third

party complaint against Allouez. The Court granted this request in light of the re-opened

discovery period. ASC subsequently filed a third party complaint on August 18, 2009,

and Allouez filed an answer on September 9, 2009. Through the present motion and

concurrence, Defendants now seek a 60-day extension of the deadlines set in the

Amended Scheduling Order. 

 The present motion is flawed in a number of respects. First, it is untimely filed. 

The original Scheduling Order indicated that, pursuant to Rule 16(b) of the Federal Rules

of Civil Procedure, requests for modifications of dates set by the Scheduling Order should

be submitted by written motion to the Court at least 21 days prior to the date for which

modification is sought. This rule is equally applicable to the Amended Scheduling Order. 

Despite this clear language, the present motion seeking extension of deadlines was filed

several days after the discovery cut-off. Next, Allouez appears to confuse dates and

chronology of the case—for example, it makes repeated reference to a “settlement

conference” held before this Court in August 2009, though no such conference, beyond

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the July 30, 2009 final pre-trial/status conference, was ever held. Allouez further

suggests that the Court intended to create a different discovery time-line for Allouez as a

third party defendant. Allouez claims that at the final pre-trial conference/status

conference in July 2009, “the Court indicated that it would allow Defendant Allouez 90

days in order to conduct discovery.” (Br. in Support of Mot. to Adjourn Scheduling

Order Dates 3). While it is true that the Court intended to provide a re-opened period of

discovery, nothing in the Court's order indicates an intent to re-open discovery for 90

days from the time that Allouez was joined in the case. The Court only re-opened

discovery for 90 days from the time of the final pre-trial conference. The Court infers

that Allouez was aware of the July 30, 2009 Amended Scheduling Order as of September

1, 2009 at the latest, when counsel for Allouez filed a notice of appearance in this case. If

Allouez needed a separate discovery track or longer time to conduct depositions, it should

have filed a motion so requesting before the discovery cut-off already set in this case had

passed.

In spite of the foregoing defects, the Court has reviewed and considered Allouez’s

November 4, 2009 Motion to Adjourn Scheduling Order Dates on the merits. Allouez

argues that it needs more time to conduct discovery because it twice noticed the

deposition of Plaintiff, but Plaintiff failed to appear both times. Allouez ultimately was

able to depose Plaintiff on October 29, 2009, only two days before the discovery cut-off. 

Both Allouez and ASC now argue that they need additional time to follow up on items

referenced in Plaintiff's deposition. In addition, because Allouez was not joined until one

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month into the re-opened discovery period, it has not been able to initiate discovery with

respect to possible indemnification agreements with ASC. Finally, discovery regarding

Plaintiff’s medical condition remains incomplete, though the parties appear to have

attempted, in good faith to move forward. Plaintiff has yet to submit to an independent

medical examination and Defendants allege that Plaintiff has resisted handing over

medical reports from his own doctors. While the Court notes that a motion to compel

discovery would have been the appropriate device through which to address Plaintiff’s

apparent delinquence while the discovery period was still open, it nevertheless finds good

cause for the relief requested, albeit with a more moderate extension.

CONCLUSION

For all of the foregoing reasons, 

IT IS HEREBY ORDERED that Defendant Allouez Marine Supply’s Motion to

Adjourn Scheduling Order Dates [Dkt. # 30] is GRANTED IN PART. Accordingly, the

revised schedule is as follows:

Discovery shall be completed by December 14, 2009.

Dispositive motions due by January 13, 2009.

Joint Final Pretrial Order shall be submitted to the Court by April 15, 2010.

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Final Pretrial Conference set April 22, 2010 at 2:30 p.m.

Trailing Trial docket beginning May 3, 2010.

SO ORDERED.

s/Gerald E. Rosen 

Gerald E. Rosen

Chief Judge, United States District Court

Dated: November 17, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record on

November 17, 2009, by electronic and/or ordinary mail.

s/Ruth A. Brissaud 

Case Manager

(313) 234-5137

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