Michel v. Ford Motor Company, et al, No. 2:2018cv04738 - Document 205 (E.D. La. 2019)
Court Description: ORDER AND REASONS regarding 171 Motion to Quash; 194 Motion for Leave to File; and 202 Motion to Strike. For the foregoing reasons, Ford's motion to quash is GRANTED. Plaintiff's motion for leave to designate deposition testimony is GRANTED. Plaintiffs shall submit Mr. Fyie's deposition designations within 30 days. Ford's motion to strike plaintiffs' objections to its counterdesignations is GRANTED. Signed by Judge Sarah S. Vance on 2/20/2019. (cg)
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Michel v. Ford Motor Company, et al Doc. 205 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA VICTOR MICHEL CIVIL ACTION VERSUS NO. 18-4738 FORD MOTOR CO., ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court are: (1) Ford’s m otion to quash plaintiffs’ subpoena directing Matthew Fyie to appear and testify at trial; 1 (2) plaintiffs’ m otion for leave to designate deposition testimony of Matthew Fyie; 2 and (3) Ford’s m otion to strike plaintiffs’ untim ely objections to Ford’s counterdesignations of Victor Michel’s deposition testim ony. 3 The Court resolves the motions as follows. I. BACKGROU N D This case arises out of Victor Michel’s asbestos exposure during his work as a mechanic and generator service technician. 4 Michel contracted peritoneal m esotheliom a after a career that included perform ing work as a 1 2 3 4 R. Doc. 171. R. Doc. 194. R. Doc. 20 2. R. Doc. 1-2 at 10 -12 ¶¶ 6, 10 ; R. Doc. 134 at 15. Dockets.Justia.com m echanic on engines and brakes. 5 He filed this action in state court on J uly 28, 20 17 against Ford Motor Com pany and m any other asbestos suppliers, claim ing negligence and that defendants’ products were unreasonably dangerous. 6 Defendants removed the case to federal court on May 8, 20 18. 7 On J une 12, 20 18, Michel died. 8 The Court substituted his survivors as plaintiffs on J uly 10 , 20 18. 9 As of J anuary 25, 20 19, the only defendant rem aining in the case is Ford. In anticipation of trial, which was scheduled for February 19, 20 19, the parties issued subpoenas and designated deposition testim ony. On February 13, 20 19, the Court continued trial to allow plaintiffs to am end their com plaint. 10 Before trial was continued, Ford sought to have plaintiffs’ subpoena to Matthew Fyie quashed because Mr. Fyie is beyond the Court’s subpoena power, and because plaintiffs did not abide by the requirements of Federal Rule of Civil Procedure 45. 11 Plaintiffs opposed the m otion, 12 and they also sought to designate deposition testim ony of Mr. Fyie. 13 Ford 5 6 7 8 9 10 11 12 13 Id. R. Doc. 1-2 at 13-14 ¶ 14. R. Doc. 1. R. Doc. 21. Id. R. Doc. 20 1. R. Doc. 171. R. Doc. 178. R. Doc. 194. 2 opposed the m otion to designate Mr. Fyie’s deposition testim ony. 14 Ford also sought to strike plaintiffs’ objections to its counterdesignations to Mr. Michel’s deposition testim ony because they were not tim ely filed. 15 II. D ISCU SSION A. Mo tio n to Qu as h Su bp o e n a Is s u e d to Matth e w Fyie Ford argues that plaintiffs cannot subpoena Matthew Fyie to testify at trial because he is outside of the Court’s subpoena power. 16 A party m ay subpoena a witness to attend and testify at trial only within one hundred m iles of where the person resides, is em ployed, or regularly conducts business in person. Fed. R. Civ. P. 45(c)(1)(A). A court m ust quash or m odify a subpoena that does not adhere to these geographical limits. Fed. R. Civ. P. 45(d)(3)(A)(ii). Matthew Fyie resides in Michigan, 17 which is m ore than one hundred m iles from the location of trial. The Advisory Com m ittee Notes to the 20 13 am endments to Rule 45 provide, “Rule 45(c)(1)(A) does not authorize a subpoena for trial to require a party or party officer to travel m ore than 10 0 14 15 16 17 R. Doc. 199. R. Doc. 20 2. R. Doc. 171-1 at 1. Id. at 2. 3 m iles unless the party or party officer resides, is em ployed, or regularly transacts business in person in the state.” There is no evidence that Mr. Fyie resides, is em ployed, or regularly conducts business in person in Louisiana. Fyie is clearly beyond the reach of the Court’s subpoena power under Rule 45(c). See Fradella v. Coca-Cola Co., No. 17-9622, 20 18 WL 345570 7, at *2*3 (E.D. La. J ul. 18, 20 18) (quashing subpoena for the testim ony of corporate representative when the subpoenaed business was headquartered m ore than one hundred m iles from the place of trial); see also Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 222 (E.D. La. 20 0 8) (quashing subpoenas for witnesses who resided m ore than one hundred m iles from the place of trial). Plaintiff argues that because Mr. Fyie was listed as “c/ o J anika D. Polk, Kuchler Polk Weiner, LLC” on Ford’s witness list, he therefore m ay be served under Rule 45(c) because the offices of Kuchler Polk Weiner are in New Orleans. 18 But where a person’s attorney is located has no bearing on the Court’s subpoena power. Mr. Fyie does not reside at Kuchler Polk Weiner, nor does he work at, or regularly conduct business at the law firm ’s office. Indeed, plaintiffs deposed Mr. Fyie in Michigan only four m onths ago. 19 Plaintiffs’ argument has no m erit and displays a disturbing unfam iliarity 18 19 R. Doc. 178 at 3-4. R. Doc. 193 at 2. 4 with the Federal Rules of Civil Procedure. Accordingly, the Court grants Ford’s m otion to quash the trial subpoena. B. Mo tio n fo r Le ave to D e s ign ate D e p o s itio n Te s tim o n y o f Matth e w Fyie Plaintiffs seek to designate deposition testim ony of Matthew Fyie. 20 Ford opposes this m otion because plaintiffs did not file these designations before their deadline under the Court’s pretrial preparations and procedures. 21 Under Federal Rule of Civil Procedure 16(b)(4), a court m ay m odify the deadlines in its scheduling order “for good cause.” Fed. R. Civ. P. 16(b)(4). In deciding whether to amend the scheduling order to allow a late filing, the Court’s “judgm ent range is exceedingly wide,” for it “m ust consider not only the facts of the particular case but also all of the dem ands on counsel’s tim e and the court’s.” Streber v. Hunter, 221 F.3d 70 1, 736 (5th Cir. 20 0 0 ) (quoting HC Gun & Knife Show s, Inc. v. City of Houston, 20 1 F.3d 544, 54950 (5th Cir. 20 0 0 )). To determ ine whether good cause exists for the Court to m odify the scheduling order, the Court evaluates the following factors: “(1) the explanation for the failure to [designate the deposition testim ony]; (2) the im portance of the testim ony; (3) potential prejudice in allowing the 20 21 R. Doc. 194. R. Doc. 199. 5 testim ony; and (4) the availability of a continuance to cure such prejudice.” Geiserm an v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990 ). Here, plaintiffs did not designate deposition testim ony for Mr. Fyie because they erroneously assum ed that they could subpoena him to testify live. There is no evidence of bad faith or dilatory m otive. The testim ony is im portant to plaintiffs’ case because plaintiffs seek to use Mr. Fyie’s testim ony to establish that Ford products contained asbestos. 22 Finally, there is little prejudice to Ford, because the Court has continued trial. All factors therefore weigh in favor of m odifying the scheduling order to allow plaintiffs to subm it their designations. Accordingly, plaintiffs’ m otion is granted. Plaintiffs shall subm it their designations within 30 days of the entry of this order. C. Mo tio n to Strike Plain tiffs Late Obje ctio n s to Fo rd ’s Co u n te rd e s ign atio n s o f Victo r Mich e l’s D e p o s itio n Te s tim o n y Finally, Ford seeks to strike plaintiffs’ mem orandum objecting to Ford’s counterdesignations to Michel’s deposition testim ony because the m em orandum was not tim ely filed, and because plaintiffs failed to com ply 22 See R. Doc. 194-1 at 2. 6 with the Court order that the parties attem pt to resolve objections to testim ony before filing them. 23 The Court’s Pretrial Notice states that the parties m ust, “in good faith, attem pt to resolve all objections to testim ony so that the Court will be required to rule only on those objections to which they cannot reach an agreement as to their m erit.”24 It also provides that m em oranda on unresolved objections, unless otherwise stated, are due five business days before trial. 25 Plaintiffs subm itted seven pages of unnum bered objections to Ford’s counterdesignations to Victor Michel’s deposition testim ony on February 12, 20 19, four business days before trial. 26 Although plaintiffs labelled these objections as “unresolved,” plaintiffs did not, as the Court’s Pretrial Notice explicitly requires, attem pt to resolve these objections by m eeting with Ford before filing them with the Court. 27 Instead, plaintiffs failed to notify Ford of their intent to file objections to its counterdesignations, and they filed the objections directly into the record after the Court’s deadline. 23 R. Doc. 20 2. See R. Doc. 53-1 at 3; see also R. Doc. 53 at 5 (requiring the parties to m eet after the pretrial conference “to attem pt to resolve all rem aining objections and arrive at all possible stipulations”). 25 R. Doc. 53-1 at 3, 9-10 . 26 R. Doc. 196. 27 See R. Doc. 20 2-1 at 3. 7 24 As already stated, the Court can m odify its scheduling order only for “good cause” under Rule 16(b). Fed. R. Civ. P. 16(b)(4). The Court does not find that good cause exists to allow plaintiffs’ late objections under the Geiserm an factors. Under the first factor, plaintiffs provided no explanation for their late filing or failure to m eet and confer before they filed the objections. In addition, plaintiffs have continually disregarded the Court’s deadlines in this case, despite the Court’s repeated warnings and adm onitions. Moving to the second factor, the objections are of lim ited im portance because plaintiffs have already had the opportunity to designate the portions of Mr. Michel’s testim ony that they wish to present at trial. And finally, the third and fourth factors also weigh against allowing the objections. Ford is prejudiced by plaintiffs’ late subm ission, because plaintiffs had m ore tim e to object to Ford’s designated testim ony than Ford had to object to their testim ony. The Court’s continuance of the trial date will not cure this prejudice because the Court has frozen all evidence and m otions except on the new claim s being added in the amended com plaint. Neither Ford nor plaintiffs will be perm itted to file additional objections to these designations. The Court finds that plaintiffs have not shown good cause to m odify the Court’s Pretrial Notice. Accordingly, defendant’s m otion to strike plaintiffs’ objections is granted. 8 III. CON CLU SION For the foregoing reasons, Ford’s motion to quash is GRANTED. Plaintiff’s m otion for leave to designate deposition testim ony is GRANTED. Plaintiffs shall subm it Mr. Fyie’s deposition designations within 30 days. Ford’s m otion to strike plaintiffs’ objections to its counterdesignations is GRANTED. New Orleans, Louisiana, this _20th _ _ _ _ day of February, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 9
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