Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:04-cv-01321-SLR Document 104-2 Filed O2/13/2006 Page 1 of 4
EXHIBIT A

Case 1:04-cv-01321-SLR Document 104-2 Filed O2/13/2006 Page 2 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
4
Delaware limited partnership, )
Plaintifti l
‘ v. l Civil Action No. 04·132l—SLR
TOWN OF ELSMERE, a Delaware g
municipal corporation, )
ELLIS BLOMQUIST, EUGENE BONEKER, )
and JOHN GILES, ) Jury Trial Deinanded
Defendants. l
PLAINTIFI-RS SUR—REPLY IN OFPOSITION T0
DEFENDANTS’ MOTION TO EXTEND CERTAIN DEADLINES
Plaintiff Elsmere Park Club, LP. ("Plaintiff’ or "EPC”) submits this Sur—Rep1y in
Opposition to Defendants’ Motion to Extend Certain Deadlines] set forth in the Court’s Order
entered on November 16, 2005 (the "Schedulirig Order") (D.I. 9l).
1. Defendants admit in their Reply (DI. 101) that even today they still have not decided
whether or not they "need" expert testimony. (Di. 10i at {lil 7, E2). Defendants candid
concession, and their failure to identify any expert so far, means that they still have not selected
an expert witness, or even more fundamentally whether or not to use an expert. Defendants
should have made these decisions long ago, so that they could submit their expert report on or
before the extended deadline of January 31, 2006, which they failed to do. As a result,
Defendants should be barred from offering expert testimony.
2. Defendants honestly concede in their Reply that they made a calculated decision to wait
for the depositions of Plaintiff s experts before determining whether or not to retain an expert.
Defendants made this decision at their own risk. The Scheduling Order does not require or
‘ Defendants Motion to Extend Certain Deadlines was filed January 30, 2006. (D1. 99) Plaintiffs Opposition was
tiled February 2, 2006. (D.l. 100) Defendants’ Reply was tiled February 7, 2006. (lll. 101)
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Case 1 :04-cv-01321-SLR Document 104-2 Filed 02/ 1 3/2006 Page 3 of 4
provide that the deadline for Defe11da11ts’ expert reports can be deferred unilaterally by
Defendants if depositions 01”P1aintiff’s experts were not be taken before January 31, 2006.
Rather, the Court’s Scheduling Order provides a full month of time for expert depositions after
expert reports are exchanged?
3. Contrary to the assertions in their Reply, Befendants never asked Plaintiff for an
extension until January 30, 2006, the day before their expert reports were due.3
4. Plaintiff and Defendants worked cooperatively to schedule the depositions of Plaintiff s
experts as soon as possible. Defendants first asked to take the depositions ofPlai11tifi"s experts
on January 4, 2006. On that date, Defendants demanded that both experts be made available for
depositions on the same day and within nine (9) days from the date ofthe demand. (D.I. 10},
Exh. A and B), which could not be accomplished. The depositions occurred promptly, especially
given the limited deposition dates offered by Defendants and the number of schedules involved.
Defendants cannot seriously claim that their expert reports were delayed doe to Plaintiffs
inability to comply with Defendanuf unreasonable deposition scheduling demands. Nor can
Defendants properly claim that they needed additional time due to receipt of a few documents-
which information they had previously 1·eceived——after Plaintiff provided its updated expert
reports.4
5. Defendants offer no explanation whatsoever for shortening the time for Plaintiff to
depose any expert offered by Defendants from twenty~eight (28) to fourteen (14) days after
2 Responsive expert reports were due January 31, 2006, but expert discovery does not close until Febmary 28, 2006.
3 Ou January 5, 2006, Defendants unilaterally claimed that their deadline for submitting expert reports would be
extended if they were unable to take depositions of Plaintiffs experts on short notice. (1).1. 10}., Exh. A). Plaintiff
immediately told Defendants that Plaintiff would work cooperatively with Defendants to schedule the depositions
promptly, but that Defendants were required to meet the January 31, 2006 expenz report deadline regardless of when
the depositions occurred. (DJ. EOE, Exh. B). Defendants did not respond and remained silent about their expert
reports until January 30, 2006, the day before their reports were due.
4 Defendams’ assertion that Plaintiff produced additional documents on January 30, 2006 is a red herring. (D1. 101
at 1} 8). Those documents consist of twelve (12) pages that Plaintiff received from a third party, Harvard
Environmental, Inc., one business day before they were produced. Those pages or the information they contained
were previously produced during discovery.
2
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Case 1:04-cv-01321-SLR Document 104-2 Filed O2/13/2006 Page 4 of 4
Defendants? deadline for providing the expert’s reports.5 The only possible conclusion is that
Defendants acknowledge the importance of minimizing the deviation from the Scheduling Order,
but they offer to do so only at Plaintiff s expense.
For the reasons stated above, Plaintiff respectfully requests that the Court deny
Defendants Motion to Extend Certain Deadlines (D.l. 99) and preclude the Defendants from
offering expert testimony at the trial of this matter.
Dated: February 13, 2006 KLEHR, HARRISON, HARVEY,
BRANZBURG & ELLERS LLP
By= Z Q K
David S. Eagle, (Bar No. 3387)
Douglas P. Schleicher, pro hoc vice
Patrick A., Costello (Bar No. 4535)
919 Market Street, Seite 1000
Wilmington, DE l980l—3062
(302) 426-1 ES9 (Telephone)
(302) 426-9193 (Fax)
[email protected]
[email protected]
Attorneys for Plaintf
5 Defendants assert that Plaintiff has not alleged that it will suffer prejudice, but the prejudice to Plaintiff is patently
obvious when Defendants shorten the time period for Plaintiff to schedule depositions of l`)efendants’ experts,
especially when Defendants have failed to even identgjz an expert after the deadline for submitting expert reports.
l
oei.1 sativa;