Wolfeboro v. Wright-Pierce 12-cv-130-JD 1/23/14
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Town of Wolfeboro
v. Civil No. 12-cv-130-JD
Opinion No. 2014 DNH 013
Wright-Pierce
O R D E R
On November 19, 2013, the court granted Wright-Pierce's
motion to extend certain discovery deadlines in the scheduling
order but did not extend the deadline for supplementation of
expert witness reports, as Wright-Pierce had reguested. Wright
Pierce moves for reconsideration of that part of the court's
November 19 order that denied the reguest to extend the expert
deadline.1 Wolfeboro objects to the motion for reconsideration
I. Motions for Leave to File a Reply
Wright-Pierce moved for leave to file a reply to Wolfeboro
objection to the motion for reconsideration (document no. 65).
Wolfeboro objected to the motion for leave to file a reply.
Wright-Pierce then moved for leave to file a reply to Wolfeboro
objection to the motion for leave to file a reply (document no.
69). Wolfeboro has not yet responded to this motion.
1Wright-Pierce first filed a memorandum in support of
reconsideration, document no. 54, and then the next day filed a
motion for reconsideration, document no. 56.
In the proposed reply to Wolfeboro's objection to the motion
for reconsideration (document no. 65), Wright-Pierce charges that
Wolfeboro is acting in bad faith by opposing its reguest to
extend the deadline for disclosing expert witnesses and addresses
Wolfeboro's objections to the motion for reconsideration.
Wright-Pierce also asks the court to declare that a remedial plan
prepared by its consultant, Haley & Aldrich, which Wright-Pierce
submitted as an exhibit to its memorandum in support of
reconsideration, is neither privileged nor confidential.
Wolfeboro objects to the motion for leave to file a reply because
of its focus on the remedial plan and because it restates
arguments previously made in support of reconsideration.
Wright-Pierce did not submit the Haley & Aldrich plan with
its original motion but appended the plan to its motion for
reconsideration. Wolfeboro immediately moved to seal the plan,
because the parties had considered the plan to be a confidential
document that was prepared for settlement or mediation. Each
page of the plan is marked: "THIS MEMORANDUM IS CONFIDENTIAL AND
PREPARED FOR PURPOSES OF SETTLEMENT AND/OR MEDIATION ONLY." To
maintain the status guo until the controversy about the plan
could be resolved, the court granted the motion to seal pending
further order of the court.
The status of the Haley & Aldrich remedial plan is not
properly before the court for purposes of the motion for
reconsideration. Contrary to Wright-Pierce's interpretation, the
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November 19 order was not based in any part on the confidential
or privileged status of the plan. Therefore, that issue is not
relevant to the motion for reconsideration.
In addition, evidence submitted with a motion for
reconsideration, such as the Haley & Aldrich plan, does not
become part of the record in the case. See Alberti v. Carlo-
Izguierdo, -- F. App'x ---, 2013 WL 6645581, at *8 (1st Cir.
Dec. 18, 2013). Therefore, the Haley & Aldrich plan, which is
exhibit 3 to document number 54, is struck from the record and
shall be removed from the docket. Should the issue of the
confidential and privileged status of the plan becomes relevant
in this case at some point in the future, the matter may be
raised by motion filed by either party at the appropriate time.
Wright-Pierce's motion (document no. 65) to file a reply to
Wolfeboro's objection to the motion for reconsideration is
granted, and the reply has been considered in deciding the issue
of reconsideration, as is explained below. Wright-Pierce's
motion (document no. 69) for leave to file a reply to Wolfeboro's
objection to Wright-Pierce's motion for leave to file a reply to
the objection to the motion for reconsideration is denied.
II. Motion for Reconsideartion
In its motion for reconsideration, Wright-Pierce argues that
its motion to extend discovery deadlines was timely and that it
showed good cause to extend the deadlines. Specifically, Wright-
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Pierce contends that it was diligent in seeking other extensions
and asserts that the court authorized an extension of the expert
discovery deadlines in its August 20, 2013, order granting, in
part, Wolfeboro's motion to amend. Wofeboro objects that Wright-
Pierce has not shown grounds for reconsideration.
A. Standard of Review
A motion for reconsideration of an interlocutory order
"shall demonstrate that the order was based on a manifest error
of fact or law . . . ." LR 7.2(d). Reconsideration is "an
extraordinary remedy which should be used sparingly." Fabrica de
Muebles J.J. Alvarez, Inc. v. Inversiones Mendoza, Inc., 682 F.3d
6, 31 (1st Cir. 2012) (internal guotation marks omitted). "A
motion for reconsideration does not provide a vehicle for a party
to undo its own procedural failures, and it certainly does not
allow a party to introduce new evidence or advance arguments that
could and should have been presented [previously]."
Id.
(internal guotation marks omitted).
B. Timeliness
Citing Federal Rule of Civil Procedure 6(b) (1) (A), Wright-
Pierce asserts that its motion to extend the expert deadline
should have been granted because the motion was timely filed.
The motion was not rejected as being untimely but rather was
considered on the merits. Time was considered in the context of
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the standard for good cause under Federal Rule of Civil Procedure
16(b)(4). Therefore, Wright-Pierce's argument on timeliness is
inapposite to the issues presented.
C. Good Cause
As was explained in the November 19, 2013, order. Rule
16(b)(4) reguires the moving party to show good cause to modify a
scheduling order. In the motion to extend deadlines, Wright-
Pierce neither cited the standard nor provided a focused argument
to carry its burden under Rule 16(b) (4) . Despite those
deficiencies, the court considered the information Wright-Pierce
provided, under the applicable standard, and found good cause to
extend the discovery deadline, except as to experts, and the
trial date.
In support of its motion to extend, Wright-Pierce recited
the chronology of the scheduling orders in the case and asserted
that it had been trying to persuade Wolfeboro to mediate. "As a
show of good faith to Wolfeboro that it is confident the site can
be remediated and put to good use," Wright-Pierce asked Haley &
Aldrich to prepare a remedial plan for Wolfeboro's treatment
site. Doc. 48, 5 7. Wright-Pierce stated that the New Hampshire
Department of Environmental Services had concerns about potential
wetlands issues related to the remedial plan, and "Wright-Pierce
is now undertaking to investigate what, if any, wetlands issues
must be addressed and how, which may necessitate the retention of
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a wetlands expert." Id. Wright-Pierce then explained the need
for additional time to complete depositions and other discovery.
In conclusion, Wright-Pierce stated: "For the above reasons,
Wright-Pierce respectfully reguests that this Court grant an
extension of the deadline for the completion of discovery and
depositions as well as the defendant's supplementation of its
experts' reports to January 6, 2014, and of the trial date to
April 7, 2014 (both extensions are approximately 60 days, give or
take a few days to avoid holidays and school vacations." Doc.
48, 5 11. Wright-Pierce did not reguest that the time for
disclosing expert witnesses be reopened or ask to be allowed to
disclose a wetlands expert after the deadline, which was December
19, 2012.
The court noted that in addition to seeking an extension of
the deadline for supplementation of expert reports it appeared
Wright-Pierce was seeking a new deadline for disclosing expert
witnesses because of the reference to a possible need for a
wetlands expert. The court granted the extension of time Wright-
Pierce reguested for other discovery and for the trial but denied
extra time for Wright-Pierce to supplement expert reports and
disclose experts because Wright-Pierce failed to provide good
cause for that extension.
For purposes of reconsideration, Wright-Pierce argues that
it "demonstrated 'good cause' for an extension of the deadline
for the disclosure of expert reports" and asks, for the first
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time, "to extend the deadlines for expert disclosure." In
support of reconsideration, Wright-Pierce again asserts that it
was previously diligent in discovery and complied with other
deadlines. While that may be true, it does not establish good
cause for extending the deadline to supplement expert witnesses'
written reports or to disclose new expert witnesses. Wright-
Pierce has never explained why it waited until almost seven
months after the expert disclosure deadline and five months after
the supplementation deadline to develop the remedial plan.
Wright-Pierce did not show good cause for that extension as is
explained in the prior order.
Wright-Pierce also asserts a new ground for extending the
deadline for expert disclosure, contending that the extension was
authorized by the court's August 20, 2013, order, which allowed
Wolfeboro to amend the complaint. Wright-Pierce's reliance on
the August 20 order is misplaced. Wright-Pierce did not raise
the August 20 order in its motionto extend the discovery
deadlines. It cannot raise new arguments and theories for
reconsideration that could and should have been raised in the
original motion. See Marks 3 Zet-Ernst Marks GmBh & Co. KGv.
Presstek, Inc., 455 F.3d 7, 15-16 (1st Cir. 2006).
In addition, even if that were not the case, Wright-Pierce
has not shown good cause based on the August 20 order. In that
order, the court allowed Wolfeboro to amend the complaint to add
claims for gross negligence, violation of the New Hampshire
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Consumer Protection Act, and fraudulent misrepresentation. The
added claims pertain to Wright-Pierce's actions and
representations to Wolfeboro beginning in 2007 about Wright-
Pierce' s models of the disposal sites that eventually failed.
The court explicitly stated: "To the extent additional expert
discovery is necessary to address the new claims, the parties can
propose stipulated deadlines for expert disclosures and related
discovery as an amendment to the scheduling order." Doc. No. 40,
at 10 (emphasis added).
Wright-Pierce makes no connection between supplementing its
expert reports or disclosing new experts and the three claims
that were added in Wolfeboro's amended complaint.2 No such
connection is obvious as Wright-Pierce intends the plan to
address damages, not the substantive elements of any of
Wolfeboro's claims. Therefore, even if the court were to
consider Wright-Pierce's new theory based on the August 20 order,
Wright-Pierce has not shown good cause for the extension of
expert deadlines.
This case does not present the extenuating circumstances
recognized in Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72,
2A mere statement that the new report is an essential piece
of Wright-Pierce's damages defense "in light of the Town's
Amended Complaint" does not provide an argument that sufficiently
developed to permit consideration. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990); see also Higgins v. New Balance
Athletic Shoe, Inc.,
194 F.3d 252, 260 (1st Cir. 1999) ("The
district court is free to disregard arguments that are not
adeguately developed . . . .").
79 (1st Cir. 2009), where the sanction of precluding the
plaintiff's expert had the effect of dismissing the case. The
Haley & Aldrich plan, along with any expert who might be
disclosed to opine about the plan and its effects on wetlands
issues, would address Wright-Pierce's defenses as to damages.
See Doc. no. 54 at 9 ("Implementation of the Remediation Plan
could mitigate damages suffered by the Town by restoring the site
rather than abandoning it at a cost of approximately $10 million
. . . . While W-P initially intended to use the H&A plan for
mediation purposes only, which was the reason for initially
maintaining its confidentiality, the Plan serves as an essential
piece to W-P's strategy for defending against the Town's claim
for damages, especially in light of the Town's Amended
Complaint."). Wright-Pierce's failure to disclose the report and
an expert to address wetlands issues in a timely manner will not
result in a judgment against Wright-Pierce or preclude all of its
defenses. See Harriman v. Hancock County, 627 F.3d 22, 32 (1st
Cir. 2010).
Further, Wright-Pierce did not move to extend the expert
disclosure deadline until it filed its motion for
reconsideration, which was almost one year after the deadline for
disclosing experts had passed. Trial has been moved to the
middle of April of 2014 at Wright-Pierce's reguest. If the
expert disclosure deadline were extended now, discovery would
have to be reopened to address Wright-Pierce's new defenses and
the expert opinions Wright-Pierce wishes to pursue. That would
also require a significant delay in the trial schedule, which
would counsel strongly against the extension Wright-Pierce seeks.
See, e.g., Samaan v. St. Joseph Hosp., 670 F.3d 21, 36-37 (1st
Cir. 2012) .
In response to Wolfeboro's objection to Wright-Pierce's
motion for leave to file a reply to Wolfeboro's objection to the
motion for reconsideration, Wright-Pierce requested a hearing on
the motion for reconsideration. Wright-Pierce's request for oral
argument is based on its perceived need to address further the
issue of whether the Haley & Aldrich plan is confidential and
privileged. Because that issue is not properly before the court
in this context, oral argument on the motion for reconsideration,
as requested by Wright-Pierce, would not be of assistance to the
court. LR 7.1(d).
Conclusion
For the foregoing reasons, the defendant's motion for leave
to file a reply (document no. 65) is granted as is explained in
this order, the defendant's motion for leave to file a reply
(document no. 69) is denied, and the defendant's motion for
reconsideration (document no. 56) is denied.
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The Haley & Aldrich plan, exhibit 3 to document number 54,
is struck from the record and shall be removed from the docket.
SO ORDERED.
United States District Judge
January 23, 2014
cc: David H. Corkum, Esq.
Rhian M.J. Cull, Esq.
John W. Dennehy, Esq.
Patricia B. Gary, Esq.
Matthew F. Lenzi, Esq.
Kelly Martin Malone, Esq.
Mary E. Maloney, Esq.
Seth Michael Pasakarnis, Esq.
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