                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
GEORGE J. WATT, JR.,          )
                              )
          Plaintiff,          )
                              )
          v.                  )        Civil Action No. 10-595 (RWR)
                              )
ALL CLEAR BUSINESS SOLUTIONS )
LLC,                          )
                              )
          Defendant.          )
_____________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff George J. Watt has moved to reopen discovery for

the limited purpose of designating economic expert Dr. Richard

Lurito to project the present value of Watt’s future medical

costs.   Defendant All Clear Business Solutions, LLC (“All Clear”)

opposes the motion, arguing that Watt has failed to comply with

court-ordered discovery deadlines and that allowing this

additional expert will considerably delay trial.     Magistrate

Judge Alan Kay recommends that the motion be granted.     Though

Watt’s delay was avoidable, there is good cause to repen

discovery and Watt’s motion will be granted.

                              BACKGROUND

     Watt’s complaint asserts one negligence claim against All

Clear, arising from the company’s alleged failure properly to

secure a filing cabinet its employees were unloading from a

truck.   (Compl. ¶¶ 9, 11.)    The filing cabinet fell, struck Watt,
                                - 2 -

and caused him injuries, including a permanent back injury, which

resulted in “medical expenses and other economic loss.”    (Id.

¶ 12.)   The August 6, 2010 scheduling order set December 5, 2010

as the deadline for the close of discovery.   On Watt’s motion,

and with All Clear’s consent, the discovery deadline was

continued to January 5, 2011.   The parties later requested and

were granted a further continuance until April 11, 2011.   During

the April 15, 2011 post-discovery status conference, the parties

reported that discovery was complete.   They pursued private

mediation, unsuccessfully, in June.

     At the pre-trial conference before Magistrate Judge Kay in

September, Watt stated that he had hoped the parties would

stipulate to the present value of his future medical treatment,

but that they had not reached an agreement.   Report and

Recommendation [Docket 22] at 1.    Accordingly, on September 27,

2011, Watt moved to reopen discovery by supplementing his expert

designations with an economic expert.   (Pl.’s Mem. in Supp. of

Pl.’s Mot. to Reopen Disc. (“Pl.’s Mem.”) at 1.)   In his motion,

Watt explains that he had “expect[ed] that the case would settle

prior to the need for incurring the additional cost of this

expert[,]” that “[p]ermitting the relief sought . . . would more

fully permit the trial of this case on its merits[,]” and that

adding Dr. Lurito would “not materially prejudice [All Clear’s]

trial preparation.”   (Id. at 3.)
                                   - 3 -

        All Clear argues in opposition that adding Dr. Lurito as an

economic expert will cause considerable delay, and that Watt has

proffered no legitimate reason for filing his motion on this late

date.    (Def.’s Opp’n ¶¶ 3, 5.)    However, Magistrate Judge Kay

recommends granting Watt’s motion and denying All Clear’s request

for a hearing.    Report and Recommendation [Docket 22] at 1.      “No

prejudice will result from reopening discovery for this limited

purpose, as a trial date has not been set in this case.      All

Clear will have ample time to review the expert’s report, and if

necessary, depose the expert.”      (Id. at 2.)   Neither party has

objected to the magistrate judge’s report and recommendation.

                              DISCUSSION

        “A [scheduling order] may be modified only for good cause

and with the judge’s consent.”      Fed. R. Civ. P. 16(b)(4).

“[R]eopening discovery . . . [therefore] require[s] a showing of

good cause[.]”    U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of

Am., 576 F. Supp. 2d 128, 133 (D.D.C. 2008) (citation omitted);

accord LCvR 16.4 (“The court may modify the scheduling order at

any time upon a showing of good cause.”).     “What constitutes good

cause . . . necessarily varies with the circumstances of each

case.”    6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure (“6A Wright Miller & Kane”)

§ 1522.2 (3d ed. 2010).    Good cause can be shown, “[i]n general,

if the party seeking relief can show that the deadlines cannot

reasonably be met despite the party’s diligence[.]”      Id.; see
                                - 4 -

also Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,

630 F.3d 217, 226 (D.C. Cir. 2011) (quoting 6A Wright Miller &

Kane § 1552.1 (2d ed. 1990) (citation omitted)).   Courts have

considered multiple factors when determining whether to grant

motions to reopen discovery.   These include “(1) whether trial is

imminent; (2) whether the request is opposed; (3) whether the

non-moving party would be prejudiced; (4) whether the moving

party was diligent in obtaining discovery within the guidelines

established by the court; (5) the foreseeability of the need for

additional discovery in light of the time allotted by the

district court; and (6) the likelihood that the discovery will

lead to relevant evidence.”    Childers v. Slater, 197 F.R.D. 185,

188 (D.D.C. 2000); see also Smith v. United States, 834 F.2d 166,

169 (10th Cir. 1987); Vineberg v. Bissonnette, 548 F.3d 50, 55

(1st Cir. 2008).   “[W]hether to . . . reopen discovery is

committed to the sound discretion of the trial court[.]”

Childers, 197 F.R.D. at 187 (internal quotation marks and

citation omitted).

     Watt has not demonstrated that he could not reasonably have

completed discovery by the established deadline.   See Capitol

Sprinkler Inspection, Inc., 630 F.3d at 226; Gotlin v. Lederman,

No. 04-CV-3736, 2009 WL 2843380, at *7 (E.D.N.Y. Sept. 1, 2009).1


     1
          In Gotlin, the court denied the plaintiff’s request to
reopen discovery where he “had ample opportunity to produce the
Records prior to the close of expert discovery, and can offer no
reason why the deadline for expert discovery, which was
                                 - 5 -

After the December 2010 deadline for the close of discovery was

set, Watt twice successfully moved to continue it.   However,

during the more than eight months between August 6, 2010, when

the scheduling order was entered, and the April 11, 2011 final

discovery deadline, Watt never sought to designate Dr. Lurito as

an economic expert.   He cites no authority for the proposition

that merely hoping for or anticipating settlement and

stipulations excuses his failure to meet court-ordered deadlines.

(See Def.’s Opp’n ¶ 4.)

     On balance, the Childers factors nonetheless weigh in Watt’s

favor.   See Childers, 197 F.R.D. at 187; Smith, 834 F.2d at 169.

On the one hand, Watt appears to concede that he did not

diligently “obtain[] discovery within the guidelines established

by the court.”   Smith, 834 F.2d at 169.   (See Pl.’s Mem. at 1

(“Mr. Watt regrets filing this motion at this time[.]”).)    See

also Bakalar v. Vavra, No. 05 Civ. 3037, 2011 WL 165407, at *4

(S.D.N.Y. Jan. 14, 2011) (citing Trebor Sportswear Co., Inc. v.

The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (“A

significant consideration is whether there has already been

adequate opportunity for discovery.”)    Watt also reasonably could

have foreseen “the need for additional discovery in light of the

time allowed for discovery[.]”    Smith, 834 F.2d at 169.   The need

for an expert’s projection of the present value of Watt’s future


repeatedly extended at [his own] behest, could not have
reasonably been met.” Gotlin, 2009 WL 2843380, at *7.
                                - 6 -

medical costs should have been apparent from the outset of the

litigation.

     On the other hand, no trial date has been set.    Although All

Clear opposed Watt’s motion, the opposition does not describe any

significant prejudice All Clear would suffer from reopening

discovery for the limited purpose of adding an economic expert.

In re Christou, Bankruptcy Nos. 06-68251-MHM, 06-68376-MHM, 2008

WL 7880888, at *1 (Bkrtcy. N.D. Ga. Nov. 30, 2008) (“Defendant

has presented no specific evidence of prejudice except the mere

passage of time.”)   Nor has All Clear objected to the magistrate

judge’s recommendation to grant Watt’s motion.   Finally, it seems

likely that the additional expert discovery as to Watt’s future

medical costs will lead to relevant evidence of the scope of the

damages at issue, and All Clear will have a fair opportunity to

meet the new evidence.    Watt’s motion, then, will be granted.

                         CONCLUSION AND ORDER

     Watt has not justified his failure to supplement his expert

designations before now.    However, there is good cause for a

limited reopening of discovery.    Accordingly, it is hereby

     ORDERED that the plaintiff’s motion [19] to reopen discovery

be, and hereby is, GRANTED.    Plaintiff shall have 15 days from

the entry of this Order to designate Dr. Richard Lurito as an

expert and serve All Clear with any report by Dr. Lurito.      All

Clear shall have until 45 days after entry of this Order to

depose Dr. Lurito.   It is further
                               - 7 -

     ORDERED that the parties file a joint status report and

proposed order within 7 days after the magistrate judge enters

the Local Civil Rule 16.5(a)(3) Pretrial Order.   See Partial

Scheduling Order ¶ 3.   The joint status report shall include

three mutually agreeable dates on which the trial can begin.

     SIGNED this 13th day of January, 2012.



                                        /s/
                               RICHARD W. ROBERTS
                               United States District Judge
