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Association of Apartment Owners of Imperial Plaza v. Fireman's Fund Insurance Company

May 16, 2013

ASSOCIATION OF APARTMENT OWNERS OF IMPERIAL PLAZA, PLAINTIFF,
v.
FIREMAN'S FUND INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge

ORDER AFFIRMING IN PART AND REVERSING AND REMANDING IN PART THE MAGISTRATE JUDGE'S ORDER AMENDING THE RULE 16 SCHEDULING ORDER PROCEDURAL & FACTUAL

BACKGROUND*fn1

This case arises from a dispute between an insurance company and the owners of a property as to whether an insurance agreement covers arsenic damage to the property. For the purposes of considering the current motion, the Court presents a brief factual background.

The Association of Apartment Owners of Imperial Plaza ("Plaintiff" or "Imperial Plaza") owned a building covered by an insurance policy issued by Fireman's Fund Insurance Company ("Defendant" or "FFIC"). Def.'s Mtn. to Amend at 4. The building suffered damage from, inter alia, floor deflections, wall cracks, and arsenic contamination. April 9 Motion for Summary Judgment ("MSJ") Order at 23.*fn2 Both parties plan to submit evidence regarding the source of the water that may have caused some of the various types of damage suffered by the building. Def.'s Mtn. to Amend at 3-5, Plntf.'s Opp. at 2-3. Plaintiff hired Colin Murphy to conduct tests on the building; Mr. Murphy issued a report on June 9, 2010, indicating that arsenic had contaminated the fourth floor concrete floor slab. April 9 MSJ Order at 3-4. Plaintiff tendered a claim to FFIC regarding the damage to the building. Id at 4, Def.'s Mtn. to Amend at 4.

Defendant hired a consultant, Allana, Buick, and Bers, Inc. ("ABB") to investigate the damage. Def.'s Mtn. to Amend at 4. Mr. Wolf of ABB completed an investigation of the damage to the Building and sent a report to Defendant in 2011. Def.'s Mtn. to Amend at 6. Based on the information in Mr. Murphy's and Mr. Wolf's reports, Defendant denied Plaintiff's claim for insurance coverage. Def.'s Mtn. to Amend at 4. In October 2011, Mr. Wolf passed away. Def.'s Mtn. to Amend Ex. A.

On December 13, 2011, Plaintiff filed a Complaint asking for declaratory relief that Fireman's Fund Insurance Company ("Defendant" or "FFIC") must pay benefits to Plaintiff under an insurance policy issued by FFIC. ECF No. 1.

The magistrate judge issued a Federal Rule of Civil Procedure ("Rule") 16 Scheduling Order on April 6, 2012. ECF No. 15. The magistrate judge issued an Amended Rule 16 Scheduling Order on May 18, 2012 ("Amended Scheduling Order"). ECF No. 18. The Amended Scheduling Order set deadlines, inter alia, for each party to disclose the identity and written reports under Rule 26(a)(2) of any expert witness the party intended to use at trial. Id at 2 ¶ 11. Plaintiff was required to disclose its expert witnesses by October 29, 2012, and Defendant was required to disclose its expert witnesses by November 28, 2012. Id. The Amended Scheduling Order also provided that "Disclosure of the identity and written report of any person who may be called solely to contradict or rebut the evidence of a witness identified by another party . . . shall occur within thirty (30) days after the disclosure by the other party." Id.

On April 4, 2012, Defendant submitted a Rule 26(a)(1) Initial Disclosures statement naming Mr. Wolf or other representatives of ABB as individuals "who may have discoverable information relevant to Defendant's claims and defenses." ECF No. 13. At this point in time, Mr. Wolf had been deceased for over five months. Def.'s Mtn. to Amend Ex. A.

On October 29, 2012, Plaintiff filed its expert witness disclosure for Colin Murphy. ECF No. 19. Plaintiff also asked for, and Defendant agreed to, four separate extensions of time to file Colin Murphy's report, which extended Plaintiff's deadline to November 21, 2012. Plntf.'s Objection at 3, ECF No. 64. Defendant's deadline was consequently extended to December 21, 2013 ("Deadline"). Plaintiff filed Colin Murphy's report on November 20, 2012; in this report, Mr. Murphy noted the existence of three additional probable sources of water that could have caused damage to the building. ECF No. 22; Def.'s Opp. at 6, ECF No. 77. However, Defendant did not file a Rule 26(a)(2) disclosure for any expert witness by the December 21, 2013 Deadline. See ECF Nos. 22-36.

On January 14, 2013, Defendant obtained new counsel, who filed a Motion to Amend the Rule 16 Scheduling Order on January 30, 2013 ("Motion to Amend"). ECF Nos. 33 & 37. The Motion to Amend argued that Defendant had "good cause" to extend the deadline to disclose a replacement expert because Defendant's expert, Mr. Wolf, died in 2011; although Defendant had never disclosed Mr. Wolf as an expert witness under Rule 26(a)(2). Motion to Amend at 6, Ex. A, ECF No. 37-1. Neither party disputes that Mr. Wolf passed away on October 16, 2011, almost two months before Plaintiff filed its Complaint on December 13, 2011. Id at Ex. A, Plntf.'s Appeal at 3, ECF No. 1. Plaintiff filed an Objection to Defendant's Motion to Amend on March 15, 2013. ECF No. 64. Defendant filed a Reply in support of its Motion to Amend on March 19, 2013. ECF No. 67.

The magistrate judge held a hearing regarding the Motion to Amend on March 25, 2013 and granted Defendant's Motion ("Order Granting Motion to Amend"). ECF Nos. 69 and 76. Plaintiff timely filed an Appeal of the March 25 Order on April 5, 2013. ECF No. 73.*fn3 Defendant filed an Opposition on April 19, 2013. ECF No. 77. The Court determines that this matter may be considered without a hearing under Local Rule 7.2(e).

STANDARD

I. Appeal From a Magistrate Judge's Order

Under Local Rule 74.1, any party may appeal from a magistrate judge's order determining a non-dispositive pretrial matter or, if a reconsideration order has issued, the magistrate judge's reconsideration order on such a matter. The district judge shall consider the appeal and shall set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law. See L.R. 74.1; see also 28 U.S.C. ยง 626(b)(1)(A); Fed. R. Civ. P. ...


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