Case: 1:11-cv-00103-GHD-DAS Doc #: 227 Filed: 09/04/13 1 of 3 PageID #: 1389
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE THE AMENDED REPORT OF JOHN R. KREWSON Plaintiff, Kmart Corporation, respectfully submits its objections to the magistrate judge’s ruling denying Kmart leave to file the Amended Report of its expert, John R. Krewson, and requests that this Court vacate the magistrate judge’s ruling. Rule 72(B) of the Local Uniform Civil Rules provides that the ruling of a magistrate judge will be reversed if the district judge determines that the magistrate judge’s findings of fact are clearly erroneous, or that the magistrate judge’s ruling is clearly erroneous or contrary to law. The magistrate judge’s ruling should be reversed because Kmart has shown the good cause to grant leave for Kmart to file the Amended Report of Mr. Krewson. Federal Rule of Civil Procedure 16(b) allows a scheduling order to be modified for good cause. To determine whether good cause has been shown, courts look at: (1) the explanation for the failure to meet the deadline; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.1
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Reliance Ins. Co. v. La. Land & Exploration Co., 110 F. 3d 253, 257 (5th Cir. 1997).
Case: 1:11-cv-00103-GHD-DAS Doc #: 227 Filed: 09/04/13 2 of 3 PageID #: 1390
The magistrate judge’s ruling now binds Kmart to incorrect data that everyone knows to result from a clerical error, and instead Kmart is precluded from presenting the correct data despite having nearly six months to go before trial. Kmart has explained that neither it nor Mr. Krewson discovered the mistake in Mr. Krewson’s Initial Report until Mr. Krewson’s deposition on May 22, 2013. By that time, the deadline to submit Kmart’s expert designations had passed. Moreover, Mr. Krewson’s Amended Report is important to Kmart’s case because it confirms that the presence of the Kroger store contributed to the damages incurred by Kmart after the May 2, 2010 flood event. Kmart will be seriously prejudiced if it is precluded from amending Mr. Krewson’s report because Mr. Krewson’s revised models and report still indicate that the presence of the Kroger store adversely impacted Kmart and contributed to the flooding at its store on May 2, 2010. The Defendants will not be seriously prejudiced if Kmart is permitted to file the Amended Report, and any potential prejudice can be cured by a continuance of the discovery and motions deadlines or, alternatively, by a continuance of the trial date if necessary. Kmart has demonstrated the necessary good cause to grant leave to file Mr. Krewson’s Amended Report, thus the magistrate judge’s ruling is in error and should be reversed.
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Case: 1:11-cv-00103-GHD-DAS Doc #: 227 Filed: 09/04/13 3 of 3 PageID #: 1391
/s/ Ryan O. Luminais __________________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served on all counsel of record and all unrepresented parties by e-mail, by facsimile, and/or by placing a copy of the same in the U.S. Mail, properly addressed and postage paid, this 4th day of September, 2013.
/s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS
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