United States District Court, W.D. Missouri.
Fernando J. Gaitan, Jr. United States District Judge
pending before the Court is plaintiff's Motion for
Extension of Time or in the Alternative Dismissal Without
Prejudice (Doc. # 22) and defendant's Motion to Strike
Plaintiff's First Set of Interrogatories (Doc. # 26).
filed a three count product liability action on August 27,
2015, alleging injuries when using a crossbow which was
designed, manufactured and sold by defendant. A Scheduling
Order was entered in December 2015, which set the following
• Close of Discovery - October 28, 2016
• Asserting party's expert report - April 29, 2016
• Defending party's expert report- July 1, 2016
• Status reports due: May 16, 2016 and July 18, 2016
parties participated in mediation on March 22, 2016, but the
case did not settle. In the May 2016 status report, the
parties reported that they had been engaged in discovery and
were continuing to work on settling the matter. In the July
2016 status report, the parties reported that they were
engaged in discovery and plaintiff's deposition was
scheduled for September 2016. On October 11, 2016 plaintiff
filed a Motion for Extension of Time, stating that he had
prepared written discovery, but due to "oversight"
had not served the discovery. He also stated that he has not
disclosed his expert witnesses. Plaintiff's counsel
stated that he is a solo practitioner and had lost his
support staff in May and had been required to relocate his
office in July. He also stated that he has experienced
personal matters that caused a disruption in his practice.
opposes the motion, arguing that they have met the deadlines
for disclosure of experts and completion of discovery. If
plaintiff is allowed an extension to designate experts,
defendant states that they would be prejudiced, because
plaintiff's experts would be able to review the opinions
of defendant's experts, before forming their own
opinions. Defendant's counsel states that plaintiff's
counsel did not notify them of the difficulties he was
experiencing and made no mention of these problems in the two
status reports that were filed with the Court. Defendant also
opposes the alternative motion to dismiss without prejudice,
arguing that they have already expended numerous hours and
resources to defend this action.
reply, plaintiff states that although he would prefer to
continue with this matter through a full adjudication, he
recognizes that the delay may be untenable. In this event,
plaintiff requests that the Court grant his motion for a
voluntary dismissal. Plaintiff states that the only
deposition taken has been that of plaintiff and any discovery
completed could be used in the event the matter is refiled.
41(a)(2) states in part:
Except as provided in Rule 41(a)(1), an action may be
dismissed at the plaintiff's request only by court order,
on terms that the court considers proper. . . .Unless the
order states otherwise, a ...