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Myers v. Barnett Outdoors, LLC

United States District Court, W.D. Missouri.

November 22, 2016

ERNEST MYERS, Plaintiff,
v.
BARNETT OUTDOORS, LLC, Defendant.

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge

         Currently 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).

         I. BACKGROUND

         Plaintiff 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 dates:

• 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

         The 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.

         Defendant 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.

         In 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.

         II. STANDARD

         Fed.R.Civ.P. 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 ...

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