The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court is Defendant Larry Crawford's*fn1 ("Defendants") objection (Court File No. 54) to United States Magistrate Judge Susan K. Lee's order modifying the Scheduling Order (Court File No. 42) in this case. Defendants request the Court reverse the magistrate judge's order modifying the Scheduling Order. Plaintiffs Trustees*fn2 ("Plaintiffs") filed a response (Court File No. 55) and Defendants filed a reply (Court File No. 56). For the following reasons, the Court AFFIRMS the magistrate judge's order (Court File No. 42 ) and DENIES Defendants' objections (Court File No. 54).
The Scheduling Order in this case required Plaintiffs to disclose any expert testimony by June 1, 2007 (Court File No. 15, p. 2). Over one month later, Plaintiffs sought to amend the Scheduling Order to designate a handwriting expert because of a dispute concerning the authenticity of a signature purporting to be Defendant Larry Crawford's ("Crawford") (Court File No 37, pp. 1-3). Plaintiffs contend the dispute did not become clearly ripe until the July 12, 2007, deposition of Crawford (id. at p. 2).
At the hearing before the magistrate judge, the parties agreed the authenticity of the signature is a "critical issue" in this case (Court File No. 42, p. 2). In her order, the magistrate judge explained the Plaintiffs' position:
Plaintiffs stated they waited until after taking Crawford's deposition to decide whether to designate a handwriting expert. Plaintiffs explained they tried to schedule Crawford's deposition in April and May, but were unable to do so until after the June 1, 2007 deadline for their expert witness disclosures. . . Plaintiffs stated their failure to designate a handwriting expert on or before June 1, 2007, as required in the Court's scheduling order, was an oversight on the part of Plaintiffs' counsel. (id.).
Defendants counter Plaintiffs were aware of the dispute over the signature's authenticity in late 2006 and knew of the issue's importance to the case (Court File No. 41, p. 2; Court File No. 54, p. 2). Defendants note that on October 23, 2006, Plaintiffs' counsel wrote a letter to Defendants' counsel in which they stated they intend to prove the authenticity of the signature (Court File No. 54, Exh. 2). After Defendants denied the signature's authenticity in a request for admission (id., Exh. 3), Plaintiffs' counsel wrote to Defendants' counsel on February 16, 2007, saying they would seek reimbursement for proving the signature's authenticity (id., Exh. 4). Thus, Defendants contend Plaintiffs knew of the dispute over the signature's authenticity well before Crawford's deposition.
The magistrate judge granted Plaintiffs' motion, ruling "it was arguably reasonable for [Plaintiffs] to depose Crawford about the signature" prior to designating a handwriting expert (Court File No. 42, p. 4). The magistrate judge also sought to "eliminate any prejudice whatsoever to Defendants with respect to the relief sought by Plaintiffs by ensuring they have access to the original Agreement bearing the signature at issue, adequate time to depose the designated expert, and adequate time to designate an expert of their own" (id.). Defendants do not appear to argue they have been prejudiced; they argue a lack of prejudice towards them does not compensate for Plaintiffs' lack of good cause (Court File No. 54, p. 11).
A. Magistrate's Decision on Non-Dispositive Pretrial Matters
In reviewing a magistrate judge's decision on a non-dispositive pretrial matter, the Court considers objections and "shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); accord Harlamert v. World Finer Foods, Inc., 489 F.3d 767, 771 (6th Cir. 2007). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be deemed clearly erroneous." Harlamert, 489 F.3d at 771.
B. Modifying Scheduling Orders
A Scheduling Order "shall not be modified except upon a showing of good cause" and leave of the Court. Fed. R. Civ. P. 16(b). "The primary measure of Rule 16's 'good cause' standard is the moving party's diligence in attempting to meet the case management order's requirements." Andretti v. Borla Performance Indus., 426 F.3d 824, 830 (6th Cir. 2005) (citing Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)). Specifically, the party must show "that despite their diligence they could not meet the original deadline." Leary v. Daeschner, 349 F.3d 888, 907 (6th Cir. 2003). Thus, "mere inadvertence" by the moving party, even coupled with an absence of prejudice to the non-moving party, is insufficient to establish good cause. Anderson v. City of Dallas, 210 F.R.D. 579, 581 (N.D. Tex. 2002); see also Dilmar Oil Co. v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997) ("[c]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief"). After the moving party establishes good ...