United States District Court, M.D. Tennessee, Columbia Division
MEMORANDUM AND ORDER
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE
the Court are Defendant's Objection to Plaintiff's
Designation of Deposition Testimony (Doc. No. 194),
Plaintiff's Motion to Alter or Amend Judgement pursuant
to Federal Rule of Civil Procedure 59(e), and to Continue
Trial and/or in the alternative, for Voluntary Dismissal
(Doc. No. 196), and Plaintiff's Motion to Quash (Doc. No.
203). Defendant's Objection to Plaintiff's
Designation of Deposition Testimony (Doc. No. 194) was
voluntarily WITHDRAWN during the January 12, 2017 hearing,
and for the reasons stated on the record, Plaintiff's
Motion to Quash (Doc. No. 203) is DENIED as moot.
the remaining motions (Doc. No. 196), the Court construes
Plaintiff's Rule 59(e) motion as a Rule 54(b) motion, as
the January 6, 2017 Order is an interlocutory order and the
Court has not entered final judgment. F.R.C.P 54(b)
(“any order or other decision . . . that adjudicates
fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any
of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims
and all the parties' rights and liabilities.”). For
the following reasons, Plaintiff's Motion to Alter or
Amend is DENIED, Plaintiff's Motion to Continue Trial is
DENIED, and Plaintiff's Motion for Voluntary Dismissal is
PLAINTIFF'S MOTION TO ALTER OR AMEND
filed this Motion regarding the admissibility of the expert
opinions of Randy Gray and Steven J. Koontz. On January 6,
2017, the Court entered an Order striking Gray's opinion
as untimely, and Koontz's opinion for failing to meet the
evidentiary requirements under Federal Rule of Evidence 702.
(Doc. No. 193.) Plaintiff argues that disclosure of
Gray's testimony was not untimely because
“Plaintiff served expert disclosure on August 31, 2015,
which contained opinions by Mr. Gray” (Doc. No. 197.)
Defendant states that the August 31, 2015 disclosure was
incomplete, and that Defendant did not receive the complete
disclosure of Mr. Gray's opinions until Friday, December
16, 2016, one month before trial. (Doc. No. 145.)
may reconsider interlocutory orders where there is “(1)
an intervening change of controlling law; (2) new evidence
available; or (3) a need to correct a clear error or prevent
manifest injustice.” Louisville/Jefferson Cty.
Metro. Gov't v. Hotels.com, L.P., 590 F.3d 381, 389
(6th Cir. 2009) (quoting Rodriguez v. Tenn. Laborers
Health & Welfare, 89 Fed.Appx. 949, 959 (6th Cir.
2004)). Here, Plaintiff bases his motion on the Dawn
Forbes' Declaration, claiming the Declaration is
“new evidence not obtainable at the time of
Plaintiff's responsive pleading.” (Doc. No. 197 at
stated during the January 6, 2017 hearing, the Court reviewed
the August 31, 2015 and December 16, 2016 Gray disclosures
and determined that the August 31 disclosure was incomplete.
(Doc. No. 144-1.) Dawn Forbes' Declaration simply states
that she faxed “a complete copy of Plaintiff's Rule
26 Expert Disclosure to Lowe's initial attorney.”
(Doc. No. 197-1.) She did not include a copy of the actual
disclosure faxed, so she did not refute that the August 31,
2015 disclosure did not contain Gray's full opinion.
(Id.) Defendant provides the declaration of John W.
Simmons, Lowe's initial attorney, who confirms receipt of
the Gray disclosure and provides an actual copy of both the
faxed disclosure and the subsequently mailed disclosure.
Neither document contain the Gray opinion provided on
December 16, 2016. (Doc. No. 201.) Plaintiff has failed to
establish that the December 16, 2016 Gray disclosure was
timely disclosed on August 31, 2015.
also argues that striking of Koontz's testimony is a
clear error of the law, because Koontz is qualified to give
an expert opinion and his opinions are reliable because they
are based on the laws of physics. As the Court stated during
the January 6, 2017 hearing, Koontz's opinions are based
on his “analysis” and “testing.”
However, his opinions are not reliable because there is no
explanation, description or foundation of what analysis or
testing was performed to justify his opinions. For these
reasons, the Court found that Plaintiff failed to establish
that Koontz met the requirements under Federal Rule of
on the foregoing, the Court DENIES
Plaintiff's Motion to Alter or Amend.
MOTION TO CONTINUE TRIAL
Motion to Continue Trial until the Court addresses the merits
of Plaintiff's Motion to Amend or Alter is
DENIED, for the reasons stated in court.
PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL
Rule of Civil Procedure 41(a)(2) states that “an action
may be dismissed at the plaintiff's request only by court
order, on terms that the court considers proper."
"Whether dismissal should be granted under the authority
of Rule 41(a)(2) is within the sound discretion of the
district court." Grover by Grover v. Eli Lilly &
Co., 33 F.3d 716, 718 (6th Cir. 1994) (citing Banque
de Depots v. Nat'l Bank of Detroit, 491 F.2d 753,
757 (6th Cir. 1974)).
Plaintiff seeks to voluntarily dismiss his case because of
the Court's ruling to strike Plaintiff's expert
witnesses. (Doc. No. 197 at 13.) Defendant opposes dismissal.
(Doc. No. 200.) The Court finds that permitting
Plaintiff's voluntary dismissal without prejudice would
constitute plain legal prejudice. As the Sixth Circuit held,
“to effectuate this purpose, district courts consider
whether permitting voluntary dismissal will cause the
nonmovant to suffer ‘plain legal prejudice, ' . . .
In determining whether such prejudice would result, courts
typically consider ‘the defendant's effort and
expense of preparation for trial, excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the
action, insufficient explanation for the need to take a
dismissal, and whether a motion for summary judgment has been
filed by the defendant.'” Smith v. Holston Med.
Grp., P.C., 595 F. App'x ...