Cook v. Parkway Plaza West Condominiums

23 Mass. L. Rptr. 74

• Court: Massachusetts Superior Court
• Decided: September 6, 2007
• Docket: No. 06CV3891F
• Status: Published

Opinion

Curran, Dennis J., J.

The defendants have filed an assented-to Motion to Extend the Tracking Order which is ALLOWED in part as follows.

This is a simple slip and fall/snow and ice case. Mrs. Rosemary Cook allegedly fell nearly four years ago and sustained serious injuries.

This action was filed over ten months ago. Its Tracking Order required that rule 15 motions be filed over five months ago on March 30, 2007, discovery close on August 27, 2007 (last week), and this case go to judgment by December 25, 2007.

On the eve of the close of discovery, the parties seek to extend the Tracking Order by four months because, they state, they need to add a new party as a defendant. As grounds, they claim that they just discovered the potential liability of a snowplow operator and that such discovery had been “. . . delayed due to the non-cooperation of witnesses, and that court enforcement of a subpoena may ultimately prove necessary.” If that is so, the parties should have timely brought the need for such enforcement to the attention of the court. Additionally, in the nearly four years since Mrs. Cook’s fall, it is difficult — especially in light of her serious personal injuries, with a broken leg, surgically repaired ankle which required the attachment of plates and screws, and after incurring nearly $50,000 in medical bills — to believe that a proper pre-suit investigation had not been conducted into the person(s) responsible for the condition which allegedly caused her fall.

Moreover, in the intervening weeks since the parties filed this motion, the plaintiff has yet to file a motion to amend the complaint. Perhaps the parties are awaiting a decision on this motion before filing such a motion; however, given that time is of the essence in the parties’ need to comply with the Tracking Order, it seems a waste of valuable time during which service could have been effectuated and discoveiy ensue as to that new defendant(s).

In summary, the parties are cautioned that Tracking Orders are Court Orders which are to be minded.

The parties are urged to file an amended complaint forthwith, without need to comply with Rule 9A. They are further directed to promptly seek court enforcement of a properly-issued subpoena as to the complained-of individual or waive their rights in this regard.

Discovery will be extended for about sixty (60) days until Friday, November 2, 2007. The parties are ordered to expeditiously conduct discovery as to the new defendant(s). A final pretrial conference will he held on Wednesday, December 19, 2007. A Notice of Final Pretrial Conference accompanies this Memorandum.