Lax v. APP of New Mexico ED, PLLC

• Court: District Court, D. New Mexico
• Decided: March 10, 2022
• Docket: 1:20-cv-00264
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

BRIAN LAX, TRACEY BURON-HAHNLEIN, WERNER HAHNLEIN, and JEREMY HADER, on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v. CIV No. 20-264 SCY/JFR APP OF NEW MEXICO ED, PLLC, f/k/a ALIGNMD OF NEW MEXICO, PLLC, and LOVELACE HEALTH SYSTEM, LLC,

Defendants.

ORDER GRANTING MOTION TO STRIKE1

When Defendant APP of New Mexico ED, PLLC (“APP’”) removed this case to federal court under the Class Action Fairness Act (Doc. 1), Plaintiffs promptly filed a motion to remand (Doc. 25). In considering the motion to remand, the Court reviewed the “local controversy exception” to the Class Action Fairness Act and found that Plaintiffs had not met their burden to establish that greater than two-thirds of the proposed class members are citizens of New Mexico. Doc. 39 at 23. However, the Court recognized the obstacles Plaintiffs face in making such a showing and so took the matter under advisement to allow Plaintiffs the “opportunity to submit to the referral judge a proposal for limited discovery on the question of citizenship.” Doc. 39 at 24-25 (emphasis is original). Accordingly, the parties briefed a proposed discovery plan and the referral judge, Judge John Robbenhaar, entered a discovery order on November 22, 2020 for

1 Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings and to enter an order of judgment. Docs. 9, 14, 15, 16, 17. limited citizenship discovery. Doc. 47. The parties conducted citizenship discovery and Plaintiffs produced an original and supplemental expert report by Professor James Henry Degnan. See Docs. 59, 68. In the present motion, Defendants argue that Plaintiffs’ supplemental expert report is improper and untimely and move to strike it. Doc. 69. The motion to strike is fully briefed (Docs. 71, 75) and is ready for a decision.

To provide context for this present dispute, below is a table that outlines the sequence of discovery Judge Robbenhaar set forth in his discovery order:2 Deadline Allotted Time Timeframe for Completed Completion On Parties submit motion for 7 days after discovery December 2, 2020 December 1, protective order order 2020 (Doc. 49) Defendants to disclose to 10 days after protective December 11, 2020 December 11, Plaintiffs a list of all order enters 2020 (Doc. persons who arguably fit 50) the class definition Plaintiffs to provide a 7 days after receiving the December 21, 2020 December 21, notice of deposition to list of putative class 2020 (Doc. Defendants members 51) Parties to conduct a Rule 10 days after the notice December 31, January 15, 30(b)(6) deposition of deposition 2020, but extended 2021 by Order (Doc. 53) to January 15, 2021 Plaintiffs to request 7 days after the January 22, 2021 additional information deposition Defendants produce 10 days after Plaintiffs’ additional records request Plaintiffs provide 30 days after the February 15, 2021 Defendants a script of any deposition questions they intend to ask putative class members Plaintiffs to conduct any 60 days after deposition March 16, 2021, survey, random sampling, but extended by or other research related to Order (Docs. 55, the citizenship issue 57) to May 31, 2021

2 Where the Court does not have the date of a request or the completion of a task, the Court has left the table blank. Plaintiffs to provide expert 30 days after survey/ June 30, 2021 June 30, 2021 report sampling is complete (Doc. 59) Defendants to depose 30 days after Plaintiffs’ July 30, 2021 July 22, 2021 Plaintiffs’ expert expert report (Doc. 63) Defendants to produce 30 days after Plaintiffs’ July 30, 2021, but August 16, rebuttal report expert report extended by Order 2021 (Doc. (Doc. 64) to August 65) 15, 2021 Plaintiffs to depose 30 days after Defendants’ September 15, 2021 September 10, Defendants’ expert expert report 2021 (Doc. 66) Plaintiffs to file amended 30 days after all expert October 11, 2021 October 8, motion to remand reports are disclosed and 2021 (Doc. expert depositions are 70) complete

Of note for the present motion, Plaintiffs disclosed their expert report of Prof. Degnan on June 30, 2021. Doc. 59. Defendants deposed him on July 22, 2021 (see Doc. 63) and produced their rebuttal expert report on August 16, 2021 (Doc. 65). On September 9, 2021, Plaintiffs then disclosed a supplemental expert report of Prof. Degnan. Doc. 68. Defendants seek to strike the supplemental report, arguing that the report is untimely, in violation of the discovery order. They argue that “[t]he Court’s Order clearly contemplated that there would be a period under which Plaintiffs could conduct their survey, have their statistician expert provide a report, and then have Plaintiffs’ statistician be deposed. It did not contemplate that Plaintiffs would be permitted to conduct a new second telephone survey after their statistician expert was deposed to try and fix the error in the first survey.” Doc. 69 at 1. Plaintiffs, on the other hand, argue that Defendants’ expert criticized the methods contained in Prof. Degnan’s original expert report. Accordingly, they argue that the purpose of the supplemental report “was to oblige Defendants and carry out a second sample.” Doc. 71 at 1. This, they argue, was not improper because “[t]he Supplemental Expert Report states the results of a second sample that was carried out based on Defendants’ explicit statement that Plaintiffs’ first sample was invalid without confirmation from an additional independent sample.” Doc. 71 at 5. The Court agrees with Defendants that the supplemental report is untimely. By Plaintiffs’ own explanation, the supplemental report, in essence, is a rebuttal report to Defendants’ expert report. That is, Defendants’ expert report purports to cast doubt on the methodology and

sampling in Plaintiffs’ original expert report. Upon review of Defendants’ expert report, Plaintiffs then conducted a second sample and their expert created a rebuttal report attempting to “fix” the issues raised by Defendants’ expert – i.e., attempting to cast doubt on the conclusions reached by Defendants’ expert. The discovery order in place does not provide for such a rebuttal report. To the contrary, Judge Robbenhaar’s order repeatedly states that he aims to limit the parties to the narrow discovery path detailed in his Order. Plaintiffs argue that the supplemental report causes no prejudice to Defendants since the report and the “second sample simply replicated the first sample according to Defendants’ specifications.” Doc. 71 at 4. The Court disagrees that such a report does not prejudice

Defendants. The discovery order set a specific timeline for Plaintiffs to provide Defendants with a script of any questions they intend to ask putative class members, conduct the survey, produce an expert report, and have their expert deposed before Defendants produced a rebuttal report and had their expert deposed. By adding a supplemental report to the end of this process, Defendants were unable to depose Prof. Degnan on his new report and Defendants’ expert did not have the benefit of Prof. Degnan’s supplement when he prepared his expert report. As Defendants note, if the Court were to allow Plaintiffs’ supplemental expert report, Defendants should be given additional time to re-depose Plaintiffs’ expert (at Plaintiffs’ cost) and to respond to the supplemental report. Plaintiffs do not oppose giving Defendants an opportunity to re-depose Prof. Degnan. Essentially, this would be a re-do, where Plaintiffs’ supplemental expert report would act much like an initial expert report. The Court declines to authorize this re-do, which would necessarily extend jurisdictional discovery on citizenship past the one-year mark. The discovery order clearly put Plaintiffs on notice that they would be given time to produce an expert report before Defendants’ rebuttal report, but not that they would be given time to produce a supplemental rebuttal report. Further, the parties have had ample time (almost a year) to conduct citizenship discovery. As the Court warned in its Memorandum Opinion and Order on the Motion to Remand, it is only allowing limited citizenship discovery and is mindful of the Tenth Circuit’s admonition that resolution of Jurisdictional issues should not “bog[] [cases] down in mini-trials before they have even begun.” Doc. 39 at 24 (citing Hammond v. Stamps.com, Inc, 844 F.3d 909, 913 (10th Cir. 2016)). IT IS THEREFORE ORDERED that Defendants’ Motion to Disregard and Strike Plaintiffs’ Supplemental Report of James Degnan, Ph.D. (Doc. 69) is GRANTED. The Court strikes Plaintiffs’ supplemental expert report (see Doc. 68) and will not consider arguments in the amended motion to remand, response, and reply briefs that relate to the supplemental expert report. Mire Steven C. Yarbrough UNITED STATES MAGISTRATE JUDGE Presiding by Consent