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Anstalt v. Route 66 Junkyard Brewery LLC

United States District Court, D. New Mexico

April 5, 2019

LODESTAR ANSTALT, a Liechtenstein Corporation, Plaintiff,
ROUTE 66 JUNKYARD BREWERY LLC, a New Mexico Limited Liability Company, and HENRY LACKEY, an individual, Defendants.


         This matter is before the Court on Plaintiff's Motion to Continue the Trial Date [ECF No. 89, filed on 2/8/2019] and Defendants' Motion to Strike Untimely Disclosed Experts [ECF No. 94, filed on 3/4/2019]. These motions present the question of whether Plaintiff's disclosure of two expert witnesses 90-days before trial was timely and whether the Court should grant Plaintiff's motion to continue trial from May 20, 2019 to a date in July 2019. The Court rules as described herein.

         I. BACKGROUND

         In this trademark infringement case, the Court entered a standard scheduling order on April 17, 2017. See Order Setting Pretrial Deadlines and Adopting Joint Status Report, ECF No. 27 (“Order”). The section of the Scheduling Order governing timing of disclosure of expert testimony stated: “[a]ll expert witnesses must be disclosed by the parties, even if the expert is not required to submit an expert report, ” and that “as to issues for which a party bears the burden of proof, that party shall identify in writing any expert witnesses to be used by the party at trial and provide expert reports … no later than July 17, 2017.” Id. at 2 (emphasis in original.). Discovery closed on October 16, 2017, see Id. at 1, and the Scheduling Order and its accompanying deadlines have not been modified. On February 23, 2018 the Court entered a Pretrial Order. See Pretrial Order, ECF No. 72. In that order, neither party identified expert witnesses for trial.

         On January 1, 2019, the Court reset trial to its current date, May 20, 2019. The Court attached its standard Pretrial Deadlines. See Pretrial Deadlines, Dkt. 87-1. Fifteen-days later, the Court issued its Memorandum Opinion and Order denying the parties' cross-motions for summary judgment. See Mem. Op. and Order, ECF No. 88. A few weeks later, on February 8, 2019, Plaintiff moved to continue the May 20th trial date. In that motion, Plaintiff stated that its lead counsel, Mr. G. Warren Bleeker, is set to attend a summary judgment hearing on behalf of Plaintiff in federal district court in Los Angeles on May 20th; that he is trying a separate case in California state court set for May 7, 2019 and with an approaching status conference on April 24, 2019; and that he has an international trip planned from May 31 - June 14, 2019. See Pl.'s Mot. to Continue at 2. Plaintiff represented that Mr. Bleeker is the most knowledgeable attorney to try this case since he has overseen the litigation, taken and defended depositions, appeared for mediation, and intends to try the case. See Id. at 5. Plaintiff requested a trial continuance from May 20, 2019 to July 22 or 29, 2019. See id. at 1. Defendants filed no response brief to Plaintiff's motion to continue; however, Plaintiff informs the Court that it sought Defendants' position on the motion pursuant to D.N.M.LR-Civ. 7.1(a), and that Defendants oppose the motion. See id.

         Despite the Court's July 17, 2017, expert disclosure deadline mentioned above, Plaintiff, on February 19, 2019 - exactly 90-days before the May 20, 2019 trial setting, but 19 months after July 17, 2017 - disclosed reports from two of Plaintiff's experts. See ECF Nos. 90 and 91 (certificates of services of expert reports.) Plaintiff tells the Court that it intends to introduce the testimony of its first expert, Brian M. Sowers, Principal at Applied Marketing Science, Inc., who purportedly will testify about the results of a likelihood of confusion trademark survey that resulted in a net confusion rate of 24.8% of Plaintiff's marks and Defendants' logo. See Pl.'s Resp. Br., ECF No. 96 at 3. Plaintiff also intends to introduce the testimony of its second expert, John Seabrooks, Chief Brewing Officer at Honeymoon Brewery and Principal of Integrated Brewing Services. See id. Mr. Seabrooks' supposedly will testify that Plaintiff's beer is craft beer; that many beer consumers in New Mexico purchase and drink both craft and non-craft beers, and that craft beer drinkers would consider purchasing Plaintiff's beer. See id. at 4.

         On March 3, 2019, Defendants moved to strike these two experts, arguing that their disclosures are 19 months late under the Scheduling Order and that the disclosures prejudice Defendants by forcing Defendants to reopen discovery, depose the experts, and designate rebuttal experts. Defendants therefore ask the Court to strike the experts and to maintain the May 20, 2019 trial setting.


         Motion to Continue Trial

         The Court first addresses Plaintiff's motion to continue trial from May 20, 2019 to July 22 or 29, 2019. In analyzing Plaintiff's request, the Court considers the following relevant factors:

the diligence of the party requesting the continuance; the likelihood that the continuance, if granted, would accomplish the purpose underlying the party's expressed need for the continuance; the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; the need asserted for the continuance and the harm that appellant might suffer as a result of the district court's denial of the continuance....

Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007).

         As noted earlier, Plaintiff states that Mr. Bleeker has prior business and personal commitments that will conflict with the Court's May 20, 2019 trial setting, including a summary judgment hearing on May 20th, an approaching trial of another matter on May 7, 2019 and an international trip planned from May 31 - June 14, 2019. Moreover, Plaintiff argues that Mr. Bleeker's attendance at trial, rather than that of a substitute attorney, weighs in favor of a continuance because of Mr. Bleeker's greater familiarity with the case. Even though they filed no responsive brief to Plaintiff's motion to continue, Defendants oppose the motion. In email correspondence between the parties, Defendants stated that they would not stipulate to an extension of the trial date because Defendant Henry Lackey is “ready to put this behind him.” Pl.'s Mot. to Continue, Ex. B, ECF No. 89-2.

         The Court denies Plaintiff's request for a continuance. Plaintiff's expressed need for the continuance is to allow Mr. Bleeker to fulfill his other commitments, especially his conflicting May 20th hearing on a motion for summary judgment in Los Angeles before the Honorable Christina A. Snyder, United States District Judge for the Central District of California. However, nothing in Mr. Bleeker's affidavit or Judge Snyder's order, both of which are in the record, indicate that Mr. Bleeker's attendance is essential or required at the hearing in Los Angeles, so the Court is unconvinced that another lawyer cannot attend in Mr. Bleeker's place. And with due respect to Judge Snyder, the current matter is not simply a hearing on a discrete motion, but a full-blown trial of a case that has been on this Court's docket for two years. Finally, the Court cannot perceive any harm whatsoever that Plaintiff might suffer without a continuance. Plaintiff has not stated that without more time it will be deprived of critical evidence, witnesses, or the like. Cf. United States v. West, 828 F.2d 1468, 1471 (10th Cir. 1987) (reversing district court for denying criminal defendant a one-day continuance to secure the presence at trial of the only eyewitness who might have presented directly exculpatory testimony.) Because Plaintiff's request for a continuance is predicated on Mr. Bleeker's business and personal commitments that do not warrant continuing trial, Plaintiff's motion to continue is denied.

         Expert ...

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