Motion-Secondary: Pamela Kay Squire vs Jacob Paul Nelson, Christopher John Small

On September 25, 2018 a Motion-Secondary was filed involving a dispute between and for Wrongful Death in the District Court of Goodhue County.

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25-CV-18-2431
Filed in District Court
State of Minnesota
1/14/2019 1:13 PM

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF GOODHUE FIRST JUDICIAL DISTRICT
CASE TYPE: WRONGFUL DEATH

Court File No. 25-CV-18-2431
Pamela Kay Squire, as trustee for the
next-of-kin of Cody William Lloyd Squire

Plaintiff, DEFENDANT CHRISTOPHER SMALL’S
MEMORANDUM OF LAW IN SUPPORT
vs. OF MOTION TO MODIFY THE
SCHEDULING ORDER
Jacob Paul Nelson and Christopher John
Small,

Defendant.

INTRODUCTION

Plaintiff filed this case with the Court, dismissed one of the named defendants, and

obtained a scheduling order all before properly commencing the matter against Defendant

Christopher Small pursuant to the Minnesota Rules of Civil Procedure. The deadlines

contained in the Scheduling Order would result in significant prejudice to Defendant

Christopher Small’s ability to defend this matter. As presently formulated the Scheduling

Order provides less than three months for Defendant Christopher Small to conduct written

discovery, depositions, and obtain expert witness reports. The Scheduling Order would

require Defendant Christopher Small to be prepared for trial in six months. In a wrongful

death case, this timeline is not adequate and would seriously harm Defendant Christopher

Small’s ability to properly evaluate Plaintiff’s claims and the available defenses.

The Scheduling Order was issued without a scheduling conference pursuant to

Rule 16.02 or a discovery conference pursuant to Rule 26.06. Accordingly, Defendant

Christopher Small had no opportunity to provide input or assert his interest in the
25-CV-18-2431
Filed in District Court
State of Minnesota
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formulation of the Scheduling Order. Accordingly, the Court should vacate the Scheduling

Order and order the parties to engage in a discovery conference pursuant to Rule 26.06

and submit a joint discovery plan. Once the Court receives the joint discovery plan, it

should issue an amended scheduling order in light of the assertions of parties contained

therein.

FACTUAL BACKGROUND

This case arises out of a motor vehicle accident that occurred on or about August

11, 2017 in Goodhue County, Minnesota. See the Affidavit of Brandon Meshbesher in

Support of Defendant Small’s Motion to Amend the Scheduling Order [hereinafter “Mesh.

Aff.”] at ¶ 2. At that time, Defendant Jacob Paul Nelson was operating a motor vehicle in

which Decedent, Cody William Lloyd Squire, was a passenger. Id. at ¶ 3. As Mr. Nelson

was attempting to cross Highway 52, he failed to yield to oncoming traffic and pulled out

directly in front of the tractor-trailer operated by Defendant Small—who was driving at or

below the posted speed limit and had the right-of-way. Id. Mr. Nelson’s action caused a

collision between the two vehicles and the decedent died from the injuries he sustained.

Id.

On September 25, 2018, Plaintiff filed the summons and complaint with the Court.

See Mesh. Aff., Ex. 1. At the time the action was filed, the action had not been

commenced with respect to Defendant Small within the meaning of the Minnesota Rules

of Civil Procedure. See Mesh. Aff. at ¶ 6. Defendant Small is unaware of the date on

which Plaintiff commenced the action against Defendant Nelson. Upon information and

belief, the action was commenced with respect to Defendant Nelson prior to its filing with

the Court on September 25, 2018. Id. at ¶ 4. On October 9, 2018, Defendant Nelson’s
25-CV-18-2431
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Answer was filed with the Court. Id. at ¶ 6, Ex. 2. Defendant Nelson’s Answer is dated

August 31, 2018. Mesh. Aff., Ex. 2. The Court dismissed Defendant Nelson on October

10, 2018 pursuant to the stipulation of Plaintiff and Defendant Nelson. Id. at Ex. 3.

On December 11, 2018, the Court issued a Scheduling Order. Id. at Ex. 4. The

Scheduling Order provides, in pertinent part, that discovery shall be completed by March

29, 2019; all dispositive motion shall be heard by April 30, 2019; and the trial is scheduled

to commence on July 29, 2019. Id. At the time the Scheduling Order was issued,

Defendant Small had not yet been served with the summons and complaint. Id. at ¶ 9.

Accordingly, Plaintiff and Defendant Small had no opportunity to meet and confer

regarding the sequencing of the case and did not submit a joint discovery plan. Id. at 10.

Defendant Small was never consulted regarding the deadlines imposed in the Scheduling

Order. Id.

Defendant Small was served with the summons and complaint on December 12,

2018. Id. at ¶ 9. He obtained counsel and submitted his answer on December 20, 2018.

Id. at Ex. 5. At this time, Defendant Small has not been able to commence any discovery

and has just begun to evaluate Plaintiff’s claims and available defenses. Id. at ¶ 12.

ARGUMENT

In Minnesota, “[a] civil action is commenced against each defendant when the

summons is served upon that defendant . . . .” Minn. R. Civ. P. 3.01(a). A summons and

complaint must be personally served upon an individual or may be served by leaving a

copy at his usual place of abode with a person of suitable age and discretion. Minn. R.

Civ. P. 3.02, 4.03(a).
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Filed in District Court
State of Minnesota
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Generally, the Court “may, and upon written request of any party with notice to all

parties, shall, after consulting with the attorneys for the parties and any unrepresented

parties, . . . enter a scheduling order . . . .” Minn. R. Civ. P. 16.02 (emphasis added).

Additionally, the rules of civil procedure require that the parties “confer as soon as

practicable” and submit a discovery plan to the Court outlining: (1) any changes that may

be need to the timing for initial disclosures; (2) the scope and time needed for discovery;

(3) issues regarding the disclosure and discovery of electronically stored information; (4)

issues concerning claims of privilege; (5) any changes to the limitations on discovery

imposed by the Rules of Civil Procedure or local rules; and (6) “any other order that the

court should issue under Rule 26.03 or under Rule 16.02 and .03.” Minn. R. Civ. P.

26.06(a)–(c).

Courts will modify a scheduling order to prevent manifest injustice upon a showing

of good cause. See Minn. R. Civ. P. 16.02, 16.05. When deciding whether good cause

has been shown, courts consider the following factors: (1) the degree of prejudice to the

parties seeking and opposing modification; (2) the impact of the modification; and (3) the

degree of willfulness, bad faith, or inexcusable neglect on the party seeking information.

Cotroneo v. Pilney, 343 N.W.2d 645, 649 (Minn. 1984). Whether to modify a scheduling

order is within the sound discretion of the court. See generally Warrick v. Giron, 290

N.W.2d 166, 169 (Minn. 1980). In this case, all of the Cotroneo factors weigh in favor of

amending the Scheduling Order.

As an initial matter, the Scheduling Order was issued without any input from

Defendant Small and before the parties had the opportunity to complete a joint discovery

plan as required pursuant to Rule 26.06. As outlined above, Plaintiff filed this matter with
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the Court several months before commencing the action against Defendant Small within

the meaning of the applicable rules of civil procedure. Defendant Small was not properly

served until December 12, 2018—after the Scheduling Order had been issued. On this

basis alone, the Scheduling Order should be vacated and the Court should order the

parties to confer as required by Rule 26.06 and submit a joint discovery plan.

As currently contemplated, the deadlines imposed by the Scheduling Order will

result in substantial prejudice to Defendant Small. This is a wrongful death case. As such,

significant written discovery, depositions of the parties and available witnesses, and

expert discovery will be necessary to establish both liability and damages. The

Scheduling Order provides approximately three months to complete this extensive

discovery. This amount of time is insufficient given the nature of this case. In order to

complete discovery the parties will have to work with their schedule, the schedule of their

counsel, and the schedules of their retained experts and any third party witnesses. This

deadline must be extend to avoid substantial prejudice to Defendant Small in defending

this action.

The impact of the modification is slight. The case will proceed to discovery and

Plaintiff will not be prejudiced by the extension, as Plaintiff apparently already resolved

this matter with respect to one Defendant. Vacating the Scheduling Order to allow the

parties to comply with the requirements of the Minnesota Rules of Civil Procedure cannot

adversely impact the litigation or prejudice Plaintiff.

Finally, there has been no bad faith or inexcusable neglect on the part of Defendant

Small. Defendant Small timely responded once he was properly served and, at the same

time, moved to amend the Scheduling Order. The Scheduling Order was issued prior to
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the commencement of the action with respect to Defendant Small. It is difficult to imagine

how he could have inexcusably neglected a lawsuit before he was a party to it. The only

inexcusable neglect in this case is Plaintiff’s failure to properly commence this matter with

respect to Defendant Small before filing the case. Defendant Small should be punished

due to Plaintiff’s failure to properly commence the lawsuit. Further, Plaintiff should be

allowed to strategically stagger the commencement of an action so as to provide one

party less time to conduct discovery and prepare for trial. This result would be manifestly

unjust.

Accordingly, the Court should grant Defendant Small’s motion to amend the

Scheduling Order to avoid significant prejudice. Defendant Small will not be able to

conduct adequate discovery in the time provided by the Scheduling Order and cannot

adequately evaluate Plaintiff’s claims and available defenses in time for the trial or

dispositive motion deadlines. Defendant Small did not cause the need for this extension,

as Plaintiff failed to properly commence the action with respect to Defendant Small at the

time the matter was filed with the Court.

CONCLUSION

Based upon the foregoing, Defendant Small respectfully requests that the Court

vacate the December 11, 2018 Scheduling Order, order the parties to confer and submit

a discovery plan pursuant to Minn. R. Civ. P. 26.06, and issue an amended Scheduling

Order in light of the dates proposed by the parties in the joint discovery plan.
25-CV-18-2431
Filed in District Court
State of Minnesota
1/14/2019 1:13 PM

Dated: January 14, 2019 Lind, Jensen, Sullivan & Peterson
A Professional Association

s/Brandon D. Meshbesher ____________
Brian A. Wood #141690
Brandon D. Meshbesher #0397582
Attorneys for Defendant Westfield Insurance
1300 AT&T Tower
901 Marquette Avenue South
Minneapolis, Minnesota 55402
(612) 333-3637
Brian.wood@lindjensen.com
Brandon.meshbesher@lindjensen.com

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Motion-Secondary: Pamela Kay Squire vs Jacob Paul Nelson, Christopher John Small

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