Motion to Extend Discovery Cut-Off Date in EDWARD DEDITCH VS UBER TECHNOLOGIES, INC.| Trellis.Law

On November 17, 2021 a Trial Materials was filed involving a dispute between Deditch, Edward, and Cox, Billie Jo, Lyft, Inc., Portier, Llc., Raiser, Llc., Uber Technologies, Inc., for NEGLIGENCE in the District Court of Summit County.

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CV-2021-11-3644 MICHAEL, KATHRYN 06/23/2023 09:13:14 AM BRIO Page 1 of 16

IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO

EDWARD DEDITCH, ) CASE NO.: CV-2021-11-3644
)
Plaintiff, ) JUDGE KATHRYN MICHAEL
)
v. ) DEFENDANTS UBER TECHNOLOGIES,
) INC., RASIER, LLC, AND PORTIER LLC’S
UBER TECHNOLOGIES, INC., et ) BRIEF IN OPPOSITION TO PLAINTIFF’S
al., ) MOTION TO EXTEND EXPERT CUTOFF,
) FINAL PRETRIAL AND TRIAL DATES,
Defendants. ) TO REOPEN DISCOVERY, AND FOR AN
) EXTENSION OF TIME TO RESPOND TO
) THE PENDING DISPOSITIVE MOTIONS

Defendants, Uber Technologies, Inc. (“UTI”), Rasier, LLC (“Rasier”), and Portier, LLC

(“Portier”) (collectively, “Defendants”), respectfully request the Court deny Plaintiff’s Motion to

upend this Court’s case management order and trial schedule as Plaintiff has not complied with

Civ.R. 56(F), he has not provided sufficient reasons as to why he cannot respond to Defendants’

Motion for Summary Judgment, and Plaintiff should not be rewarded for his continued dilatory

tactics. For the reasons set forth more fully below, Plaintiff’s Motion should be denied.

I. INTRODUCTION

A simple review of the procedural history of this case, coupled with the repeated

examples of Plaintiff’s gamesmanship, dilatory tactics, and disregard of the Court’s Case

Management Orders, should result in the denial of Plaintiff’s Motion. On November 17, 2021,

Plaintiff filed his Complaint in this Court. (See Docket). On June 23, 2022, this Court entered the

following case management schedule:

12/27/22 Plaintiff to disclose expert witnesses

1/9/23 Defendants to disclose expert witnesses

1/30/23 Fact discovery cutoff

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2/20/23 Dispositive motion cutoff

5/9/23 Final pre-trial conference

5/25/23 Trial date1

Plaintiff’s expert disclosure deadline of December 27, 2022 came and went, and Plaintiff

did not disclose any experts or make a request for an extension of his expert disclosure deadline

until the filing of this present Motion—7 months after the deadline. (See Plaintiff’s Motion and

Ex. A.) Additionally, the January 30, 2023 fact discovery cutoff was forced to be extended

because Plaintiff waited until 4:23 p.m. on January 30, 2023—the day of the fact discovery

cutoff and over 14 months after filing his Complaint—to issue each Defendant Interrogatories,

Requests for Production, and Requests for Admissions.2

Plaintiff’s failure to issue basic written discovery until the day of the fact discovery cutoff

deadline required the parties to seek an extension of the dispositive motion deadline as

Defendants’ responses to the discovery requests came due on February 27, 2023—7 days after

the dispositive motion deadline set forth in this Court’s June 23, 2022 Case Management Order.

Civ.R. 33 and 34; (See Exs. A and B.) The Court granted the parties an extension and entered a

second Case Management Order on February 13, 2023 setting forth the following:

5/19/23 Dispositive motion cutoff

8/15/23 Final pre-trial conference

8/31/23 Trial date3

In compliance with the Court’s second Case Management Order, UTI, Rasier, and Portier

continued to prepare their case for a dispositive motion and filed their Motion for Summary

Judgment by the May 19, 2023 deadline. (See Docket). Defendants only became aware of

1
See the 6/23/22 Case Management Order attached as Exhibit “A”.
2
See 1/30/23 Emails from Plaintiff’s Counsel attached as Exhibit “B”.
3
See the 2/13/23 Case Management Order attached as Exhibit “C”.

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Plaintiff’s intention/request to re-open discovery and extend the time to respond to UTI, Rasier,

and Portier’s Motion for Summary Judgment when Plaintiff filed this Motion on June 15,

2023—1 day before his brief in opposition was due. See Civ.R. 6(C).

II. LAW AND ARGUMENT

A. Plaintiff’s Motion Should Be Denied Because It Fails To Conform To The
Requirements Set Forth In Civ.R. 56(F).

Defendants acknowledge that a party may request a continuance of a party’s deadline to

respond to a motion for summary judgment “should it appear from the affidavits of a party

opposing the motion for summary judgment that the party cannot for sufficient reasons state to

present by affidavit facts essential to justify the party’s opposition.” Civ.R. 56(F). A party,

however, cannot simply request additional time to respond to a pending dispositive motion. Id.

“To obtain a continuance under Civ.R. 56(F), a party must file an affidavit that sets forth why it

is unable to present sufficient facts to rebut a motion for summary judgment.” King v. Rubber

City Arches, LLC., 9th Dist. Summit No. 25498, 2011-Ohio-2240, ¶ 35 (emphasis added). The

party requesting the Civ.R. 56(F) continuance also has the burden of showing a factual basis as

to why he is unable to present sufficient evidence to overcome the summary judgment motion

without a continuance. McPherson v. Goodyear Tire & Rubber Co., 9th Dist. Summit No.

21499, 2003-Ohio-7190, ¶ 15. “The affidavit requirement is no mere trifle.” Thomas v.

Bauschlinger, 9th Dist. Summit No. 27240, 2015-Ohio-281, ¶ 10.

Here, Plaintiff has failed to provide an affidavit that sets forth why he is unable to present

sufficient facts to rebut a motion for summary judgment. Plaintiff’s omnibus Motion to re-open

discovery, extend expert disclosure deadlines, and extend final pretrial/trial dates is entirely

improper and fails to meet the basic requirements set forth in Civ.R. 56(F). For this reason alone,

Plaintiff’s Motion should be denied.

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B. There Are No Reasons Why Plaintiff Is Unable To Present Sufficient Facts
To Rebut Defendants’ Motion For Summary Judgment.

Notwithstanding Plaintiff’s failure to comply with Civ.R. 56(F), Plaintiff’s Motion still

fails because he does not set forth sufficient reasons why he is unable to present facts to rebut

UTI, Raiser, and Portier’s Motion for Summary Judgment.

As an initial matter, nearly all of Plaintiff’s arguments for re-opening discovery and

extending his time to respond to the pending dispositive motions pertain to Lyft—not UTI,

Rasier, or Portier. (See Motion.) Plaintiff’s only mention of UTI, Rasier, and Portier centers

around his request to be able to now depose Erin O’Keefe, the individual who submitted an

Affidavit in support of UTI, Rasier, and Portier’s Motion for Summary Judgment. (Id.) Ignoring

the fact that affidavits are commonly used to support dispositive motions and are expressly

contemplated by the Ohio Rules of Civil Procedure (Civ.R. 56(A-C)) so that Plaintiff should not

have been surprised by Ms. O’Keefe’s Affidavit, a simple review of the Affidavit demonstrates

there is nothing novel or unusual that would justify the need to re-open discovery, extend expert

disclosure deadlines, or continue the final pre-trial and trial dates for a third time.4

Ms. O’Keefe’s Affidavit simply provided background information about Defendants and

authenticated the documents UTI, Rasier, and Portier relied upon in support of their Motion for

Summary Judgment, and more importantly, are documents previously produced in discovery.

(See sealed Affidavit.) Ultimately, the Affidavit corroborated what Plaintiff already knew from

UTI, Rasier, and Portier’s document production—that co-defendant, Billie Jo Cox (“Cox”), was

not utilizing the Uber App the moments leading up to the subject accident. (Id.)

4
See the Court docket for Ms. O’Keefe’s Affidavit as it was filed under seal in accordance with this Court’s
Protective Order.

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The Court should also be aware that Plaintiff had every opportunity to depose Ms.

O’Keefe—who would have been UTI, Rasier, and Portier’s Civ.R. 30(B)(5) corporate

representative—but he chose not to. On January 30, 2023, the deadline this Court set for fact

discovery to be completed, Plaintiff’s counsel requested for the first time the Civ.R. 30(B)(5)

deposition of UTI, Rasier, and Portier. (See Ex. B.) On February 10, 2023, counsel for UTI,

Rasier, and Portier sent Plaintiff’s counsel an email requesting a list of proposed topics for the

Civ.R. 30(B)(5) deposition.5 Not only did Plaintiff’s counsel never provide proposed topics, he

never served a notice of deposition or took any steps to move forward with the Civ.R. 30(B)(5)

deposition. The notion discovery should be re-opened so Plaintiff can now take Ms. O’Keefe’s

deposition is disingenuous, at best, and would only further delay these proceedings and prejudice

Defendants.

Next, Plaintiff’s argument that the Court’s entire litigation schedule should be upended so

he can depose Cox for a second time is misguided and not a sufficient reason to grant Plaintiff an

extension pursuant to Civ.R. 56(F). Plaintiff only needs to create a genuine issue of material fact

to overcome a motion for summary judgment. Civ.R. 56(C). A second deposition of Cox to

supposedly explore “inconsistencies” between her previous testimony and documents Lyft

produced is unnecessary to overcome a dispositive motion, let alone a dispositive motion filed by

UTI, Rasier, and Portier. If anything, to the extent Plaintiff is correct, Cox’s alleged inconsistent

testimony can be used to combat Lyft’s Motion for Summary Judgment and no further deposition

of Cox would be necessary.

Finally, UTI, Rasier, and Portier’s primary argument in their Motion for Summary

Judgment is a legal issue to be decided by the Court—that they do not owe a duty under Ohio

law to prevent a driver from accessing the Uber App while he/she is operating a vehicle. (See
5
See 2/10/23 Email attached as Exhibit “D”.

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Defendants’ MSJ.) The additional discovery Plaintiff supposedly needs has nothing to do with

addressing any of the legal issues to be decided by this Court in UTI, Rasier, and Portier’s

Motion for Summary Judgment. Ultimately, even if the Court ignores Plaintiff’s failure to

comply with the requirements set forth in Civ.R. 56(F), there is still no justification for re-

opening discovery, continuing the final pre-trial conference and trial dates, and extending his

time to respond to UTI, Rasier, and Portier’s Motion for Summary Judgment.

C. Plaintiff’s Request For New Expert Disclosure Deadlines And Final
Pretrial/Trial Dates Should Be Denied.

Plaintiff cannot dispute that he had until December 27, 2022 to disclose experts and he

chose not to. He also had multiple attempts to request a new expert disclosure deadline prior to

UTI, Rasier, and Portier filing their Motion for Summary Judgment by the May 19, 2023

deadline. Plaintiff’s attempt now, at the eleventh hour, to disrupt this Court’s case management

schedule and for a second time continue the final pretrial and trial dates is unwarranted and will

cause severe prejudice to UTI, Rasier, and Portier as Plaintiff now has the roadmap to try to

defeat Defendants’ Motion for Summary Judgment. UTI, Rasier, and Portier should not be

penalized for complying with this Court’s deadlines and for Plaintiff’s decision not to conduct

the discovery he now requests. UTI, Rasier, and Portier have fully prepared this case and are

ready to try this case on August 31, 2023 should it become necessary if this Court denies their

Motion for Summary Judgment. Plaintiff’s Motion—filed one day prior to his deadline to

respond to the pending dispositive motions—does not comply with Civ.R. 56(F), is not made in

good faith, and should be denied.

III. CONCLUSION

For the above-mentioned reasons, Defendants Uber Technologies, Inc., Rasier, LLC, and

Portier, LLC respectfully request the Court deny Plaintiff’s Motion. Since Plaintiff is well

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beyond his deadline to file his brief in opposition to Defendants’ dispositive motions, the Court

should also grant the pending dispositive motions as no brief in opposition has been filed.

Respectfully submitted,

/s/Robert D. Boroff
ROBERT D. BOROFF 90091866)
MATTHEW A. SMARTNICK (0096932)
Gallagher Sharp| LLP
1215 Superior Avenue, 7th Floor
Cleveland, OH 44114
(216) 241-1608 Telephone
(216) 241-1608 Facsimile
E-Mail: rboroff@gallaghersharp.com
msmartnick@gallaghersharp.com
Attorneys for Defendants Uber Technologies,
Inc., Rasier, LLC, and Portier, LLC

CERTIFICATE OF SERVICE

I hereby certify that on June 23, 2023 the foregoing was filed electronically. Notice of
this filing will be sent by operation of the Court’s electronic filing system to all parties indicated
on the electronic filing receipt. All other parties will be served by regular U.S. Mail. Parties may
access this filing through the Court’s system.

/s/ Robert D. Boroff
ROBERT D. BOROFF 90091866)
MATTHEW A. SMARTNICK (0096932)
Gallagher Sharp| LLP
Attorneys for Defendants Uber Technologies,
Inc., Rasier, LLC, and Portier, LLC

Sandra Kurt, Summit County Clerk of Courts
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EXHIBIT "A"

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IN THE COURT OF COMMON PLEAS

COUNTY OF SUMMIT

EDWARD DEDITCH ) CASE NO. CV-2021-11-3644
)
Plaintiff ) JUDGE KATHRYN MICHAEL
-vs- )
)
UBER TECHNOLOGIES, INC. ) CASE MANAGEMENT ORDER
)
Defendant )
- - -

TRIAL AND FINAL PRE-TRIAL
1. DATES
a. The scheduled JURY TRIAL date for this case is May 25, 2023 at 1:00 p.m.
**Pursuant to Civ. R. 41(B)(1), the Court is hereby providing notice to all
parties herein that failure to appear at the above trial date shall result in a
dismissal with prejudice.**
b. The scheduled FINAL PRE-TRIAL date for this case is May 9, 2023 at 11:00
a.m. and will take place via Zoom. All counsel shall be present and clients shall
be immediately available to join at the Court’s request.
c. A TELEPHONE STATUS CONFERENCE is set for February 7, 2023 at
9:00 a.m.
d. A TELEPHONE STATUS CONFERENCE is set for November 1, 2022 at
9:00 a.m.
e. A TELEPHONE STATUS CONFERENCE is set for August 23, 2022 at
9:00 a.m.

THE PARTIES SHALL PARTICIPATE IN THE ABOVE TELEPHONE STATUS
CONFERENCES BY CALLING THE COURT’S CONFERENCE BRIDGE LINE
USING THE FOLLOWING PROCEDURE:

1. Call 330-926-2552.
2. When prompted, enter the conference number “10450” followed by the # key.
3. Say your name and press the # key.
4. You will then be placed into the conference call.

2. TRIAL PROCEDURE TO NOTE
a. Jury trials begin with voir dire held in the Ceremonial Courtroom at 1:00 p.m.
b. Trials will recess on Wednesdays due to criminal call day.
c. If the case is set for a non-jury trial, the trial will be assigned to Magistrate Erica
Voorhees, unless the Court orders otherwise.

EVIDENCE AND TRIAL DOCUMENTS

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EXHIBIT "A"

1. All evidence and/or exhibits that the parties intend to offer at trial shall be marked for
identification purposes fourteen (14) days prior to trial and a list of same shall be given to
opposing counsel prior to the Final Pre-Trial.
2. A separate photocopy of reproducible exhibits shall be given to the Court at the
commencement of trial.
3. A list of intended witnesses for trial shall be provided to opposing counsel. Any witness
not on the list shall not be permitted to testify at trial. However, the parties may call
rebuttal witnesses for those witnesses whose testimony could not have been reasonably
anticipated.
4. Proposed Jury Instructions, Interrogatories, Transcripts of Deposition-Testimony to be
presented at trial (with objections marked), Stipulations and Trial Briefs shall be filed
fourteen (14) days prior to trial.
a. Proposed verdict forms must be submitted to the Court as a part of these
documents.
b. Counsel shall email the jury instructions and interrogatories that have been agreed
upon by all counsel (Word format) to Magistrate Erica Voorhees
evoorhees@cpcourt.summitoh.net. Additionally, counsel shall email the jury
instructions and interrogatories that have not been agreed upon by all counsel
(Word format) in the same manner, marked as “not agreed upon by all counsel.”
5. In all jury cases, counsel shall confer and agree upon a short statement of the case to be
read by the Court to the jury during jury selection. This statement shall be provided three
(3) working days prior to the beginning of the trial.

DISCOVERY
1. Either party shall notify the Court if any issues arise regarding the exchange of
discovery. The Court will then schedule an in-person discovery hearing with the judge.

2. EXPERT WITNESSES

a. The discovery cut-off date is JANUARY 30, 2023.
b. The Plaintiff shall identify expert witnesses and provide expert reports to all
counsel on DECEMBER 27, 2022. The Defendant shall identify expert
witnesses and provide expert reports to all counsel on JANUARY 9, 2023.
c. The parties shall supplement their expert witness lists by JANUARY 23,
2023.
d. Any rebuttal witnesses shall be named no later than FEBRUARY 20, 2023.
e. ALL EXPERT WITNESSES ARE TO BE IDENTIFIED BY NOTICE AS
FILED WITH THE COURT.

MOTION PRACTICE
The Court will only consider motions made in writing and filed appropriately with the Clerk
of Courts. The Court will not consider oral motions.
Pursuant to Civ. R. 6, the following timelines will govern the filing of motions, responses to
the motions, and replies to responses. Any deviations of these timelines must be requested by filed
motion and are permitted only by leave of the Court. Failure to comply with these timetables may
result in the denial of the motion for untimeliness.
1. Motions of a general nature
a. Non-moving parties shall respond within fourteen (14) days of the filing of the
motions.
b. Moving parties may reply to the non-moving party’s response within seven (7) days.
c. Further responses or replies are permitted only with permission of the Court.
2. Dispositive motions
a. DISPOSITIVE MOTION DEADLINE: FEBRUARY 20, 2023

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EXHIBIT "A"

b. Responses to motions for summary judgment shall be filed within twenty-eight (28)
days of the original motion. Replies may be filed within seven (7) days of the response.
3. Motions made in preparation of a hearing to be held (other than trial)
a. Must be filed fourteen (14) days prior to the beginning of the hearing.
b. Responses may be filed within seven (7) days of the original motion.
No replies will be permitted.
4. Motions made in preparation of trial, including Motions in Limine
a. Must be filed twenty-eight (28) days prior to the beginning of the trial.
b. Responses may be filed within seven (7) days of the original motion.
No replies will be permitted.
**Unless otherwise ordered, the Court considers motions to be at issue as soon as the non-
moving party or party files responsive briefs, or fourteen (14) days after the motion is filed,
whichever is sooner.

IT IS SO ORDERED.

JUDGE KATHRYN MICHAEL

CC: ATTORNEY JAMES E. BOULAS
ATTORNEY MATTHEW SMARTNICK
ATTORNEY ROBERT D. BOROFF
ATTORNEY KRISTIN L. WEDELL
ATTORNEY ANDREW H. ISAKOFF
ATTORNEY EVAN J. PALIK

CAC

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EXHIBIT "B"

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EXHIBIT "B"

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EXHIBIT "B"

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EXHIBIT "B"

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EXHIBIT "C"

IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO

EDWARD DEDITCH ) CASE NO. CV-2021-11-3644
)
Plaintiff, ) JUDGE KATHRYN MICHAEL
)
v. )
) ORDER
UBER TECHNOLOGIES, INC., et al. )
)
Defendants. )

For good cause shown, the Parties’ Joint Motion to Extend the Dispositive Motion Deadline,

Final Pre-Trial, and Trial Date ninety (90) days is hereby granted. The Court shall enter the

following new dates and deadlines:

1) May 19, 2023 - Dispositive Motion Deadline

2) August 15, 2023 at 10:00am - Final Pre-Trial

3) August 31, 2023 at 1:00pm - Trial Date

IT IS SO ORDERED.

JUDGE KATHRYN MICHAEL

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EXHIBIT "D"

Sandra Kurt, Summit County Clerk of Courts

Case Info

Judge

KATHRYN MICHAEL Track Judge’s New Case

Case No.

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Document Filed Date

June 23, 2023

Case Filing Date

November 17, 2021

County

Parties

BOROFF, ROBERT Attorney for the Defendant
BOULAS, JAMES Attorney for the Plaintiff
COX, BILLIE JO Defendant
DEDITCH, EDWARD Plaintiff
ISAKOFF, ANDREW Attorney for the Defendant
LYFT, INC. Defendant
PORTIER, LLC. Defendant
RAISER, LLC. Defendant
RININGER, MAGISTRATE Otherparties
UBER TECHNOLOGIES, INC. Defendant
WEDELL, KRISTIN Attorney for the Defendant
Shaka Sadler Attorneys for Defendants

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Trial Materials: EDWARD DEDITCH VS UBER TECHNOLOGIES, INC.

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