Hubchik v. Owners Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-01359-DDD-KAS
JOSEPHINE HUBCHIK, an Individual,
Plaintiff,
v.
OWNERS INSURANCE COMPANY, a Foreign Corporation,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Motion to Amend Scheduling Order
to Reopen Limited Discovery, Supplement the Expert Report of Abigaile Bergum,
and File 702 Motion re: Stephen Plitt [#107] (the “Motion”). Defendant filed a Response
[#118] in opposition to the Motion [#107], and Plaintiff filed a Reply [#121]. The Court has
reviewed the briefs, the entire case file, and the applicable law. For the reasons set forth
below, the Motion [#107] is GRANTED in part and DENIED in part.
I. Background
For purposes of resolving this dispute, the discovery cutoff in this case was July
22, 2024. Minute Order [#37]; see also Minute Order [#72] (extending the discovery
deadline to September 13, 2024, for the sole purpose of taking a deposition unrelated to
the present dispute). One month later, on August 23, 2024, the parties filed seven Fed.
R. Evid. 702 motions. See [#73, #74, #75, #76, #78, #81, #83]. At a Discovery Hearing
held that same day, the Court granted the entirety of Defendant’s Motion to Complete
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Two Items of Discovery Out of Time [#57], including setting a deadline of September 30,
2024 “to supplement disclosures, including expert reports.” Minutes [#80].
On September 17, 2024, Defendant’s adjuster, Tanya Churchwell (“Churchwell”),
sent a letter to Plaintiff’s attorneys denying all coverage for Plaintiff’s insurance claim
based on (1) assertions of “noncooperation” due to Plaintiff not attending a psychological
examination, and (2) purported violation of the insurance Policy’s “fraud” clause. Pl.’s Ex.
1 [#107-1]. On September 20, 2024, Defendant filed a Motion for Leave to File Amended
Answer to Plaintiff’s Complaint [#95] to assert new defenses of failure-to-cooperate and
fraud. On September 30, 2024, Defendant timely disclosed a supplemental report from
its insurance expert, Stephen Plitt (“Plitt”). Pl.’s Ex. 2 [#107-2]. The report generally
discusses his opinions regarding industry standards relating to Plaintiff’s potential breach
of the Policy’s conditions, including the failure-to-cooperate and fraud provisions. See id.
Plaintiff filed the present Motion [#107] on October 8, 2024, seeking to conduct
discovery into these new developments, which had occurred after the discovery cut-off.
Specifically, Plaintiff asks the Court for the following relief: (1) leave to reopen the
depositions of Defendant’s adjuster Ms. Churchwell and the Rule 30(b)(6) deposition of
Defendant, limited to two hours each, to obtain testimony about Defendant’s post-
discovery cut-off conduct and its new denial of Plaintiff’s UIM claim; (2) permission to
supplement the report of Abigaile Bergum (“Bergum”), 1 Plaintiff’s insurance industry
standards expert, following those two depositions; and (3) leave to file an additional Rule
1 The Court notes that the spelling of Ms. Bergum’s first name is inconsistent in the briefs,
sometimes spelled as “Abigaile” and sometimes spelled as “Abigail.” See, e.g., Motion [#107] at
1, 3, 6-8.
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702 motion pertaining to Defendant’s expert Mr. Plitt’s new supplemental report disclosed
on September 30, 2025, after the deadline to file Rule 702 motions. Motion [#107] at 2-3.
Since the Motion [#107] was filed, several further developments have occurred.
First, on December 17, 2024, Defendant was granted leave to amend its Answer to
regarding its failure-to-cooperate and fraud defenses. Order [#124]; Am. Answer [#125].
In granting the request, the Court noted: “To the extent the amendments’ timing
necessitates limited discovery in connection with Defendant’s affirmative defenses,
Plaintiff may seek leave to conduct that discovery.” Order [#124] at 10. Second, on
January 28, 2025, Plaintiff was permitted leave to amend her Complaint “to add a
common law bad faith claim premised on Defendant’s conduct related to the May 8, 2024
letter,” which relates to Defendant’s failure-to-cooperate defense. Order [#127] at 3. In
recommending that this portion of Plaintiff’s requested amendments be granted, the Court
stated:
Thus, there was no opportunity for either side to conduct any potentially
necessary discovery into this claim before Plaintiff filed this Motion [#38] [on
May 8, 2024]. In other words, this part of the claim was new to both Plaintiff
and Defendant and could not have previously been addressed by either side
through either fact discovery or expert discovery. To the extent either side
believes that limited additional discovery is required based on this claim, the
parties may individually or jointly make a prompt request to the Court by
way of a written motion, which, if good cause is shown, will cure any
possible prejudice.
Recommendation [#119] at 12. Third, also on January 28, 2025, the District Judge issued
rulings on the pending Rule 702 motions, which, in relevant part, mostly denied the
parties’ cross-motions to strike each other’s experts, i.e., Plaintiff’s expert Ms. Bergum
and Defendant’s expert Mr. Plitt, on insurance industry customs and their application to
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this case. Order [#128] at 10-12, 17-18.
II. Analysis
The Court first addresses Plaintiff’s request for leave to reopen the deposition of
Defendant’s adjuster Ms. Churchwell and the Rule 30(b)(6) deposition of Defendant,
limited to two hours each, to obtain testimony about Defendant’s post-discovery cut-off
conduct and its new denial of Plaintiff’s UIM claim based on purported noncooperation
and fraud. The Court then separately addresses Plaintiff’s request for permission to
supplement the report of Ms. Bergum, Plaintiff’s insurance industry standards expert,
following those two depositions. Finally, the Court addresses Plaintiff’s request for leave
to file an additional Rule 702 motion pertaining to Defendant’s expert Mr. Plitt’s new
supplemental report.
A. 	Extension of Discovery Deadline
1. 	Good Cause
A scheduling order “may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). “In practice, this standard requires the movant to show
the scheduling deadlines cannot be met despite the movant’s diligent efforts.” Tesone v.
Empire Mktg. Strategies, 942 F.3d 979, 988 (10th Cir. 2019) (internal quotations and
citations omitted). The “good cause” standard “obligates the moving party to provide an
adequate explanation for any delay.” Id. (internal quotations and citation omitted).
Trial courts have “considerable discretion” in determining what satisfies “good
cause.” Id. (citing 3 JAMES WM . MOORE , M OORE 'S FEDERAL P RACTICE -CIVIL § 16.14[1][b]
(3d ed. 2019)). “Good cause is likely to be found when the moving party has been
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generally diligent, the need for more time was neither foreseeable nor its fault, and
refusing to grant the continuance would create a substantial risk of unfairness to that
party.” Id. (internal quotations, modification, and citation omitted). Trial courts must also
consider the “possible prejudice to the party opposing the modification.” Id. (citing Ingle
v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002); Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“Although the existence or degree of prejudice to
the party opposing the modification might supply additional reasons to deny a motion, the
focus of the inquiry is upon the moving party’s reasons for seeking modification.”)).
Finally, an attorney’s “mere failure” to “proceed promptly with the normal processes of
discovery and trial preparation” does not support good cause. Id. (citing Dag Enters., Inc.
v. Exxon Mobil Corp., 226 F.R.D. 95, 105 (D.D.C. 2005)).
“Discovery plays an important role in our adversarial system: full development of
the facts surrounding a matter furthers ‘the purpose discovery is intended to serve—
advancing the quest for truth.’” Trujillo v. Bd of Educ. of Albuquerque Pub. Schs., Nos.
Civ. 02-1146 JB/LFG, Civ. 03-1185 JB/LFG, 2007 WL 1306560, at *2 (D.N.M. Mar. 12,
2007) (quoting Taylor v. Illinois, 484 U.S. 400, 430 (1988)). Additionally, discovery
requires “[a] spirit of cooperation between opposing counsel[,]” which “generally results
in 	the 	filing 	of 	fewer 	discovery 	motions, 	reduction 	in 	the 	costs 	of 	litigation, 	and
conservation of limited judicial resources.” Mann v. Fernandez, 615 F. Supp. 2d 1277,
1284 (D.N.M. 2009). “Determining whether to reopen discovery requires striking a
delicate balance between the interests of efficiency and accountability on the one hand,
and a recognition of the importance of discovery for resolving cases on the merits on the
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other.” Id.
“Whether to extend or reopen discovery is committed to the sound discretion of the
trial court[.]” Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). The Tenth Circuit
has identified six factors for courts to consider when deciding whether to reopen
discovery: (1) whether trial is imminent; (2) whether the request is opposed; (3) whether
the non-moving party would be prejudiced; (4) whether the moving party was diligent in
obtaining discovery within the guidelines established by the court; (5) the foreseeability
of the need for additional discovery in light of the time allowed for discovery by the district
court; and (6) the likelihood that the discovery will lead to relevant evidence. Id.
Here, the parties agree that the first factor weighs in favor of allowing discovery to
be reopened. Motion [#107] at 5; Response [#118] at 12. No trial date is set, and neither
is a Final Pretrial Conference or Trial Preparation Conference. Allowing a limited
extension of the discovery cut-off is unlikely to significantly impact trial dates. Thus, this
factor weighs in favor of allowing discovery to be reopened.
The second factor weighs against reopening discovery. Defendant opposes
Plaintiff’s requests based on its evaluation of the remaining factors below, including that
allowing further discovery would “impose additional, unnecessary costs on [Defendant]
and its employees” and that Plaintiff was purportedly not diligent in making her request.
Response [#118] at 10.
The third factor weighs in favor of allowing the reopening of discovery. The only
prejudice to which Defendant points here is an increased expenditure of time and costs.
Response [#118] at 7, 10. Defendant calls these expenditures “unnecessary,” but that is
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for the Court to decide in its adjudication of the present Motion [#107]. Id. at 10. Although
any expenditure of time and costs may be deemed to have some prejudicial effect, the
normal expenditure of time and costs in litigation is not unduly prejudicial.
The fourth factor—whether Plaintiff, as the movant, was diligent in obtaining
discovery within the Court’s set deadlines—also weighs in favor of reopening discovery.
The discovery deadline expired on July 22, 2024. Minute Order [#37]. Defendant denied
Plaintiff’s UIM claim on September 17, 2024, through a letter sent by Defendant’s
adjuster, Ms. Churchwell. Pl.’s Ex. 1 [#107-1]. Defendant’s request to amend its answer
to add its failure-to-cooperate and fraud defenses was granted on December 17, 2024.
Order [#124]; Am. Answer [#125]. Given that these events occurred after the close of
discovery, the Court finds that Plaintiff did not fail to be diligent by not seeking discovery
on these events prior to July 22, 2024.
The fifth factor—the foreseeability of the need for additional discovery in relation
to the time allowed for discovery—also weighs in favor of reopening discovery. Through
her counsel, Plaintiff concedes that she “suspected that [Defendant’s] [later] actions were
where [Defendant] was going with this case,” but she avers that she “could not actually
know what [Defendant] would ultimately do, or conduct discovery into [Defendant’s]
actions, until [Defendant’s] conduct occurred.” Reply [#121] at 4. The Court agrees.
Taking discovery regarding events which had not yet happened, such as the denial of
Plaintiff’s UIM claim on September 17, 2024, or on affirmative defenses which had not
yet been made, like those the Court allowed Defendant to add on December 17, 2024,
would be impossible, even if Plaintiff foresaw Defendant’s likely litigation strategy, which
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ultimately may or may not have ever come to pass. Moreover, when the Court granted
Defendant’s request to add affirmative defenses, it explicitly noted that discovery on those
defenses might be required to mitigate any prejudice to Plaintiff. Order [#124] at 10.
Finally, 	the 	sixth 	factor—the 	likelihood 	that 	discovery 	will 	lead 	to 	relevant
evidence—weighs in favor of reopening discovery. Plaintiff asks the Court to allow the
limited reopening of discovery to allow her to depose Ms. Churchwell, as Defendant’s
adjuster, for two hours, and to conduct a Rule 30(b)(6) deposition of Defendant, also for
two hours, to explore (1) Defendant’s conduct related to its demands for a psychological
examination of Plaintiff (which relates to Defendant’s noncooperation defense); (2)
Defendant’s use of Colo. Rev. Stat. § 10-3-1118 to compel the psychological examination;
(3) Defendant’s decision not to move under Rule 35 instead for the psychological
examination; (4) the reasons for Defendant’s subsequent denial of Plaintiff’s claim; (5)
Defendant’s assertions that Plaintiff and her attorneys have failed to cooperate, have
violated policy provisions, and have committed fraud; and, (6) related to all of the
foregoing, the new defenses Defendant asserts in its Amended Answer [#125]. Motion
[#107] at 6. While the Court notes that some of these topics are likely subject to attorney-
client privilege objections because they pertain to Defendant’s litigation strategy, these
topics overall directly concern Defendant’s new affirmative defenses and the events that
occurred after discovery closed.
After weighing the relevant factors, the Court concludes that good cause exists to
amend the Scheduling Order to allow the limited reopening of discovery.
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2. 	Excusable Neglect
The parties dispute whether the “excusable neglect” standard of Fed. R. Civ. P.
6(b) applies here, given that Plaintiff’s request to reopen discovery was made after the
deadline had passed. Response [#118] at 4 (citing several district court decisions from
outside of the District of Colorado in support of Defendant’s argument that it does apply);
Reply [#121] at 2-5 (Plaintiff arguing that the standard is inapplicable under the current
circumstances). The Tenth Circuit Court of Appeals has not directly ruled on whether Rule
6(b) applies to extensions of deadlines set in scheduling orders, although court decisions
suggest that Rule 6(b) may not be applicable to such circumstances. See, e.g., White
Way, Inc. v. Firemen’s Ins. Co. of Wash., D.C., No. 22-2195-KHV-RES, 2022 WL
17177371, at *3 n.4 (D. Kan. Nov. 23, 2022) (discussing Tesone v. Empire Marketing
Strategies, 942 F.3d 979, 989 (10th Cir. 2019), and surveying district court cases); see
also Destra v. Demings, 725 F. App’x 855, 859 (11th Cir. 2018) (holding that only Rule
16(b), and not the more general Rule 6(b), standard applies “[w]hen a deadline appears
in a scheduling order and a motion [for extension] is filed after the deadline”) (citing Sosa
v. Airprint Sys., Inc., 133 F.3d 1417, 1418 n.2 (11th Cir. 1998)).
In Utah Republican Party v. Herbert, the Tenth Circuit noted that “good cause” is
a higher standard than “excusable neglect,” although the two standards are “interrelated.”
678 F. App’x 697, 700 (10th Cir. 2017) (quoting Broitman v. Kirkland (In re Kirkland), 86
F.3d 172, 175 (10th Cir. 1996) (“‘[G]ood cause’ requires a greater showing than
‘excusable 	neglect.’”)). 	In 	fact, 	the 	“good 	cause” 	standard 	appears 	to 	generally
encompass the “excusable neglect” standard. Id. (quoting Broitman, 86 F.3d at 175
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(“Without attempting a rigid or all-encompassing definition of ‘good cause,’ it would
appear to require at least as much as would be required to show excusable neglect.”
(internal quotation marks omitted)). “The existence of excusable neglect is an equitable
inquiry, requiring consideration of all of the relevant circumstances.” Livingston v. Univ.
of Kan. Hosp. Auth., 844 F. App’x 82, 84 (10th Cir. 2021). The factors most commonly
considered in making this determination are: (1) the danger of prejudice to the non-
movant; (2) the length of the delay and any potential effect on the proceedings; (3) the
reasons underlying the delay, including whether the movant had reasonable control over
the delay; and (4) the movant’s good faith. Id. (citing Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
The Court assumes for purposes of resolving the present Motion [#107] that the
“excusable neglect” standard applies. As noted above, there is no indication that
Defendant will be subject to undue prejudice by allowing Plaintiff some additional
discovery. Further, the timing of the delay was not unreasonable and is unlikely to have
a significant impact on future proceedings. In addition, the reasons for the delay were
largely due to the timing of Defendant’s denial of Plaintiff’s UIM claim and the timing of
Defendant’s new affirmative defenses in this case, over which Plaintiff had no direct
control. Finally, the Court finds that Plaintiff has not engaged in any bad faith conduct and
that there is every indication that Plaintiff’s current request for the reopening of discovery
has been made in good faith. Thus, Plaintiff has demonstrated excusable neglect, to the
extent this standard may apply.
Accordingly, the Motion [#107] is granted in part to the extent that Plaintiff asks
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the Court to allow the limited reopening of discovery to allow her to depose Ms.
Churchwell, as Defendant’s adjuster, for two hours, and to conduct a Rule 30(b)(6)
deposition of Defendant. These depositions shall take place within 21 days of the date
of this Order.
B. 	Extension of Expert Report Deadline
Next, Plaintiff asks for permission to supplement the report of Ms. Bergum,
Plaintiff’s insurance industry standards expert, after Ms. Churchwell’s supplemental
deposition and Defendant’s supplemental rule 30(b)(6) deposition. For the same reasons
discussed in Section II.A. above, the Court finds that Plaintiff has shown both good cause
and excusable neglect here. Further, the Court notes that Defendant’s September 30,
2024 supplemental expert report from Mr. Plitt is essentially an affirmative expert report
providing opinions on Defendant’s new affirmative defenses, on which Defendant has the
burden of proof. See, e.g., Ward v. Nat’l Credit Sys., Inc., No. 21-cv-02597-NYW-JPO,
2025 WL 370373, at *9 (D. Colo. Feb. 3, 2025) (noting that a party asserting an affirmative
defense has the burden of proof on that defense at trial). Plaintiff should be permitted,
therefore, to supplement the expert report of her insurance industry standards expert to
rebut Mr. Plitt’s opinions regarding Defendant’s new affirmative defenses.
Accordingly, the Motion [#107] is granted in part, to the extent that Ms. Bergum
may supplement her report within 42 days of the date of this Order, which will give her
approximately 21 days after the depositions are completed.
C. 	Extension of Rule 702 Motion Deadline
Finally, Plaintiff requests leave to file an additional Rule 702 motion pertaining to
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Defendant’s expert Mr. Plitt’s new supplemental report disclosed on September 30, 2024,
which was after the deadline to file Rule 702 motions. The District Judge has already
ruled on Plaintiff’s Rule 702 motion regarding Mr. Plitt’s report made prior to its later
supplementation. Order [#128] at 10-12. Therein, the District Judge noted that “Mr. Plitt
is qualified to offer expert testimony on his understanding of insurance industry customs
and how they apply to the facts of this case[.]” Id. at 11-12. He also noted that the majority
of Plaintiff’s objections to Mr. Plitt’s testimony were “primarily disagreements with his
conclusions” but determined that “these concerns are better addressed through cross-
examination than through a motion to exclude his testimony.” Id. at 11. In fact, the District
Judge only limited Mr. Plitt’s testimony in two respects, first barring him from testifying
that “Defendant’s expert reports are more reliable because they are longer,” and second
barring him from testifying about whether “Plaintiff violated the terms of her insurance
contract or [to] offer any view on the legal meaning of” certain terms. Id. at 10-11.
In light of these holdings (which would certainly apply to Mr. Plitt’s supplemental
report as well), the Court finds that Plaintiff has not adequately demonstrated the need
for an additional Rule 702 motion as to Mr. Plitt’s supplemental report. Plaintiff merely
seeks leave, “if she decides it is necessary and appropriate, to file an additional Rule 702
Motion related to Mr. Plitt’s supplemental report after” she deposes Ms. Churchwell and
Defendant again. Motion [#107] at 6. However, Plaintiff has not even made a prima facie
showing in her briefs regarding why she believes at this time that a new Rule 702 motion
addressing Mr. Plitt’s new opinions may be necessary, despite having his supplemental
report in hand prior to the filing of the Motion [#107]. In the absence of such a showing,
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the Court cannot find good cause for even a limited extension of the deadline to file Rule
702 motions.
Accordingly, the Motion is denied to the extent that Plaintiff requests leave to file
an additional Rule 702 motion pertaining to Defendant’s expert Mr. Plitt’s supplemental
report disclosed on September 30, 2024.
III. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#107] is GRANTED in part and
DENIED in part. The Motion is granted to the extent that Plaintiff asks the Court to permit
the limited reopening of discovery to allow her to depose Ms. Churchwell for two hours
and to conduct a Rule 30(b)(6) deposition of Defendant, also for two hours. These
depositions shall take place within 21 days of the date of this Order. The Motion is further
granted to the extent that Ms. Bergum may supplement her report within 42 days of the
date of this Order. The Motion is otherwise denied.
IT IS FURTHER ORDERED that the dispositive motion deadline is extended to 56
days after the date of this Order. See Minute Order [#134].
IT IS FURTHER ORDERED that Plaintiff’s Motion to Conduct Additional
Discovery Under Fed. R. Civ. P. 56(d) Prior to Responding to Defendant’s Motion
for Summary Judgment (ECF 132) [#135] is GRANTED. Therein, Plaintiff asks the
Court for leave to conduct the discovery requested in the earlier Motion [#107], as
resolved by the Court above, before having to file a Response to Defendant’s Motion for
Complete Summary Judgment [#132], which was filed prior to the previously-vacated
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dispositive motions deadline. The Court has reviewed Defendant’s Response [#139] in
opposition to that Motion. Because the Court is granting Plaintiff leave to conduct
additional discovery pursuant to this Order, discovery which could impact resolution of
the Motion for Complete Summary Judgment [#132], the Court finds it appropriate to allow
that discovery to be conducted before Plaintiff is required to respond to the dispositive
motion. Accordingly,
IT IS FURTHER ORDERED that the deadline for Plaintiff to file a Response to
Defendant’s Motion for Complete Summary Judgment [#132] is extended to 63 days after
the date of this Order.
Dated: 	April 9, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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