Rolac Contracting Inc. v. RM Builders JV et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROLAC CONTRACTING, INC.,
Plaintiff,
v. Case No. 1:25-cv-00474-KK-LF
RM BUILDERS JV and
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE
OR IN THE ALTERNATIVE TO AMEND THE SCHEDULING ORDER
This matter comes before the Court on defendants’ Motion to Strike or in the Alternative
to Amend the Scheduling Order, filed October 31, 2025. Doc. 24. Defendants state that the
Court’s scheduling order set the deadline for plaintiff’s Rule 26(a)(2) expert disclosure as
October 1, 2025. Doc. 24 at 1; see also Doc. 18 at 2 (scheduling order setting October 1, 2025,
expert disclosure deadline for plaintiff and including a footnote stating, “Experts who are
retained or specifically employed to provide expert testimony also must submit an expert report
by this date.”). Plaintiff filed an expert witness disclosure for Mr. Christopher L. Hrach, but this
disclosure did not include an expert witness report. Doc. 24 at 1–2. Plaintiff acknowledges that it
did not provide an expert report timely and states that the reason for this failure was that
plaintiff’s counsel did not complete the document review process in time to provide Mr. Hrach
all materials he would need to prepare an expert report. Doc. 26 at 2–3. Defendants move to
strike Mr. Hrach as an expert witness or, in the alternative, to amend the scheduling order to set a
new expert witness report deadline for plaintiff and allow defendants the same forty-five days
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from that date to produce a rebuttal expert witness report. Doc. 24 at 2. This extension would
also necessitate an extension of the closing date for discovery. Id.
Federal Rule of Civil Procedure 37(c) states, “If a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or harmless.” It permits the court discretion to impose
alternative sanctions if appropriate. Id. Here, the Court finds that an amended scheduling order
would render plaintiff’s untimely disclosures harmless because it would allow defendants
sufficient time to provide a rebuttal expert report. No trial date has been set in this case, and a
settlement conference is set for March 12, 2026, which would allow for substantial additional
discovery before the parties engaged in settlement negotiations. See Doc. 31. Plaintiff does not
oppose defendants’ requested amendment to the scheduling order. Doc. 26 at 1.
The Court therefore GRANTS IN PART AND DENIES IN PART defendants’ motion
(Doc. 24). The Court DENIES the motion with regard to its request that the Court strike
plaintiff’s expert witness. The Court GRANTS the motion with regard to its request for an
extended scheduling order. The new deadlines are as follows:
Plaintiff’s Rule 26(a)(2) expert report for Mr.
Hrach:1 Friday, January 23, 2026
Defendants’ Rule 26(a)(2) expert disclosure:1 Monday, March 9, 2026
Termination date for discovery: Wednesday, April 8, 2026
1 This is not an extension of plaintiff’s deadline to disclose additional experts. Plaintiff’s expert
disclosure deadline has passed.
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Motions relating to discovery to be filed by:2 Tuesday, April 28, 2026
Pretrial motions other than discovery motions
(including motions which may require a Daubert
hearing)3 filed by: Friday, May 8, 2026
All other deadlines and discovery parameters remain as previously set in the Court’s
original scheduling order. See Doc. 18. Also, as stated in the Court’s original scheduling order,
any further requests for an extension must be made prior to the expiration of the deadline. It is so
ordered.
____________________________________
LAURA FASHING
UNITED STATES MAGISTRATE JUDGE
2 This deadline should not be construed to extend the 21-day time limit in D.N.M.LR-Civ. 26.6.
The Court will permit the parties to extend the 21-day time limit for filing a motion to compel
pursuant to Local Rule 26.6 by written stipulation filed with the Court, as long as the extension
does not impact the court-ordered discovery motions deadline.
3 This deadline applies to motions related to the admissibility of experts or expert testimony that
may require a Daubert hearing, but otherwise does not apply to motions in limine. The Court will
set a deadline for filing motions in limine in a separate order.
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