MCNEAL v. FOUNDATION RADIOLOGY GROUP PC (2023)

ORDER DENYING DEFENDANT'S MOTION TO ADJOURN TRIAL

In December 2020, Plaintiff Alex McNeal filed this medical-malpractice suit against Defendants in Isabella County Circuit Court. ECF No. 1-2 at PageID.9–24. The case progressed in state court until a nondiverse Defendant was dismissed in March 2022, at which point Defendants successfully removed the case here because Plaintiff maintained a nondiverse defendant to prevent removal. See ECF Nos. 5; 8; 10; 12; 19. Trial will begin on August 1, 2023, ECF No. 11. Defendants now seek an adjournment to January 2024 to accommodate the schedule of their third attorney—who appeared in the case a month and a half ago and works for the same law firm as their other two attorneys. ECF No. 45.

But Defendants have not demonstrated good cause for their requested five-month adjournment. A scheduling order “may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). Defendants argue that good cause exists because Attorney John Toth recently filed an appearance and is unavailable during the August trial date—and the following five months.¹ ECF No. 45 at PageID.768–69. But they do not explain why Mr. Toth's presence is necessary, only that he is a more “seasoned” attorney. Id. at PageID.769. Yet his co-counsel who removed the case here, Attorney Todd McConaghy, is a similarly “seasoned” partner at the same law firm who has practiced law in Michigan for more than 25 years. See Todd A. McConaghy, Sullivan, Ward, Patton, Gleeson & Felty, P.C., http://www.sullivanwardlaw.com/attorneys-Todd-McConaghy.html [https://perma.cc/A9ME-W82Z] (“His clients include hospitals, medical centers, assisted-living facilities, memory-care facilities, nursing homes, dialysis centers, physicians, physician's assistants, therapists, nurse practitioners, nurses, certified clinical-hemodialysis technicians, physical therapists, certified nursing assistants[,] and attorneys.”).²

In sum, Mr. Toth's mysterious five-month unavailability does not warrant a five-month delay, especially considering that this case has been pending for 29 months and Mr. Toth's entirely competent co-counsel is available for the August 2023 trial date.

Accordingly, it is ORDERED that the Defendant's Motion to Adjourn Trial, ECF No. 45, is DENIED.

FOOTNOTES

1.   Without providing any specific dates or details, Defendants vaguely explain that Mr. Toth is unavailable from August–December 2023 because is “participating in several other cases that are scheduled to proceed to trial this year.” ECF No. 45 at PageID.769.

2.   “Courts may take ‘judicial notice of an adjudicative fact’ under Federal Rule of Evidence 201(b)(2).” Matthew N. Preston II, The Tweet Test: Attributing Presidential Intent to Agency Action, 10 Belmont L. Rev. 1, 13 (2022). This Court is taking judicial notice of counsel's bar license and law-firm profile because “the information ․ is verifiable in public records.” Novak v. Federspiel, No. 1:21-CV-12008, 2022 WL 17176832, at *4 n.5 (E.D. Mich.) (citing Bormuth v. Cnty. of Jackson, 870 F.3d 494, 501 (6th Cir. 2017)), recons. denied, 2022 WL 17415116 (E.D. Mich.), and mot. for relief from j. denied, 2022 WL 17616430 (E.D. Mich. Dec. 13, 2022); see also O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of factual information found on the world wide web.”).

THOMAS L. LUDINGTON, United States District Judge