Summary
explaining a court cannot find "good cause" pursuant to Rule 16 solely because the non-moving party will not be prejudiced
Summary of this case from CRA Holdings U.S. v. United StatesOpinion
[Copyrighted Material Omitted]
Adam Ross Durst, Goldberg Segalla LLP, Buffalo, NY, James Michael Paulino, II, Goldberg Segalla, LLP, Rochester, NY, for Plaintiff.
Joel J. Terragnoli, New York State Attorney General, Christopher L. Boyd, New York State Attorney General’s Office, Buffalo, NY, for Defendants.
DECISION AND ORDER
JEREMIAH J. McCARTHY, United States Magistrate Judge
Before the court are plaintiff’s motions pursuant to Fed.R.Civ.P. ("Rule") 16(b)(4) for extension of the deadlines for completion of both fact discovery [84] and expert discovery [92]. Those motions are nondispositive (Arnold v. Krause, Inc., 232 F.R.D. 58, 65 (W.D.N.Y. 2004), adopted, 233 F.R.D. 126 (2005) ), and their determination is committed to my discretion. Jones v. J.C. Penny’s Department Stores Inc., 317 Fed.Appx. 71, 75 (2d Cir. 2009) ("we find no abuse of discretion in the Magistrate Judge’s ruling that plaintiff failed to establish good cause for an extension under Rule 16(b)").
Bracketed references are to CM/ECF docket entries. Unless otherwise indicated, page references are to numbers reflected on the documents themselves rather than to the CM/ECF pagination.
Having heard oral argument concerning the first motion on February 20, 2019 [90] and considered the parties’ submissions [84, 86, 87, 89, 92, 93], for the following reasons both motions are denied.
With consent of counsel, I set a briefing schedule [91] for the second motion [92] before the motion had been filed. Having now reviewed that motion, I conclude that it can be resolved without further briefing.
BACKGROUND
Acting pro se, plaintiff commenced this action in May 2013 seeking, inter alia, recovery under 42 U.S.C. § 1983 for exposure to secondhand smoke while incarcerated at the Attica Correctional Facility. "Specifically, plaintiff alleges that during the first 60 days of his time at Attica, he was double bunked in three differen[t] cells with inmates who were all chronic smokers, notwithstanding plaintiff’s complaints to defendant and requests to be bunked with nonsmokers or in a single cell." Durst Declaration [84-1], ¶ 4.
On August 21, 2018 I granted plaintiff’s motion for appointment of counsel [78] and appointed attorneys James Paulino and Adam Durst as co-counsel to represent plaintiff [81]. Following a scheduling conference with the parties on September 13, 2018 [82], I issued a Second Amended Case Management Order [83] confirming the pretrial deadlines which the parties had agreed upon at the scheduling conference - including deadlines of January 31, 2019 for completion of fact discovery and February 28, 2019 for initial expert disclosures. Id., ¶¶ 3, 4. The Order contained the following caution, in boldface type: "No extension of the above deadlines will be granted except upon written application, filed prior to the deadline, showing good cause for the extension. Absent truly exceptional circumstances, any application for an extension shall be made at least one week prior to the deadline sought to be extended. The parties are reminded that ‘a finding of ‘good cause’ depends on the diligence of the moving party’. Parker v. Columbia Pictures Industries, 204 F.3d 326, 340 (2d Cir. 2000) ." [83], p. 2.
On September 27, 2018 plaintiff’s attorneys scheduled the deposition of defendant William Hughes (Deputy Superintendent of the Attica Correctional Facility) for December 5, 2018. [87-3], p. 16 of 17 (CM/ECF pagination). At his deposition, defendant Hughes testified that responsibility for inmate cell assignments was delegated to the facility’s "movement control officer". Durst Declaration [84-1], ¶ 5. During a telephone conversation with Mr. Durst on December 13, 2018, defendants’ attorney Joel Terragnoli identified that individual as James Walker, and offered to assist in securing his deposition. Id., ¶¶ 7-8. By e-mail that same day, Mr. Durst thanked Mr. Terragnoli for that offer, and stated that "we will advise as to our position in that regard". [84-3], p. 2 (CM/ECF pagination).
On January 25, 2019 (six days prior to the deadline for completion of fact discovery), Mr. Durst e-mailed Mr. Terragnoli, requesting dates for Mr. Walker’s deposition and asking whether he would oppose a motion to extend the deadline for completion of fact discovery. [84-4]. In response, Mr. Terragnoli, pointed out that they had not discussed the deposition since December, and stated that "[b]ased on your in action I assumed you no longer intended to take his testimony". [84-7], p. 2 of 4 (CM/ECF pagination). He further noted that my "scheduling order indicates that ‘absent truly exceptional circumstances, any application for an extension shall be made at least one week prior to the deadline sought to be extended’ .... That one week window ended last Thursday, before your email to me inquiring about the possibility of an extension, and I do not think ‘truly exceptional circumstances’ exist here. So I intend to oppose any application for an extension made at this point". Id. Plaintiff’s motion to extend the fact discovery deadline was filed on January 31, 2019, the final day of the fact discovery period.
On February 19, 2019 Mr. Durst submitted a letter motion [89] to District Judge Lawrence Vilardo, "seeking the Court’s approval of the retainer of Dr. Mark Jajkowski, M.D. to serve as a medical expert on behalf of plaintiff pursuant to guideline IV.B. of the Court’s Guidelines Governing Reimbursement from the District Court Fund of Expenses Incurred by Court Appointed Counsel, pending Dr. Jajkowski’s approval as to whether this matter clears conflicts". The motion stated that "[w]e intend to retain Dr. Jajkowski to provide his expert opinion on whether Mr. Smith was harmed as a result of his involuntary exposure to environmental tobacco smoke and whether Mr. Smith’s exposure to environmental tobacco smoke posed an unreasonable risk of serious damage to his future health, an essential element of Mr. Smith’s claim". Id.
On February 20, 2019, counsel appeared before me for oral argument of plaintiff’s motion to extend the fact discovery deadline. At that time we also discussed the approaching February 28, 2019 deadline for initial expert disclosures, in light of plaintiff’s motion to Judge Vilardo for authorization to retain Dr. Jajkowski. I asked Mr. Durst: "If hypothetically Judge Vilardo were to grant your authorization today, do you believe that you could meet that February 28 deadline or would you have to be making a request for an extension? He replied: "I cannot state that with confidence today because we are still struggling getting in contact with our expert. I don’t think that we would have a problem. I don’t think the court’s statement as to our request for the appointment or the approval would have any impact on meeting the deadline, it would be eliciting the expert’s cooperation". On February 21, 2019, plaintiff again moved pursuant to Rule 16(b)(4), this time to extend the deadline for expert disclosures [92]. In support of that motion, plaintiff’s cocounsel, James Paulino II, submitted a Declaration stating that he has "been working with Legal Med to obtain the identity of an appropriate medical expert to address the issues presented in this case" ( [92-1], ¶ 7), that "it was not until the morning of February 20, 2019, that [he] was finally advised by Legal Med of Dr. [ONE]’s availability to provide his services in this litigation" (id., ¶ 13), and that "[i]n that same conversation, Legal Med advised of the availability of an additional expert, Dr. Mitchell [TWO], M.D., who indicated he is also willing to proceed in this matter. It seems Dr. [TWO] is better suited to address the issues in this matter". Id., ¶¶ 14-15. He suggests that "at this point, all that remains is the Court’s approval of plaintiff’s retainer of an expert .... Once we have the approval, we can retain the appropriate expert, and we understand that the expert report and disclosure can be provided in short order". Id., ¶¶ 17-18.
Informal transcription from digital recording of oral argument.
Presumably he is referring to Dr. Jajkowski.
DISCUSSION
While "the district court must exercise its discretion under Rule 16(b) to determine whether the scheduling order should be modified", Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007), that discretion is limited by Rule 16(b)(4), which states that "[a] schedule may be modified only for good cause and with the judge’s consent" (emphasis added). I am not free to ignore that requirement, for while "[t]he Federal Rules of Civil Procedure should be liberally construed ... they should not be expanded by disregarding plainly expressed limitations". Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). See also Carlisle v. United States, 517 U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (courts lack "the power to develop rules that circumvent or conflict with the Federal Rules"); Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) ("federal courts have no more discretion to disregard [a] Rule’s mandate than they do to disregard constitutional or statutory provisions").
While Rule 16(b)(4) does not itself define "good cause", the 1983 Advisory Committee Notes to Rule 16 state that "the court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension". "Although not binding, the interpretations in the Advisory Committee Notes in the Federal Rules of Civil Procedure are nearly universally accorded great weight in interpreting federal rules." Code Revision Commission for General Assembly of Georgia v. Public.Resource.Org, Inc., 906 F.3d 1229, 1250 (11th Cir. 2018); Schiavone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). Thus, the Second Circuit has repeatedly held that "a finding of ‘good cause’ depends on the diligence of the moving party". Parker, 204 F.3d at 340. See also Grochowski v. Phoenix Construction, 318 F.3d 80, 86 (2d Cir. 2003); Presbyterian Church Of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 267 (2d Cir. 2009).
Among the authorities cited by Parker is Carnrite v. Granada Hospital Group, Inc., 175 F.R.D. 439, 446 (W.D.N.Y. 1997), holding that "to demonstrate ‘good cause’ a party must show that despite their diligence the time table could not have reasonably been met".
Plaintiff argues that "the only party who has failed to comply with the Second Amended Case Management Order to date is defendant, who provided his supplemental Rule 26(a)(1) production 53 days after the deadline established in the Order." Plaintiff’s Reply Memorandum of Law [87], p. 3. While plaintiff may seek recourse against defendant if that is true, "one party’s noncompliance with discovery requirements does not excuse the other’s failure to comply. Each party’s obligation is independent." Local Union No. 40 v. Car-Win Construction, 88 F.Supp.3d 250, 272 (S.D.N.Y. 2015).
Plaintiff further suggests that "[a]lthough diligence is the primary consideration for the court when determining whether to extend a deadline, it is not the only consideration", and that the court " ‘in the exercise of its discretion under Rule 16(b), also may consider other relevant factors including, in particular, whether allowing the [extension] ... will prejudice’ the other party". Plaintiff’s Memorandum of Law [92-2], p. 3, quoting Kassner, 496 F.3d at 244. However, since "one panel of [the Second Circuit] cannot overrule a prior decision of another panel", Veltri v. Building Service 32B-J Pension Fund, 393 F.3d 318, 327 (2d Cir. 2004), Kassner cannot be interpreted as dispensing with Parker ’s requirement of diligence for a finding of "good cause". See Woodworth v. Erie Insurance Co., 2009 WL 3671930, *3 (W.D.N.Y. 2009) ("[t]he Court interprets [Kassner ] to mean that, even where the moving party has been diligent, a court may nonetheless deny a late motion to amend when it would prejudice the non-moving party. The Court does not understand ... Kassner to mean that where the moving party has not been diligent, a court many nonetheless grant the motion if it would not prejudice the nonmoving party") (emphasis in original); Gullo v. City of New York, 540 Fed.Appx. 45, 47 (2d Cir. 2013) ("the absence of prejudice alone does not constitute good cause under Rule 16").
See also Yovino v. Rizo, __ U.S. __, 139 S.Ct. 706, __ L.Ed.2d __, 2019 WL 886486, *1 (2019) ("a panel decision ... can be overruled only by a decision of the en banc court or this Court").
Plaintiff has failed to show reasonable diligence in scheduling the Walker deposition. While Mr. Durst argues that he did not earlier attempt to schedule that deposition because he needed to review the transcript of plaintiff’s December 17, 2018 deposition (which he did not receive until January 15, 2019) "[i]n order to properly assess the viability of settlement and determine whether testimony of [Walker] was required" (Durst Declaration [84-1], ¶¶ 11-12), he does not explain why he needed to review the testimony of his own client in order to decide whether to take Mr. Walker’s deposition. As to the possibility of settlement, that possibility "exists in virtually every civil case", and "does not provide an adequate basis for failing to comply with an unequivocal scheduling order of the Court". Arnold, 233 F.R.D. at 130.
Nor does plaintiff offer a satisfactory reason to extend the deadline for expert disclosures. I appreciate counsel’s willingness to accept this pro bono assignment, and can certainly understand their need for time to familiarize themselves with the case following their appointment on August 21, 2018. However, the desirability of expert medical testimony should have been readily apparent by September 12, 2018, when the deadlines of the current Case Management Order were agreed upon. Although plaintiff argues that "the need for [court] approval of the retainer is causing unanticipated delay" in meeting the deadline (plaintiff’s Memorandum of Law [92-2], pp. 3-4), that requirement was entirely foreseeable.
"In determining whether a party has been diligent, courts consider what information the party knew, or should have known, in advance of the deadline sought to be extended." Lopez v. Ramos, 2013 WL 6912692, *3 (S.D.N.Y. 2013). Thus, in Space Maker Designs, Inc. v. Weldon F. Stump & Co., 2003 WL 21805274, *1 (N.D. Tex. 2003), the court denied the defendant’s motion to extend a scheduling order deadline, stating that "the reason given [for the extension] was the difficulty of the Christmas season, something that was clearly predictable in advance .... If Defendant required more time to comply with the Order, it should have provided for that time in the Agreed Amended Scheduling Order".
While Mr. Paulino states that he has working with Legal Med to obtain a medical expert, he does not specify when he began that effort. Moreover, since the expert has not yet been retained - and particularly since counsel now do not plan to use the expert for whom they sought court approval - I am skeptical of plaintiff’s suggestion that but for the lack of court approval of the retainer, "the expert disclosures would be completed by the current deadline" (plaintiff’s Memorandum of Law [92-2], p. 3).
Without discussing its applicability to this case, plaintiff also cites my 2009 decision in Fuller v. Summit Treestands, LLC, 2009 WL 483188 (W.D.N.Y. 2009). Plaintiff’s Memorandum of Law [92-2], p. 3. In Fuller, defendant moved to preclude plaintiff’s expert testimony due to plaintiff’s failure to make expert disclosures within the scheduling order deadline. In response to that motion, plaintiff served his expert report and cross-moved to extend the scheduling order deadline nunc pro tunc . In granting the cross-motion, I stated that "[i]n light of Kassner, the continuing validity of this court’s earlier holding [in Carnrite ] that ‘the absence of prejudice ... does not fulfill the good cause requirement’ ... is questionable". 2009 WL 483188, *6, n. 5.
However, in view of Judge Siragusa’s analysis of Kassner in Woodworth (decided eight months after Fuller ) - namely, that Kassner does not eliminate the requirement of diligence for a finding of "good cause" - I am not certain that I would decide Fuller the same way if the issue were to arise again. To quote the late Justice Robert Jackson, "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday". Commonwealth of Massachusetts v. United States, 333 U.S. 611, 639-40, 68 S.Ct. 747, 92 L.Ed. 968 (1948). In any event, that is a question for another day.
CONCLUSION
For these reasons, plaintiff’s motions to extend the deadlines for fact and expert discovery [84, 92] are denied.
SO ORDERED.