Keaton v. Sedwick Claims Management Services, Inc., et al

REPLY to Response to Motion

W.D. Tex.December 12, 2017

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WILLIAM KEATON, Plaintiff. vs. SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., et al., Defendants. § § § § § § § § § § Civil Action No. 5:17-cv-223 DEFENDANTS’ REPLY IN FURTHER SUPPORT OF THEIR JOINT MOTION FOR PROTECTIVE ORDER AND TO QUASH PLAINTIFF’S DISCOVERY REQUESTS AND RESPONSE TO PLAINTIFF’S MOTION TO AMEND THE SCH EDULING ORDER AND TO EXTEND THE DISCOVERY DEADLINE INTRODUCTION On October 24, 2017, Keaton served out-of-time and out-of-scope Discovery Requests on defendants Charter and Sedgwick.1 These requests violate the Court’s June 23, 2017 scheduling order, (Mot. at 2–3 (citing ECF No. 31 at 2)), and seek information irrelevant to Keaton’s claims or duplicative of previously produced documents, (Mot. at 3–6). Keaton did not meet and confer with Defendants or seek leave of Court to file his belated Discovery Requests. On November 17, 2017, Defendants moved for a protective order and to quash Keaton’s untimely Discovery Requests. (Mot.) Prior to filing their motion, Defendants attempted to meet and confer with Keaton by e-mail on November 16, 2017 and by telephone on November 17, 2017, but Keaton did not return Defendants’ messages. (Mot. at Cert. of Conference.) On December 1, 2017, Defendants filed their motion f r summary judgment in accordance with the Court’s scheduling order. (ECF No. 45.) Later that day, Keaton sought leave 1 All capitalized terms not defined herein shall have the meaning ascribed to them in Defendants’ Joint Motion to Quash Plaintiff’s Discovery Requests (ECF No. 38) (“Mot.”). Case 5:17-cv-00223-XR Document 50 Filed 12/12/17 Page 1 of 7 2 to file a belated opposition to Defendants’ motion f r protective order seven days after the deadline. (ECF No. 47.) Defendants did not oppose hi request, (ECF No. 48), and the Court granted Keaton leave. Keaton’s response to Defendants’ motion for protectiv order and alternative motion to amend the scheduling order (“Resp.”) was docketed on December 5, 2017. (ECF No. 49.) In his response, Keaton claims that Defendants are responsible for his failure to issue discovery within the four months provided under the Court’s scheduling order. (Resp. at 1.) Keaton admits, however, that Defendants produced the Plan documents o July 11, 2017, the administrative record on August 18, 2017, and the Service Agreement on September 15, 2017. (Resp. at 4–5.) To the extent Keaton somehow could not issue Discovery Requests until he was in possession of all of those documents, there is no excuse proffered for his delay of an additional thirty-nine days from September 15, 2017, when he received the last document from Defendants, to October 24, 2017, when he finally issued his discovery. Defendants made a strategic decision to proceed to summary judgment on the administrative record, without the benefit of discovery, in reliance on Keaton’s apparent decision to also forego discovery. And Defendants filed that motion for summary judgment on December 1, 2017 based on Keaton’s apparent decision to forego an opposition to Defendants’ motion for protective order. It would be manifestly unfair for Keaton to be permitted to unwind the consequences of his dilatory conduct after Defendants have already acted in reliance thereon. Accordingly, at this late stage in the proceedings, the Court should not modify its scheduling order, permit Keaton o conduct discovery with Defendants’ summary judgment motion in hand, and delay resolution of this action to Defendants’ detriment. Defendants respectfully request that the Court grant its motion for protective order and deny Keaton’s motion to modify the scheduling order. Case 5:17-cv-00223-XR Document 50 Filed 12/12/17 Page 2 of 7 3 ARGUMENT Keaton attempts to justify his Discovery Requests, which he admits were served in violation of this Court’s scheduling order, (Resp. at 6), by attempting to shift responsibility for, and downplay the consequences of, his dilatory conduct. A party cannot obtain modification of a scheduling order, however, unless he “‘show[s] that the deadlines” in the order could not “reasonably be met despite” his “diligence.” See Choice Hotels Int’l, Inc. v. Goldmark Hosp., LLC, No. 12-cv-0548, 2014 WL 80722, at *4 (N.D. Tex. Jan. 9, 2014). Keaton has presented this Court only with unavailing excuses, rather any evidnce of diligence, with respect to his Discovery Requests. Accordingly, the Court should not modify its scheduling order, permit Keaton to conduct discovery, or delay the time for response to the summary judgment motion. Keaton first blames his failure to timely serve discovery on “Defendants’ repeated failures and delays in providing documents to” him. (Resp. at 7.) Specifically, in an unsigned declaration of counsel, Keaton claims that he requested the administrative record, Plan documents, and the Service Agreement from Defendants. (Declaration of Jessica Taylor (“Taylor Decl.”) ¶¶ 2–5 (ECF No. 49); see also Resp. at 3–5.) But Keaton admits that he received th administrative record on October 1, 2015, and again on August 18, 2017. (Taylor Decl. ¶¶ 2, 4.) Keaton also admits that he received all “relevant short-term disability plan documents” on July 11, 2017 – “th[e] same day” they were requested from Charter. (Id. ¶ 3.) And Keaton finally admits that he received the Services Agreement on September 15, 2017 – within the 30-day time period provided by the Federal Rules to respond to a request for production. (Resp. at 5.)2 Thus, Keaton could have issued discovery under the tim line provided in the scheduling order with the benefit of nearly five weeks to review the Service Agreement, over three months 2 Keaton’s unsigned declaration of counsel, which incorrectly avers that Charter provided the Services Agreement to Keaton on September 17, 2017, is inconsistent with Keaton’s response brief, which correctly states Keaton received the Services Agreement on September 15, 2017. Case 5:17-cv-00223-XR Document 50 Filed 12/12/17 Page 3 of 7 4 to review the relevant Plan documents, and over two years to review the administrative record. To the extent Defendants’ production was incomplete, as Keaton falsely claims, that would militate in favor of serving discovery earlier, not la er. Keaton offers no excusable basis for his failure to comply with this Court’s scheduling orde, and his discovery requests therefore should be quashed. Droblyn v. Rock-Tenn Servs., Inc., No. 13 C 302, 2014 WL 798381, at *2 (N.D. Tex. Feb. 28, 2014) (“Plaintiff’s own factual recitat ons make clear that she could have—but did not—serve these additional discovery requests in time to be completed prior to the deadline set by the Court,” and “Plaintiff was aware of her alleged need to request additional discovery . . . over three months before the expiration of the Court’s discovery deadline.”).3 Keaton next blames his failure to timely serve the Discovery Requests on his “paralegal mistakenly calendar[ing] the deadline . . . for Monday, October 23, 2017, rather than Saturday, October 21, 2017[.]” (Taylor Decl. ¶ 6.) But Keaton missed this deadline as well; he did not serve the Discovery Requests until Tuesday, October 24. (Mot. at 2–3; Resp. at 5.) Moreover, Keaton did not attempt to confer with Defendants or seek leave from this Court to modify the Scheduling Order before serving his belated Discovery Requests. Instead, Keaton waited until after he served the Discovery Requests, after Defendants moved for a protective order, after his 3 Keaton states that his violation of this Court’s scheduling order was merely “technical” because he issued the Discovery Requests “only three days after the deadline.” (See Resp. at 6-7.) Courts in this Circuit have quashed discovery requests under similar circumstances. See, e.g., Dixon v. Albemarle Corp., No. 04-cv-0170, 2005 WL 6737048, at *1 (S.D. Tex. Apr. 22, 2005) (5 days late); Thomas v. IEM, Inc., No. 06-cv-886, 2008 WL 695230, at *2 (M.D. La. Mar. 12, 2008) (8 days late). Keaton’s reliance on Cut-Heal Animal Care Prod., Inc. v. Agri-Sales Assocs., Inc., No. 07 C 1816, 2009 WL 305994 (N.D. Tex. Feb. 9, 2009) and Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 412 (S.D. Tex. 2012) is misplaced. (See Resp. at 7-8.) In Cut-Heal, the plaintiff sought leave to modify the discovery schedule before serving discovery. 2009 WL 305994, at *1. And in Diaz, the court modified its scheduling order to permit a Rule 35 inspection after it decided, as a matter of first impression in this Circuit, that Rule 35 inspections are subject to court-ordered discovery deadlines. 279 F.R.D. at 418, 22. By contrast, Keaton cannot claim to be surprised that the discovery deadline in the Court’s scheduling order cover his Discovery Requests under Federal Rules Rule 33, 34, and 36. Case 5:17-cv-00223-XR Document 50 Filed 12/12/17 Page 4 of 7 5 deadline to respond to that motion had passed, and after Defendants moved for summary judgment to finally request that this Court excuse his non-compliance with its scheduling order. Finally, Keaton wrongly claims that his delay in serving the Discovery Requests was “very brief and did not impose any undue burden on Defendants or delay the litigation of this case.” (Resp. at 7.) Allowing Keaton to proceed with discovery after the summary judgment motion has been filed would prejudice Defendants. See Choice Hotels Int’l, Inc., 2014 WL 80722, at *4 (“re-opening discovery after the filing of a summary judgment motion . . . is . . . a source of potential prejudice” which “could precipitate a costly second round of briefing and delay the resolution of this lawsuit.”). Keaton’s self-serving proposal that the Court indefinitely extend the deadline for him to respond to the motion for summary judgment, while he conducts discovery and engages in motion practice on any discovery disputes, would not only delay these proceedings, but also exacerbate, not cure, the prejudic . Id. (holding that, where a party “has already filed a summary judgment motion . . . based on the evidence of record at the close of discovery,” a continuance would “exacerbate” and “not cure this potential prejudice.”).4 CONCLUSION Defendants respectfully request that the Court grant their motion for protective order and to quash and deny Keaton’s motion to modify the scheduling order. 4 In any event, Keaton does not require discovery. He seeks “copies of all relevant plan documents,” (Mot. Ex. A at 10), which he already received, (Taylor Decl. ¶ 3). He also seeks information in furtherance of his document request claim, (Mot. at 9), which he likewise has been provided, (See Taylor Decl. ¶¶ 2–5 (detailing when Keaton received the claim file, Plan documents, and Service Agreement)). Finally, he seeks far-reaching information regarding Charter’s general claims payment and evaluation policies. (Mot. Ex. A at 10–12.) But courts routinely deny discovery into “claim handling procedures” and “claims-handling manuals, training, bulletins, rules, guidelines, and memos” a “overly broad and improper for discovery under ERISA” because “it relates to information farexceeding the scope of the administrative record and the denial of Plaintiff’s claim for benefits.” Brumley v. Cont’l Cas. Co., No. 10-cv- 0819, 2010 WL 11530606, at *2 (N.D. Tex. Dec. 23, 2010). Case 5:17-cv-00223-XR Document 50 Filed 12/12/17 Page 5 of 7 6 Dated: December 12, 2017 Respectfully submitted, By: s/ Christina Ponig Christina Ponig DLA PIPER LLP (US) 1000 Louisiana Street, Suite 2800 Houston, Texas 77002-5005 Tel: 713.425.8436 Fax: 713.300.6036 christina.ponig@dlapiper.com Raja Gaddipati (admitted pro hac vice) DLA PIPER LLP (US) 444 West Lake Street, Suite 900 Chicago, IL 60606-0089 Tel: 312.368.4000 Fax: 312.236.7516 raja.gaddipati@dlapiper.com Counsel for Charter Communication, Inc. s/ John Russell John Russell (admitted pro hac vice) Lauren Wong RUSSELL & OLIVER, PLC 5178 Wheelis Drive Memphis, TN 38117 Tel: 901.844.4434 Fax: 901.844.4435 johnr@russelloliverlaw.com laurenw@russelloliverlaw.com Counsel for Sedgwick Claims Management Services, Inc. Case 5:17-cv-00223-XR Document 50 Filed 12/12/17 Page 6 of 7 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Reply In Further Support of Defendants’ Joint Motion For Protective Order and to Quash Plaintiff’s Discovery Requests and Response to Plaintiff’s Motion to Amend the Scheduling Order and to Extend the Discovery Deadline has been served electronically via the Court’s CM/ECF system on December 12, 2017 to all counsel of record. By: s/ Christina Ponig Christina Ponig 7 Case 5:17-cv-00223-XR Document 50 Filed 12/12/17 Page 7 of 7