United States District Court, M.D. Florida, Fort Myers Division
RICHARD K. INGLIS, as Special Trustee to the trust under the will of Rosa B. Schweiker, dated February 2, 1961, the Frederick W. Berlinger Revocable Deed of Trust, dated 10/17/1991, as amended and restated. Plaintiff,
WELLS FARGO BANK N.A., Defendant.
MIRANDO, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court upon review of Plaintiff's
Motion to Re-Open Discovery (Doc. 174) filed on January 11,
2017. Plaintiff seeks to reopen discovery in order to depose
two witnesses. Doc. 174 at 1. Defendant opposes the requested
relief. Doc. 177.
November 5, 2014, this case was removed from the Circuit
Court of the Fifteenth Judicial Circuit in and for Palm Beach
County, Florida to the United States District Court for the
Southern District of Florida. Doc. 1. The case later was
transferred to this Court on November 21, 2014. Doc. 13. On
February 22, 2016, Senior United States District Court Judge
John E. Steele entered a Case Management and Scheduling Order
(“CMSO”). Doc. 64. On July 1, 2016, the Court
issued an Amended CMSO extending the discovery deadline to
October 3, 2016, the mediation deadline to October 17, 2016,
the deadline for dispositive motions to November 2, 2016, and
a trial term of March 6, 2017. Doc. 85.
has filed five motions to extend the CMSO deadlines in the
span of two months: on September 12, 2016,  September 26,
2016,  October 10, 2016, October 24, 2016,
November 3, 2016. Docs. 110, 121, 131, 142, 153. The Court
denied as moot Plaintiff's first motion to extend the
discovery deadline (Doc. 110) and denied Plaintiff's two
motions for extension, the emergency motion to extend the
discovery deadline (Doc. 121) and the motion to extend the
deadline for dispositive motions (Doc. 142). Docs. 118, 139.
Plaintiff objected to the Court's Orders (Doc. 118, 139),
which objections Judge Steele overruled. Docs. 122, 124, 146,
163. As a result, the parties' discovery deadline of
October 3, 2016 remained intact and expired over three months
ago. Doc. 85 at 1.
more than two years since this case's transfer to this
Court and less than two months before the trial term of March
6, 2017, Plaintiff filed the present motion to reopen
discovery. Doc. 174. Plaintiff argues that Dechert LLP
(“Dechert”), which rendered services to the
Berlinger Trusts in the year 2009 according to
Plaintiff's previous motion (Doc. 96), also represented
Defendant in a separate lawsuit between Defendant and the
Berlinger Trusts. Id. at 2. According to Plaintiff,
Kyle Groft's letter, attached as an exhibit to the
present motion, shows that in September 2011, Defendant asked
the Berlinger Trusts to make a payment for Dechert's
services. Doc. 174-3. Plaintiff argues that Defendant's
letter was an attempt to delay the transfer of assets from
Defendant to the Berlinger Trusts by seeking the payment two
years after Dechert rendered its services. Doc. 174 at 2.
Plaintiff claims that the letter is evidence of
Defendant's criminal intent to temporarily deprive the
trustee of the remaining funds in the Berlinger Trusts and
permanently deprive the Berlinger Trusts of the legal fees
that Defendant, not the Berlinger Trusts, owed to Dechert.
Id. Plaintiff believes that the deposition of two
witnesses, Kyle Groft (“Groft”) and Arthur
Newbold (“Newbold”), whose identity Plaintiff
does not explain,  would help establish Defendant's
criminal intent. Id. at 2-3. To investigate
Defendant's criminal intent in depth, Plaintiff suggests
to depose the two witnesses on the same day as the deposition
of Janice Evans (“Evans”). Id. at
argues that the present motion is an attempt to avoid the
Court's prior Orders, which found that Plaintiff failed
to establish the relevancy of Dechert's services to
Defendant in the year 2009. Doc. 177 at 2. According to
Defendant, because the underlying Dechert's services and
documents are not relevant, it is not entirely clear what
Plaintiff's present motion seeks to accomplish.
Id. at 3. Instead, Defendant asserts that Plaintiff
is engaged in an improper fishing expedition. Id.
Furthermore, Defendant claims that Plaintiff's present
motion shows a disregard for the Court's prior Orders and
pretrial deadlines. Id. Lastly, Defendant argues
that Plaintiff lacked diligence in conducting discovery
because Defendant provided a deposition date for Groft and
even offered to receive a subpoena on his behalf in August
2016. Id. at 5. Regardless, Defendant asserts that
Plaintiff's present motion is deficient because Defendant
paid for Dechert's services out of its own pocket.
Id. at 4.
motion to reopen discovery “on an issue that is pending
before the Court at the summary judgment stage is evaluated
under Federal Rule of Civil Procedure 56(f).”
Davken, Inc., v. City of Daytona Beach Shores, No.
6:04-cv-207-Orl-19DAB, 2006 WL 1232819, at *4 (M.D. Fla. May
5, 2006). Under Rule 56(f), the court “may refuse an
application for summary judgment or may order a continuance
to permit affidavits to be obtained or depositions to be
taken or discovery be had if it should appear form the
affidavits of the party opposing the summary judgment that
the party cannot present by affidavit facts essential to
justify the party's opposition to the motion.”
Id. “Unlike a motion to reopen discovery on an
issue that is pending before the Court at the summary
judgment stage, a motion to reopen discovery on other issues
would ultimately constitute a modification of the [CMSO] and
is evaluated under Federal Rule of Civil Procedure
the Court will analyze the present motion under Rule 16(b)
because Plaintiff does not represent that this issue is
pending before the Court at the summary judgment stage.
See id.; Doc. 174. Furthermore, the parties already
had completed filing their dispositive motions as well as
responses to each other's dispositive motion because the
parties' deadline for dispositive motions was November 2,
2016. Docs. 85, 148, 149, 160, 162. Plaintiff does not argue
at all that he could not file an effective summary judgment
motion or an effective response to Defendant's summary
judgment motion because he did not depose the two witnesses.
courts have broad discretion when managing their cases in
order to ensure that the cases move to a timely and orderly
conclusion. Chrysler Int'l Corp. v. Chemaly, 280
F.3d 1358, 1360 (11th Cir. 2002). Rule 16 requires a showing
of good cause for modification of a court's scheduling
order. Fed.R.Civ.P. 16(b)(4). “This good cause standard
precludes modification unless the schedule cannot be met
despite the diligence of the party seeking the
extension.” Sosa v. Airprint Sys., Inc., 133
F.3d 1417, 1418 (11th Cir. 1998) (internal quotations and
citations omitted). In addition, “[g]enerally, a motion
for additional discovery is properly denied where a
significant amount of discovery has already been obtained and
further discovery would not be helpful.” Artistic
Entm't, Inc. v. City of Warner Robins, 331 F.3d
1196, 1202 (11th Cir. 2003) (upholding the district
court's ruling that further discovery would not be
helpful “primarily because all of these issues could
have been addressed much earlier in this litigation.”).
the Court finds that (1) Plaintiff's further discovery
would not be helpful and (2) Plaintiff does not demonstrate
good cause under Rule 16(b). The Court's earlier Order
and the present motion show that Plaintiff was aware of
Dechert's services to the Berlinger Trusts in the year
2009, and the relevant evidence dates back to the years 2008
to 2011. Docs. 158 at 3-8, 174-3. Although Plaintiff argues
that the two witnesses do not appear on the parties'
initial disclosure, as Defendant points out, Plaintiff had
more than ample time and opportunities to investigate into
this issue and to discover evidence at least since this
case's transfer to this Court on November 21, 2014. Docs.
13, 174 at 2, 177 at 5. As a result, as the Eleventh Circuit
held, “all of these issues could have been addressed
much earlier in this litigation.” Artistic
Entm't, 331 F.3d at 1202. Furthermore, given the
length of time that this case has been pending before the
Court, the parties must have conducted a significant amount
of discovery and used that as the basis for their summary
judgment motions. See id.; Docs. 148, 149, 160, 162.
the Court finds Plaintiff's arguments based on Evans'
upcoming deposition to be without merit. As the CMSO states,
“[f]ailure to complete discovery within the time
established by this order shall not constitute cause for
continuance unless brought to the attention of the Court at
least sixty days in advance of the beginning of the scheduled
trial term.” Doc. 64 at 4. Unlike Plaintiff's
belated motion here, which Plaintiff brought less than sixty
days before the scheduled trial term, Defendant moved for a
protective order for Evans' deposition one month before
the discovery deadline expired. Doc. 106. Evans'
situation also involves a health emergency, which Defendant
could not have anticipated when this case was transferred on
November 21, 2014. Docs. 13, 116.
it is hereby
Motion to Re-Open Discovery ...