United States District Court, M.D. Florida, Tampa Division
ARNOLD SANSONE UNITED STATES MAGISTRATE JUDGE
cause comes before the Court on Plaintiff's Motion to
Strike, Stay and or Abate Ruling on Defendant's Motion
for Summary Judgment Pursuant to Recent Discovery that
Defendant Materially Breached its Obligation to Comply with
Discovery and to Compel Defendant to Comply and or and in
Fairness Allow Plaintiff a Reasonable Extension of Time to
Respond Necessitated by Violations and Unforeseen
Circumstances Resulting from Hurricane Irma (“Motion to
Delay Ruling and Reopen Discovery” or
“Motion”) (Doc. 65), and Defendant's response
thereto (Doc. 67).
brings this action against Defendant for alleged nationality
discrimination, unlawful retaliation, retaliation under the
False Claims Act, and harassment. (Doc. 42). On April 13,
2016, the Court issued its Case Management and Scheduling
Order (“CMSO”), which included a November 28,
2016 discovery deadline. (Doc. 32). On March 3, 2017,
Plaintiff filed an Unopposed Motion to Extend Discovery,
requesting to reopen and extend the discovery deadline to
take the depositions of Defendant's
employees. (Doc. 51). The Court granted the motion
and extended the discovery deadline to May 3, 2017. (Doc.
52). On May 5, 2017, the parties filed an Agreed Motion to
Extend All Deadlines, Pretrial and Trial, because
Plaintiff's counsel had “been attempting to serve
witnesses for deposition without success.” (Doc. 57).
The Court granted the parties' agreed motion, extended
the discovery deadline to August 23, 2017, extended the
dispositive motion deadline to September 25, 2017, and
rescheduled the final pretrial conference for November 13,
2017, in anticipation of a December trial. (Doc. 58).
September 25, 2017, Defendant filed a Motion for Summary
Judgment. (Doc. 64). On October 10, 2017, over a month after
the twice extended discovery deadline, Plaintiff filed the
instant Motion to Delay Ruling and Reopen Discovery. (Doc.
65). On October 26, 2017, Defendant filed a response in
opposition to Plaintiff's Motion. (Doc. 67). Accordingly,
this matter is ripe for review.
Motion requests that the Court delay ruling on
Defendant's Motion for Summary Judgment (Doc. 64), and
reopen discovery so that certain purported discovery
violations can be addressed. (Doc. 65, pp. 6-11). Plaintiff
also requests an extension of time to respond to
Defendant's Motion for Summary Judgment. (Id. at
pp. 5-6). The Court will address each request in turn.
Motion to Delay Ruling and Reopen Discovery
requests that the Court delay ruling on Defendant's
Motion for Summary Judgment until Defendant complies with its
discovery obligations. (Id. at pp. 6-11). Discovery
is this action closed on August 23, 2017, after being twice
extended for a total of almost nine months past the original
discovery deadline. (Docs. 32, 52, 58). Plaintiff did not
file the instant Motion, which accuses Defendant of discovery
violations, until October 10, 2017-almost seven weeks after
the discovery deadline and after Plaintiff's deadline for
responding to Defendant's Motion for Summary Judgment.
(Doc. 65). Because the discovery deadline has passed,
Plaintiff must demonstrate good cause and excusable neglect
for the delay in raising these discovery issues and
requesting that the Court reopen discovery.
schedule may be modified only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4); see
also Fed. R. Civ. P. 6(b)(1) (“When an act may or
must be done within a specified time, the court may, for good
cause, extend the time[.]”). In addition, when a motion
to extend discovery is filed after the expiration of the
deadline, the moving party also must demonstrate
“excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).
Further, Local Rule 3.09(b), M.D. Fla., permits the Court to
extend a discovery deadline only when it is “not the
result of lack of diligence in pursuing such
Plaintiff alleges that Defendant withheld certain work orders
and email correspondence from production. (Doc. 65, pp. 3-6).
In response, Defendant contends that it does not possess the
documents Plaintiff now seeks, and was not legally required
to maintain them. (Doc. 67, p. 4). Both parties agree that
immediately after Plaintiff's deposition on April 24,
2017, Plaintiff was in receipt of the documents Defendant
produced in response to Plaintiff's discovery requests,
Bates Numbered 1-3054. (Doc. 65, pp. 3-4; Doc. 67, pp. 2-3).
As possible reasons for the over five-month delay in filing
this Motion, Plaintiff references Attorney Dandar withdrawing
from the case on July 26, 2017 (Doc. 63), and Attorney
Tanner's need to provide care for a close relative. (Doc.
65, pp. 4-5). Although Plaintiff filed this action pro se,
Mr. Tanner appeared on her behalf beginning in March 2016,
with Mr. Dandar specially appearing in August 2016 for
purposes of the mediation followed by his more active role in
the litigation in 2017 as indicated by the motion practice.
(Docs. 28, 39). Both attorneys had an obligation to actively
participate in discovery within the discovery period,
including the multiple extensions. On this record, the Court
cannot conclude that good cause, or excusable neglect, exists
for the delay in filing this Motion.
in light of the foregoing, Plaintiff's request to delay
ruling on Defendant's Motion for Summary Judgment and
reopen discovery is denied.
Motion for Extension of Time
Plaintiff requests an extension of time to response to
Defendant's Motion for Summary Judgment, due to hardship
caused by Hurricane Irma. (Doc. 65, pp. 5-6). Defendant has
no objection to Plaintiff's request. (Doc. 67, p. 1).
Plaintiff's request for an extension is granted.
Plaintiff shall file her response to ...