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Louisiana Counseling and Family Services, Inc., et al v. Mt. Fugi Japanese Restaurant

May 1, 2013


The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

[Doc. No. 115]


This matter is before the Court on the "Motion to Compel Expedited Discovery/Extend Time for Discovery" [Doc. No. 115] filed by defendant Hello Gorgeous Salon and Spa, Inc. (hereinafter "Hello Gorgeous" or "defendant"). Defendant seeks leave to take the depositions of plaintiff and her expert in this 41/2 year old case. Plaintiff opposes the motion.*fn1 [Doc. No. 125]. The Court exercises its discretion to decide defendant's motion without oral argument. Fed. R. Civ. P. 78; L. Civ. R. 37.1(b)(4). For the reasons to be discussed, defendant's motion is DENIED. Background

The procedural background of this matter as to Hello Gorgeous is long and tortured. The Court will use its best efforts to provide a succinct summary. As is evident from the following discussion, defendant has consistently missed applicable deadlines and there is a history of dilatoriness. In addition, defendant did not avail itself of numerous opportunities to take the requested depositions before the fact discovery deadline expired on November 30, 2012.

Plaintiff filed her complaint on December 15, 2008 against Hello Gorgeous and other similarly situated defendants. The essence of plaintiff's complaint is that defendant's facility violated the Americans with Disabilities Act, 42 U.S.C. §181, et seq., and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq.. A default was entered against defendant on March 3, 2009. [Doc. No. 22]. On January 19, 2010, the Court denied plaintiffs' motion for default judgment and vacated the default. [Doc. No. 61].*fn2 Thereafter, on February 24, 2010, the Court's Scheduling Order set a fact discovery deadline of May 31, 2010 (see Doc. No. 62 at ¶5). Plaintiff filed her motion for summary judgment directed to defendant on December 14, 2010. [Doc. No. 71]. The motion was denied in an Order issued on July 27, 2011. [Doc. No. 76]. The same Order directed plaintiff to show cause why it had standing to bring the present law suit. Plaintiff filed her amended complaint on August 18, 2011 [Doc. No. 77]. Another default was entered against Hello Gorgeous on September 28, 2011 [Doc. No. 83].

On March 22, 2012, defendant's present counsel wrote the Court and advised it that defendant's counsel died in July, 2011. On May 31, 2012, defendant filed a motion to set aside the September 28, 2011 default [Doc. No. 87] and a motion to dismiss [Doc. No. 86]. On June 6, 2012, present counsel entered her appearance of record for defendant. [Doc. No. 88]. On June 20, 2012, plaintiff's second motion for default judgment was denied and her default was vacated. [Doc. No. 93]. Defendant's motion to dismiss was denied on August 8, 2012. [Doc. No. 97].

On August 21, 2012, the Court entered a Scheduling Order setting a fact discovery deadline of November 30, 2012. [Doc. No. 100 at ¶1]. On November 30, 2012, the date the deadline expired, defense counsel advised the Court that it intended to file "motions related to plaintiff's non-compliance with discovery demands as ordered during the in-person status conference on August 21, 2012." [Doc. No. 102]. Defense counsel wrote she attempted to schedule plaintiff Jeanette Brown's deposition without success. Defense counsel also wrote that she intended to "file an omnibus motion to compel discovery, extend time for discovery, extend time for the filing of dispositive motions, and sanctions unless [her] requests can be otherwise accommodated by consent and stipulation or by further Order of the Court." Id. The motion was never filed. Although the Court did not extend the fact discovery deadline, on December 7, 2012, it entered a new Scheduling Order extending the time to file dispositive motions to February 14, 2013. [Doc. No 106 at ¶1]. Plaintiff and defendant filed motions for summary judgment on February 14, 2013. [Doc. No. 109, 110]. The motions have been briefed and they await decision.

Defendant's present motion asks the Court to extend the fact discovery deadline so it can take the depositions of plaintiff Jeanette Brown and her expert. The first time defense counsel mentioned she wanted the Court to direct plaintiff Jeanette Brown to appear to be deposed was during a February 22, 2013 conference call. The first time defendant requested to take plaintiff's expert's deposition was when it filed the present motion on March 1, 2013. According to plaintiff, defendant received the expert's report in December 2008, when it was served. Brief at 1-2, 14.*fn3


Since plaintiff's motion was filed after the fact discovery deadline expired, Fed. R. Civ. P. 6(b)(1)(B) sets forth the applicable legal standard the Court must apply. This rule provides that when an act may or must be done in a specified time the Court may, for good cause, extend the time on motion made after the time has expired if the party failed to act because of "excusable neglect." In determining whether a party has demonstrated excusable neglect the Court must consider the following five factors:

1) whether the inadvertence reflected professional incompetence such as ignorance of rules of procedure, 2) whether an asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court, 3) counsel's failure to provide for a readily foreseeable consequence, 4) a complete lack of diligence or 5) whether the inadvertence resulted despite counsel's substantial good faith efforts towards compliance.

Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988). The Supreme Court has explained that the "excusable neglect" inquiry is "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission," including, "the danger of prejudice to the [other party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395 (1993). After weighing all the relevant factors, the Court finds defendant does not establish excusable neglect for failing to file its motion, or an application to compel the requested depositions (see L. Civ. R. 37.1(a)(1)), before November 30, 2012. Defendant knew, or should have known, that all discovery applications should be made returnable before the discovery deadline expired. Defendant also had years to take the requested depositions before November 30, 2012. Plaintiff and her expert were not surprise witnesses. Further, defendant's actions evidence a complete lack of diligence. Not only did defendant wait years to try and take plaintiff's deposition, but defendant did not file its motion to compel until three months after the fact discovery deadline expired. Therefore, plaintiff's motion is denied because it cannot show substantial justification for filing its motion late.*fn4

Even if defendant could show substantial justification for its late motion the motion would still be denied. The reason is because defendant cannot show "good cause" to grant its motion. Pursuant to Rules 6(b)(1) and 16(b)(4) a scheduling order may be modified only upon a showing of "good cause". To establish good cause the moving party must demonstrate that it cannot reasonably meet the court's deadlines despite its diligence. Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986). The determination of good cause depends upon the diligence of the moving party. Spring Creek Holding Co. v. Keith, C.A. 02-cv-376, 2006 WL 2403958, at *3 (D.N.J. Aug. 18, 2006). The moving party has the burden of demonstrating that despite its diligence it could not reasonably have met the Scheduling Order deadline. Id. (citing Hutchins v. United Parcel Service, Inc., C.A. 01-1462, 2005 WL 1793695, at *3 (D.N.J. July 26, 2005)). Extensions of time without good cause would deprive courts of the ability to effectively manage cases on their overcrowded dockets and severely impair the utility of Scheduling Orders. Koplove, 795 F.2d at 18. Further, as stated in Dag Enterprises, Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 104 (D.D.C. 2005):

A Scheduling Order is "intended to serve as 'the unalterable road map (absent good cause) for the remainder of the case.'" Olgyay v. Soc. for Envtl. Graphic Design, Inc., 169 F.R.D. 219, 220 (D.D.C. 1996)(quoting Final Report of the Civil Justice Reform Act Advisory Group of the United States District Court for the District of Columbia at 39 (Aug. 1993)). "A scheduling order 'is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.'" Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)(quoting Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)). Indeed, ...

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