United States District Court, N.D. New York
May 12, 2004.
JOSEPH H. PYKE, MAY P. COLE, CHARLES BENEDICT, PATRICIA A. BENEDICT JULIUS M. COOK, BEVERLY J. PYKE, EDWARD SMOKE, SELENA M. SMOKE, and MARGARET PYKE THOMPSON, all on behalf of themselves and all other persons similarly situated, Plaintiffs
MARIO CUOMO, THOMAS A CONSTANTINE, ROBERT B. LEU, and RONALD R. BROOKS, Defendants
The opinion of the court was delivered by: DAVID HOMER, Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Presently pending are (1) the request of plaintiffs for an order
compelling the continuation of the depositions of two witnesses and the
production of certain documents, and for leave to serve an expert witness
report, and (2) the request of defendants for an order compelling
plaintiffs to serve supplemental responses to fifteen contention
interrogatories. These requests were made and opposed in letters with
attachments from plaintiffs' counsel dated April 29, 2004 and from
defendants' counsel dated May 4, 2004. Oral argument was heard on May 6,
2004. For the reasons which follow, the respective requests of the
parties are denied in all respects.
Plaintiffs commenced this action in 1992 alleging that in 1989 and 1990
on the Mohawk Indian reservation known as the Akwesasne or St. Regis
Reservation, defendants, all present or former New York State government
officials, deprived plaintiffs of equal protection of the laws in
violation of 42 U.S.C. § 1983 and various state law provisions.
Specifically, plaintiffs allege that defendants failed to provide police
protection on the reservation because they are Native Americans. More
complete statements of the allegations underlying the complaint are set
forth in various opinions previously rendered in this case and
familiarity with those opinions is assumed. See, e.g., Pyke v. Cuono,
258 F.3d 107 (2d Cir. 2001); Pyke v. Cuomo, 209 F.R.D. 33 (N.D.N.Y. 2002)
Although this case has been pending for over twelve years, the facts
relevant to the pending discovery issues began in June 2001 when the Second Circuit Court
of Appeals vacated the district court's grant of summary judgment to
defendants and remanded for discovery and further proceedings. Pyke,
258 F.3d 107. Following a conference with counsel for all parties, a
Uniform Pretrial Scheduling Order (UPSO) was entered on October 16, 2001
establishing a schedule for progression of the case pursuant to
Fed.R.Civ.P. 16. Docket No. 110. Inter alia, that order established
October 11, 2002 as the deadline for completion of discovery and March
25, 2003 as the deadline for filing dispositive motions. Id
On August 8, 2002, plaintiffs' motion for class certification was
granted with the class certification limited to issues of liability.
Docket No. 123; Pyke, 209 F.R.D. 33. A conference with counsel for all
parties was then held at which the scheduling order was amended to extend
the time for completion of discovery as to liability to August 1, 2003
and dispositive motions as to liability to March 25, 2004. Docket No.
125. In a letter dated June 25, 2003, plaintiffs requested a second
extension of these deadlines by six months. This request was granted,
extending the discovery deadline for liability to January 31, 2004.*fn1
The order granting this extension stated, however, "[n]o further
extensions." Docket No. 131.
No further extensions were sought. However, by mutual agreement, the
depositions of certain witnesses, including that of defendant Thomas A.
Constantine ("Constantine") on February 12, 2004, were held after the
January 31, 2004 deadline. By letter-brief dated April 29, 2004,
plaintiffs requested an order (1) permitting them to continue the
deposition of Constantine and defendant Robert B. Leu ("Leu") for an additional day
each beyond the seven hours allowed by Fed.R.Civ.P. 30(d)(2); (2)
compelling the production of certain documents withheld by defendants
under claims that they were protected from disclosure by the
attorney-client privilege; and (3) granting plaintiffs leave to serve an
expert witness report on the issue of liability. Defendants opposed the
request and, in the alternative, requested that if plaintiffs' requests
were granted, defendants be granted an order compelling plaintiffs to
supplement their responses to defendants' contention interrogatories.
As a threshold matter, defendants contend that plaintiffs' request is
untimely. Plaintiffs contend that if untimely, their request should
nevertheless be granted because they have demonstrated good cause to
extend the applicable deadlines.
A. Depositions and Document Production
The final deadline for completion of discovery was January 31, 2004.
Docket No. 131. Under N.D.N.Y.L.R. 7.1(d)(8), "[a]ny motion to compel
discovery authorized by these Rules shall be filed no later than TEN . .
. DAYS after the discovery cut-off date" (emphasis in original);*fn2 see
also N.D.N.Y.L.R. 16.2 ("Motions to compel discovery shall be filed and
served no later than ten (10) days after the discovery cut-off."). Thus,
excluding Saturdays and Sundays, the time for the parties to move to
compel discovery expired on February 13, 2004. Plaintiffs' request here
was made and received on April 29, 2004. Plaintiffs' request as to the
depositions and document production was thus untimely by seventy-six
Plaintiffs contend that although their request was over two months
late, good cause exists to extend the applicable deadlines and to
consider their requests. The UPSO which plaintiffs seek to modify was
entered pursuant to Rule 16(b). That rule provides that "[a] schedule
shall not be modified except upon a showing of good cause. . . ." See
also N.D.N.Y.L.R. 16.1(f) ("Deadlines. . . shall be strictly enforced and
shall not be modified by the Court, even upon stipulation of the
parties, except upon a showing of good cause."); UPSO at ¶ 1 (same);
Carnrite v. Granada Hosp. Group. Inc., 175 F.R.D. 439, 448 (W.D.N.Y.
1997)(Rule 16(b) rather than Rule 6(b) governs motions to extend
"`[G]ood cause' requires a greater showing than 'excusable neglect.'"
Broitman v. Kirkland, 86 F.3d 172, 175 (10th Cir. 1996). At a minimum,
good cause requires a showing by the moving party of an objectively
sufficient reason for extending a deadline such that "the deadlines
cannot reasonably be met despite the diligence of the party needing the
extension." Robinson v. Town of Colonie, No. 91-CV-1355, 1993 WL 191166,
at *3 (N.D.N.Y. June 3, 1993)(McCurn, J.); see also Julian v. Equifax
Check Servs., Inc., 178 F.R.D. 10, 16 (D. Conn. 1998); Pulsecard, Inc.
v. Discover Card Servs., Inc., 168 F.R.D. 295, 301 (D. Kan. 1996). The
inquiry focuses on the moving party's reason for requesting the extension. Julian, 178 F.R.D. at
16. The mistake or inadvertence of counsel will not support a finding of
good cause. See Broitman, 86 F.3d at 175; Lory v. General Elec. Co., 179
F.R.D. at 88; Carnrite, 175 F.R.D. at 448.
Here, plaintiffs contend that good cause exists on several grounds.*fn3
First, plaintiffs contend that the facts that their counsel is acting pro
bono and that the action is brought on behalf of a class of potentially
4,000 members provides good cause. These facts, however, were both
considered when the original scheduling order and the two lengthy
extensions were entered and granted. The UPSO allowed the parties almost
twelve months to complete discovery. Docket No. 110. The two extensions
increased this period by an additional thirteen months. Docket Nos. 125,
131. The guideline in this district for civil cases is that they be
completed within eighteen months of the filing of the complaint,
including motions and trial. See N.D.N.Y. Gen. Order 25 at § XI. Thus,
even assuming that this case did not actually commence until the filing
of the UPSO, plaintiffs were afforded substantially in excess of the
usual period for discovery in this case. Moreover, plaintiffs were
explicitly advised by the second extension order without ambiguity that
no further extensions would be granted. See Bruce v. County of
Rensselaer, No. 02-CV-0847, No. 2003 WL 22436281, at *2 (N.D.N.Y. Oct.
20, 2003) (McAvoy, J.) (affirming denial of fourth stipulated order
extending deadline for filing class certification motion where third
extension advised that no further extensions would be granted and noting
that"[t]he responsibility and consequence of failing to meet a deadline
falls upon the party that missed the deadline."). Finally, while
counsel's pro bono status and the existence and size of the class, as
indicia of the complexity of a case, should be considered in scheduling, those factors were considered here in determining the
original schedule in the UPSO and in granting the two lengthy
extensions. Those factors do not give license to circumvent the
reasonable and properly noticed final discovery deadline here.
Plaintiffs also contend that difficulties in scheduling depositions
provide good cause. It appears from the record that document discovery
was substantially completed by June 2002 but that the depositions in
question were not requested until November 11, 2003. This would have
permitted the parties almost three months to complete the depositions
before the close of discovery. However, scheduling difficulties among
counsel and the witnesses led the parties to agree among themselves and
without Court approval that the depositions would be taken after the
discovery deadline. The admonition of N.D.N.Y.L.R. 16.2 bears directly on
Counsel are advised to initiate discovery requests and
notice depositions sufficiently in advance of the
[discovery] cut-off date to comply with this Rule.
Discovery requests that call for responses or
scheduled depositions after the discovery cut-off will
not be enforceable except by order of the court for
good cause shown.
The parties were free to schedule depositions after the discovery
deadline had passed to accommodate their schedules and those of the
In doing so, however, the parties assumed the risks that
(a) their adversary would not comply with the discovery demands, and (b)
they would need Court intervention to compel discovery after the
deadline. The risk regarding Court intervention was particularly great
here where the parties were on notice that no further extensions would be
granted. Given the lengthy period of discovery in this case and the
notice of a final, unextendable deadline, the choice to accommodate
schedules in the circumstances presented here does not constitute good cause for extending
further the deadlines for discovery and motions to compel.
Finally, plaintiffs contend that they delayed seeking the relief
requested herein so that all issues could be raised in a single,
"omnibus" request to save the time and expense of the parties and the
Court. Given the final discovery deadline after a lengthy period of
discovery, plaintiffs' unilateral decision to delay raising any issue
until months beyond the deadline is unjustifiable. It is unclear how
delay saved any time or expense here for either the parties or the
Court. Moreover, given notice of the final discovery deadline, it was
incumbent upon plaintiffs to seek whatever relief they wished to pursue
as expeditiously as possible. See Bruce, 2003 WL 22436281, at *3 (holding
that delaying request for extension of deadline until last day was not
justified by parties' settlement discussions even though settlement would
have reduced time and expense of parties and court). This ground thus
also fails to provide good cause to extend the deadlines.
Plaintiffs' request for an order compelling the further depositions of
Constantine and Leu and the production of documents was untimely and
plaintiffs have not established good cause to extend the applicable
deadlines. Accordingly, plaintiffs' request for such relief is denied.
B. Expert Witness Report
Under the UPSO, plaintiffs were required to serve any expert witness
reports no later than ninety days before the discovery deadline. UPSO at ¶ 6(a)(1). When
the discovery deadline was extended to January 31, 2004, this made the
deadline for plaintiffs' expert disclosure November 2, 2003. In their
letter-brief of April 29, 2004, plaintiffs requested leave to serve an
expert report concerning the availability to defendants of police tactics
other than those considered by defendants. At oral argument, plaintiffs
further requested an additional sixty days within which to serve such a
report. Plaintiffs' request as to an expert witness was thus untimely by
179 days as of April 29, 2004 and by 247 days after the requested sixty
Plaintiffs contend that although their request was six to eight months
late, good cause exists to extend the deadline. As discussed supra in
subsection A(2), the "good cause" standard of Fed.R.Civ.P. 16(b) governs
here. Plaintiffs contend that good cause exists because the need for an
expert witness on the availability of certain police tactics did not
appear until the depositions of the defendants were completed after the
discovery deadline had passed. Plaintiffs' contention fails for at least
First, plaintiffs knew or should have known that the question of police
tactics available to defendants was a central issue in the case from the
time the defendants filed their answer in 1992. Docket Nos. 4, 6. It also
should have appeared to plaintiffs from the internal documents discovered
by plaintiffs by June 2002. Thus, contrary to their assertions,
plaintiffs received notice of this issue well before the depositions of
the defendants were completed in 2004.
Second, given the deadline for expert disclosure, it was incumbent upon
plaintiffs to complete relevant fact discovery sufficiently in advance of that
deadline to permit time to obtain and disclose an expert witness report.
By delaying completion of discovery, plaintiffs forewent use of such
discovery in determining and obtaining expert witness reports.
Finally, if plaintiffs' request here is granted, it would effectively
extend the discovery deadline by at least eight months. Plaintiffs have
not yet even obtained an expert witness to render a report and stated at
oral argument that they would need sixty additional days to serve an
expert witness report. Defendants would then be entitled to at least
forty-five days to serve an opposing report and both sides would then be
entitled to an additional forty-five days at a minimum to depose those
experts and for plaintiffs to serve any rebuttal expert report. UPSO at
¶ 6(a)(2)-(4). In the circumstances of this case, such a lengthy delay is
unsupportable in light of the delays already experienced in this case and
the establishment of a final deadline for all discovery in the second
extension order. See Bruce, 2003 WL 2243628, at *3 (finding insufficient
cause for extension "in light of the Court's interest in maintaining
control over its docket, the three prior extensions and the stern warning
that there would be no further extensions.").
Plaintiffs' request for an order extending the deadline for plaintiffs
to serve an expert witness report was untimely and plaintiffs have not
established good cause to extend that deadline. Accordingly, plaintiffs'
request for such relief is denied. C. Defendants' Request to Compel Discovery
Defendants request that if plaintiffs' requested relief is granted,
defendants be granted an order compelling plaintiffs to supplement
responses to fifteen contention interrogatories. Defendants agree that
their request here is untimely. Accordingly, because plaintiffs' request
for relief is denied herein and because defendants' request is similarly
untimely, defendants' request is denied.
For the reasons stated above, it is hereby ORDERED that:
1. Plaintiffs' request for an order compelling certain discovery from
defendants and for leave to serve an expert witness report are DENIED in
all respects; and
2. Defendants' request for an order compelling plaintiffs to serve
supplemental responses to fifteen contention interrogatories is DENIED.
IT IS SO ORDERED.