United States District Court, E.D. New York
October 17, 2005.
DAVID F. SCHWARTZ and JANE S. SCHWARTZ, Plaintiffs,
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
DECISION AND ORDER
Presently before the Court are the plaintiffs' objections to
the September 12, 2005 Order ("Order") by United States
Magistrate Judge James Orenstein denying the plaintiff's request
for a 30-day extension of the September 12, 2005 discovery
deadline set forth in Judge Orenstein's Case Management and
Scheduling Order ("Scheduling Order") dated January 6, 2005. II. BACKGROUND
David F. Schwartz and Jane S. Schwartz (collectively, the
"plaintiffs") commenced this action against Metropolitan Property
and Casualty Insurance Company (Metropolitan or the "defendant")
in the Supreme Court of the State of New York, County of Suffolk,
seeking to recover the proceeds of an insurance contract. The
action was removed to this Court by the defendant on October 25,
2004 on the basis of diversity jurisdiction under Title 28 of the
United States Code, §§ 1332 & 1441.
On January 6, 2005, the parties were present at an initial
conference before Judge Orenstein. On the same day, Judge
Orenstein entered the Scheduling Order requiring the parties to
complete all discovery by September 12, 2005. This order gave the
parties nine months to conduct discovery. The Scheduling Order
also provides that "no request for an extension of the discovery
deadline submitted less than 30 days before the scheduled close
of discovery will be granted absent extraordinary circumstances";
and that any request for modification of the scheduling order
must be submitted in writing, in accordance with Judge
Orentstein's individual rules, and in accordance with
Administrative Order 2004-08 (requiring electronic filing). Judge
Orenstein's Individual Rule II.D states that a party submitting a
request by fax must first file the request electronically via
Electronic Case Filing ("ECF"). By letter dated September 9, 2005, the plaintiffs' attorney
sought a 30-day extension of the September 12 discovery deadline
because he failed to secure a date on which to conduct
depositions during the nine month period allotted for discovery.
The plaintiffs' request was made by fax and was not filed
electronically until four days later on September 13, 2005. By
Order dated September 12, 2005 Judge Orenstein denied the
plaintiffs' request for an extension of time because "[t]he
application was made by fax, and was not filed electronically, in
violation of Administrative Order 2004-08 and also in violation
of Paragraph VII of the Case Management and Scheduling Order in
this case" and "the application was made less than 30 days before
the scheduled close of discovery and states no extraordinary
A. Standard of Review
Pre-trial discovery issues are generally considered
nondispositive matters. Thomas E. Hoar, Inc. v. Sara Lee Corp.,
900 F.2d 522, 525 (2d Cir. 1990). When considering objections to
a magistrate judge's ruling on a nondispositive matter, a
district judge will modify or set aside any portion of the
magistrate's order found to be "clearly erroneous or contrary to
law." Rule 72(a); see also 28 U.S.C. § 636(b)(1)(A) ("A judge
of the court may reconsider any [nondispositive] pretrial matter
. . . where it has been shown that the magistrate judge's order
is clearly erroneous or contrary to law."). A finding is clearly erroneous if "the reviewing court on
the entire evidence is left with the definite and firm conviction
that a mistake has been committed." United States v. U.S. Gypsum
Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948);
United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004). An
order is contrary to law "when it fails to apply or misapplies
relevant statutes, case law, or rules of procedure." Catskill
Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86
(S.D.N.Y. 2002) (citation omitted).
A party seeking to overturn a discovery order therefore bears a
heavy burden. See Com-Tech Assocs. v. Computer Assocs. Int'l,
753 F. Supp. 1078, 1098-99 (E.D.N.Y. 1990), aff'd,
938 F.2d 1574 (2d Cir. 1991). "Pursuant to this highly deferential
standard of review, magistrates are afforded broad discretion in
resolving discovery disputes and reversal is appropriate only if
their discretion is abused." Universal Acupuncture Pain Servs.,
P.C. v. State Farm Mut. Auto. Ins. Co., No. 01 CV 7677, 2002 WL
31309232, at *1 (S.D.N.Y. Oct. 15, 2002) (citing Lanzo v. City
of New York, No. 96 CV 3242, 1999 WL 1007346, at *2 (E.D.N.Y.
Sept. 21, 1999)).
B. The September 12, 2005 Order
The plaintiffs' attorney does not dispute that his request for
an extension of the discovery deadline violates Judge Orenstein's
Scheduling Order. Nor does the plaintiffs' counsel offer any
legal argument as to why Judge Orenstein's Order denying his
application for an extension is clearly erroneous or contrary to
law. In fact, the plaintiff does not recite the appropriate standard of review.
Rather, the plaintiff offers that Judge Orenstein's Order is
"unduly harsh." At most, the explanations given by the
plaintiffs' lawyer as to why he failed to comply with the
Scheduling Order exhibit a lack of diligence on his behalf in
attempting to comply with the requirements of the Court.
Specifically, this last minute application was necessitated by
plaintiffs' counsel's "simple inability" to confirm that his
client would be available on September 7 for the defendant's
deposition "due to the Labor Day holiday and August vacations."
The plaintiff's lawyer has admitted that this failure was his own
fault and that it was "not extraordinary." Lastly, the
plaintiffs' attorney admits that he "[has] no excuse for not
filing [his] application electronically on September 9." Based on
the foregoing, the Court finds that it was within Judge
Orenstein's discretion to deny the plaintiffs' request for an
extension of time within which to complete discovery.
Accordingly, the plaintiffs' objections are denied.
Based on the foregoing, it is hereby
ORDERED, that the Petitioner's objections to Judge
Orenstein's Order dated September 12, 2005 are DENIED.
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