The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge
RBS Citizens, N.A. ("Citizens"), one of the two named defendants in this action, moves for relief from the court's case management order issued in the case nearly one year ago, and since modified once at the joint request of the parties, in order to permit discovery to continue and to allow Citizens to make expert witness disclosures which were due under the original pretrial scheduling order on January 2, 2009, a date which was later extended to April 1, 2009. Citizens also requests an order compelling plaintiff to respond to a written document discovery demand served well after the April 1, 2009 deadline for the close of fact discovery.*fn1
Plaintiff Leonard B. Wilcox vigorously opposes Citizens' motion and requests that the court award costs and attorneys' fees incurred in defending against it.
For the reasons set forth below, Citizens' motion will be denied, though without any award of costs or attorneys' fees.
Plaintiff commenced this action on May 29, 2008. Dkt. No. 1.
Plaintiff's claims arise from the alleged loss of in excess of $400,000 from a safe deposit box maintained by Wilcox with Citizens. Id. In his complaint plaintiff has sued both Citizens and one of its former employees, Thomas Cararo, and seeks recovery of his lost money under a variety of theories including, inter alia, negligence, breach of fiduciary duty, fraud, and misappropriation. Id.
An in-person pretrial conference was held in the action on July 18, 2008 in Binghamton, New York pursuant to Rule 16 of the Federal Rules of Civil Procedure. Appearing at that conference were counsel for plaintiff and Citizens.*fn2 As a result of the conference a uniform pretrial scheduling order ("UPSO") was issued by the court setting forth various deadlines to govern the progression of the case; the deadline dates in that scheduling order were set based upon discussions held during that proceeding and a civil case management plan jointly submitted by the parties. Dkt. Nos. 7, 13. Included within the UPSO was an April 1, 2009 deadline for the completion of discovery, the requirement that dispositive motions be filed on or before June 1, 2009, and a scheduled trial date of October 19, 2009.*fn3 Dkt. No. 13. The UPSO also included provisions governing expert disclosure, requiring that plaintiff serve expert reports no later than January 2, 2009, and that defendants respond with their expert disclosures on or before February 16, 2009, with an additional provision for rebuttal expert reports to be served by March 2, 2009. Id. During the pretrial conference the parties were advised that the schedule was firm, although I did acknowledge some potential flexibility in connection with the mediation deadline, which was initially set at January 31, 2009.
Based upon reports from the parties provided during subsequent, periodic telephone conferences conducted by the court in connection with the action, it quickly became clear that they were having difficulty in conducting pretrial discovery. In a conference held on October 9, 2008, for example, the parties reported the development of certain disputes related to discovery. In response I encouraged the attorneys to work matters out, and expressly noted that the established schedule was in jeopardy, again reminding the parties that it was firm and that plaintiff's expert disclosure was due on January 2, 2009.
Another conference was held in connection with the action by telephone on January 29, 2009. During that conference the parties jointly requested an extension of the expert disclosure deadlines, asking that I extend the time for plaintiff to make expert disclosure until April 1, 2009, with defendant's time to respond being extended to May 1, 2009, and rebuttal expert reports due May 8, 2009, with the further provision that all expert depositions be conducted by June 1, 2009. That request was granted, both orally and in a subsequent text order, though the parties were reminded that the motion filing deadline was and would remain at June 1, 2009. Defendant Citizens made no mention during that conference of encountering any difficulties in obtaining pretrial discovery from the plaintiff.
At the request of plaintiff's counsel, a subsequent telephone conference was held on February 26, 2009 to address certain additional discovery issues which had arisen between the parties. During that conference plaintiff reported that he was unsure whether there would be any expert retention, and Citizens gave the court no indication that it might engage an expert. At no time during that conference did Citizens request an extension of the deadline dates set forth in the governing UPSO or apprise the court of the existence of any discovery-related issues which it wished to raise.*fn4
On April 16, 2009, again as a result of plaintiff's request, a telephone conference was conducted to address additional discovery issues. During that conference Citizens made no request regarding the UPSO deadline dates, as amended, particularly the April 1, 2009 deadline for completion of fact discovery or the expert disclosure sequence.
In a follow-up telephone conference held on May 7, 2009, the parties reported having made progress in connection with the issues raised by plaintiff's counsel during the previous conference. In the course of the May 7, 2009 conference Citizens raised an issue concerning plaintiff's refusal to respond to a document discovery demand only recently served upon Wilcox. I responded by noting that the request was untimely, but advised Citizens that I would give it the opportunity to brief the issue and attempt to establish good cause for overlooking its lateness. During that conference, significantly, the parties reported that experts would not be retained in the case.
On May 19, 2009, counsel for Citizens filed with the court a letter advising that it had not yet been able to identify expert witnesses in light of what it characterized as the "ongoing" nature of discovery and indicated that its retention of experts hinged upon receiving responses from plaintiff to the untimely, second document discovery request, served after the close of discovery. Dkt. No. 50. Addressing the fact that the deadline for fact discovery had closed on April 1, 2009, Citizens' counsel noted that "as a practical matter, discovery was and is ongoing", adding that Citizens is "working diligently to move this case forward, but [it] cannot identify an expert until discovery is completed." Id. The letter requested ...