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Arleigh Spencer v. International Shoppes

August 16, 2011

ARLEIGH SPENCER, PLAINTIFF,
v.
INTERNATIONAL SHOPPES, INC. AND MICHAEL HALPERN, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:

MEMORANDUM AND ORDER

I have reviewed the letter briefs submitted by the parties in response to my previous order [DE 149]. Plaintiff requests that discovery be re-opened on a limited basis for the purpose of allowing the parties to conduct inquiries regarding Plaintiff's recent stroke which he asserts was directly related to the allegedly retaliatory state court litigation brought by Defendants. See DE 150. Defendants oppose the request on the grounds that Plaintiff will not be able to prove that the litigation caused the stroke and the discovery sought is irrelevant and prejudicial. See

DE 151. For the reasons set forth below, Plaintiff's motion to re-open discovery is GRANTED.

I. BACKGROUND

Plaintiff's Complaint, originally filed in May 2006, asserted various state and federal employment law claims. See DE 1. In March 2010, Judge Seybert granted Defendants' motion for partial summary judgment. DE 90. Discovery is closed and the parties have consented to my jurisdiction to conduct all proceedings and order the entry of judgment. Plaintiff's sole remaining claim is that Defendants unlawfully retaliated against him by filing the matter entitled Int'l Shoppes, Inc. v. Spencer, No. 10559/04 (Nassau Cty. Sup. Ct.) on July 28, 2004 (the "State Litigation").

The case was set to be tried earlier this year, but the trial was adjourned due to the trial of the State Litigation, among other reasons. The trial of the State Litigation concluded on July 5, 2011 and the parties are awaiting a verdict. See DE 147. Soon after the end of that trial, Plaintiff suffered a stroke. See id. On August 1, 2011, Plaintiff's counsel informed Defendants that Plaintiff was planning to introduce evidence of the stroke at trial and to seek damages based on the theory that the State Litigation caused the stroke. See id. Defendants sought relief from the Court barring the introduction of this evidence. DE 147. Plaintiff opposed the request. DE 148. I held a telephone conference with the parties on this issue and directed them to provide citations to cases which they believe support their arguments. DE 149. The parties filed supplemental letter briefs on August 11, 2011. DE 150, 151.

II. DISCUSSION

A party seeking to reopen discovery bears the burden of establishing good cause and discovery should not be extended when there was ample opportunity to pursue the evidence during discovery. See, e.g.,Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (denying further discovery when the party opposing summary judgment had a "fully adequate opportunity for discovery"); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 927 (2d Cir. 1985) (denying plaintiff's request to reopen discovery when plaintiff had "ample time in which to pursue the discovery that it now claims is essential"). Courts apply the following six-part test to analyze a request to reopen discovery:

1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence.

Pharmacy, Inc. v. Am. Pharm. Partners, Inc., No. CV 05-776, 2008 WL 441526 (E.D.N.Y. Sept. 24, 2008) (citations omitted). Each of these factors is addressed below.

A. Imminency of Trial Date

A trial in this action is scheduled for September 19, 2011. This factor weighs in favor of Defendants.

B. Defendants' Opposition to the Motion to Reopen Discovery

The request to reopen discovery is opposed by Defendants [DE 150]. Defendants contend that Plaintiff's motion to re-open discovery should be denied on the grounds that: 1) Plaintiff will not be able to establish a causal connection between the stroke and the State Litigation; 2) the discovery Plaintiff seeks is irrelevant; ...


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