Sundance, LLC et al v. SE Property Holdings, LLC
ORDER denying 67 Motion to Re-open Discovery. Signed by Chief Judge William H. Steele on 2/19/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SUNDANCE, LLC, et al.,
SE PROPERTY HOLDINGS, LLC,
) CIVIL ACTION 14-0115-WS-C
Plaintiff Tammy Carter, as administratrix of the estate of Charles H.
Trammel (“Carter”), has filed a motion to re-open discovery. (Doc. 67).1 The
defendant has filed a brief in opposition, (Doc. 69), and the motion is ripe for
The plaintiffs, including Carter, initiated litigation against the defendant in
state court. The defendant removed the action and, in March 2014, filed a
counterclaim for breach of contract, seeking recovery thereunder of certain
attorney’s fees. (Doc. 3 at 17-18; Doc. 10 at 12). In May 2014, the Magistrate
Judge entered a Rule 16(b) scheduling order that established certain deadlines.
(Doc. 21). These include a discovery completion date of January 23, 2015 and a
dispositive motions deadline of February 13, 2015. (Id. at 1, 3-4). Carter
conducted no discovery concerning the defendant’s counterclaim, either before or
after the Court granted the defendant’s motion for summary judgment as to the
plaintiffs’ claims in December 2014. (Doc. 51).
In the original and amended complaint, the administratrix’s name is given as
“Tammy Carter.” (Doc. 1-1 at 3; Doc. 27 at 1-2). In her motion, she identifies herself as
“Tammy Center.” (Doc. 67 at 1). Because the pleadings cannot be amended by motion,
the Court refers to the movant as “Carter.”
On February 3, 2015, the defendant moved for summary judgment on its
counterclaim. (Doc. 61). Carter says she was “surprise[d]” by the magnitude of
the fees claimed,2 because she believed (and still believes) that the agreements on
which the defendant relies for a contractual obligation to pay its attorney’s fees
either do not extend such an obligation to the present situation or, at least, limit
such fees to a “not substantial” amount. (Doc. 67 at 3-5, 7). Galvanized by the
revelation that the defendant is seeking a substantial recovery, Carter filed the
The Rule 16(b) scheduling order warns the litigants that requests for
extensions of the discovery period “will be viewed with great disfavor and will not
be considered except upon a showing (1) that extraordinary circumstances require
it and (2) that the parties have diligently pursued discovery.” (Doc. 21 at 1
(emphasis omitted)). Carter accepts it as her burden to make such a showing.
(Doc. 67 at 6).
No extraordinary circumstances are presented here. The existence of the
counterclaim has been known to Carter since March 2014, and she has known
since May 2014 that she was required to complete her discovery regarding the
counterclaim by January 23, 2015. All Carter has shown is that she has been
recently disabused of her untested assumption that the counterclaim does not
involve enough money to justify conducting discovery. The very purpose of
discovery, however, is to allow the parties to find the facts and make decisions
based on them rather than supposition.3
The discovery deadline is contained in a Rule 16(b) scheduling order. Such
an order “must limit the time to … complete discovery,” and such “[a] schedule
Apparently, in excess of $70,000. (Doc. 67 at 7). Carter learned the amount
claimed on January 29, 2015, when her lawyer received a response to his informal
request for such information. (Id.).
A single interrogatory, with its obligation of seasonable supplementation, would
have sufficed to reveal that the defendant was incurring attorney’s fees subject to its
counterclaim at an alarming rate.
may be modified only for good cause and with the judge’s consent.” Fed. R. Civ.
P. 16(b)(3)(A), (4). “This good cause standard precludes modification unless the
schedule could not ‘be met despite the diligence of the party seeking the
extension.’” Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)
(quoting Fed. R. Civ. P. 16 advisory committee notes). “The lack of diligence that
precludes a finding of good cause is not limited to a plaintiff who has full
knowledge of the information with which it seeks to amend its complaint before
the deadline passes. That lack of diligence can include a plaintiff’s failure to seek
the information it needs to determine whether an amendment is in order.”
Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 (11th Cir.
2009).4 Carter failed to seek the information she needed to determine whether to
pursue additional discovery concerning the defendant’s counterclaim, and her lack
of diligence precludes her from demonstrating good cause to re-open discovery.5
For the reasons set forth above, Carter’s motion to re-open discovery is
DONE and ORDERED this 19th day of February, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
Because both are covered by Rule 16(b), the same principles that govern
motions to amend the pleadings govern motions to extend or re-open discovery. E.g.,
Rowell v. Metropolitan Life Insurance Co., 579 Fed. Appx. 805, 806-07 (11th Cir. 2014).
Carter suggests that the defendant would not be prejudiced by a re-opening of
discovery. (Doc. 67 at 6). “Although this may be the case, it is not relevant to her failure
to show good cause.” Jackson v. United Parcel Service, Inc., ___ Fed. Appx. ___, 2014
WL 6476948 at *3 (11th Cir. 2014).
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