RES Development Corporation v. Momentive Performance Materials, Inc.

Filing 128

ORDER denying 121 Motion to compel; denying 122 Motion for extension of time to complete discovery. Signed by Magistrate Judge Thomas B. Smith on 6/19/2012. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
RES DEVELOPMENT CORPORATION,
Plaintiff,
v.

Case No. 5:09-cv-491-Oc-10TBS

MOMENTIVE PERFORMANCE MATERIALS,
INC.,
Defendant.
_____________________________________/
ORDER
Pending before the Court are Plaintiff’s Motion to Compel Discovery (Doc. 121)
and Plaintiff’s Motion for Extension of Time to File Motion to Compel Discovery (Doc.
122), both of which were filed on May 25, 2012. Defendant has filed responses in
opposition. (Docs. 126, 127). The Court will address the motions in the order in which
they were filed.
The Court’s Case Management and Scheduling Order (“CMSO”) (Doc. 95)
established a May 3, 2012 deadline to complete discovery. The CMSO clearly states
that with respect to discovery matters:
the date set forth above is the final date discovery shall be completed. All requests
and motions pertaining to discovery shall be filed promptly so that the discovery
desired will be due prior to the completion date. Specifically, motions to compel
brought pursuant to Rule 37 must be filed no later than the close of discovery.
Despite this clear language, Plaintiff filed the instant motion to compel more than three
weeks after the discovery deadline. Plaintiff has not offered any compelling reason for
the Court to ignore its own Order. Accordingly, Plaintiff’s motion to compel is due to be
denied as untimely.

The Court is unpersuaded that it should amend the CMSO and re-open
discovery. Scheduling orders “control the subsequent course of the action unless
modified by a subsequent order,” Fed.R.Civ.P. 16(e), and may be modified only “upon a
showing of good cause.” Fed.R.Civ.P. 16(b). This good cause standard precludes
modification unless the schedule cannot “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’s note). Plaintiff has failed to
demonstrate good cause. The record shows Plaintiff’s failure to comply with the CMSO
resulted in large part from its own lack of diligence in pursuing discovery.
Finally, Plaintiff’s counsel is reminded that before filing a motion in a civil case,
he is required to “confer with counsel for the opposing party in a good faith effort to
resolve the issues raised by the motion.” See Local Rule 3.01(g). It appears the only
communication between the parties was a letter dated May 10, 2012, from Plaintiff’s
counsel asking Defendant to produce documents (Doc. 121-6) and defense counsel’s
letter in response (Doc. 121-7). These letters do not constitute a “good faith effort” to
resolve the dispute.
Accordingly, Plaintiff’s Motion to Compel Discovery (Doc. 121) and Plaintiff’s
Motion for Extension of Time to File Motion to Compel Discovery (Doc. 122) are both
DENIED.
IT IS SO ORDERED.

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DONE AND ORDERED in Ocala, Florida, on June 19, 2012.

Copies to all Counsel

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