Zurich American Insurance Company v. European Tile and Floors, Inc. et al

Filing 61

ORDER denying 58 motion to extend discovery. Signed by Magistrate Judge Amanda Arnold Sansone on 2/16/2017. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ZURICH AMERICAN INSURANCE
COMPANY, as successor by merger to
MARYLAND CASUALTY COMPANY,
Plaintiff,
v.

Case No.: 8:16-cv-729-T-33AAS

EUROPEAN TILE AND FLOORS, INC.
and ROBERT A. DALZELL, INC.,
Defendants.
______________________________________/
ORDER
Before the Court are Defendant Robert Dalzell, Inc.’s Motion for Leave to Extend the
Discovery Period to February 28, 2017 to Depose Eric L. Samore and Zurich American Insurance
Company’s Opposition to Robert A. Dalzell, Inc.’s Motion for Leave to Extend the Discovery
Period to February 28, 2017 to Depose Eric L. Samore. (Docs. 58, 60).
A.

BACKGROUND
Plaintiff Zurich American Insurance Company brought this action against Defendants for

breach of contract and declaratory judgment. (Doc. 36). On May 2, 2016, the Honorable Virginia
M. Hernandez Covington, United States District Judge, entered a Case Management and
Scheduling Order (“CMSO”), which set forth the following case deadlines: expert disclosures due
by October 7, 2016 (Plaintiff) and October 21, 2016 (Defendants), discovery deadline of December
9, 2016, summary judgment deadline of January 31, 2017, and a July 2017 trial term. (Doc. 34).
On September 26, 2016, Plaintiff filed an unopposed motion to enlarge the deadlines for
disclosure of the parties’ expert reports. (Doc. 53). This Court granted the motion on September
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27, 2016, and set forth the following deadlines: disclosure of expert reports due by December 16,
2016 (Plaintiff) and December 30, 2016 (Defendants), and completion of expert depositions by
January 20, 2017. (Doc. 54). Plaintiff timely disclosed the expert report of Eric L. Samore on
December 16, 2016. (Doc. 60, p. 4). Defendants did not identify any experts. (Id.).
On January 30, 2017, ten days after the deadline for completion of expert depositions and
on the eve of the summary judgment deadline, Defendant Robert A. Dalzell, Inc. (“Defendant
Dalzell”) issued a deposition notice, along with the Rule 45 Subpoena and its attached six-page
Rider listing documents for production by Mr. Samore. (Doc. 60, Ex. A). The deposition was
noticed to take place on February 21, 2017 in Chicago, Illinois. (Doc. 60, Ex. A). The following
day, Plaintiff timely filed its motion for summary judgment. (Doc. 57).
On February 6, 2017, Defendant Dalzell filed the instant Motion for Leave to Extend the
Discovery Period to February 28, 2017 to Depose Eric L. Samore (“Motion to Extend
Discovery”).1 (Doc. 58). On February 10, 2017, as directed by the Court, Plaintiff filed an
opposition to the Motion to Extend Discovery. (Docs. 59, 60). Accordingly, this matter is now
ripe for review.
II.

ANALYSIS
“A schedule may be modified only for good cause and with the judge’s consent.” Fed. R.

Civ. P. 16(b)(4); see also Fed. R. Civ. P. 6(b)(1) (“When an act may or must be done within a

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The Court notes that Defendant Dalzell’s Motion to Extend Discovery fails to comply with Local
Rule 3.01(g), M.D. Fla., and this, in and of itself, is grounds for denial. (Doc. 34, p. 24) (“The Court will
deny motions that fail to include an appropriate, complete Rule 3.01(g) certificate.”). In addition, not only
did counsel fail to confer with opposing counsel with respect to this motion, the deposition at issue was
unilaterally set. (Doc. 60, Ex. B). The Court will not tolerate the practice of counsel unilaterally setting
depositions. Although the Court’s analysis could end here, the Court will address to the merits of the
Motion to Extend Discovery.
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specified time, the court may, for good cause, extend the time[.]”). In addition, because Defendant
Dalzell’s Motion to Extend Discovery was filed after the expiration of the deadline, it is also
required to demonstrate “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Because Defendant
Dalzell cannot show good cause or excusable neglect, the Court denies the Motion to Extend
Discovery.
A.

Good Cause

The CMSO entered in this action specifically addresses the “good cause” requirement as
follows: “Failure to complete discovery within the time established by this Order shall not
constitute cause for continuance.” (Doc. 34, p. 5). In addition, Local Rule 3.09(b), M.D. Fla.,
permits the Court to extend a discovery deadline only when it is “not the result of lack of diligence
in pursuing such discovery.”
Here, the sole reason that Defendant Dalzell did not timely schedule Mr. Semore’s
deposition is that counsel “failed to calendar” the January 20, 2017 deadline. (Doc. 58, p. 2).
However, Defendant Dalzell was fully aware of Mr. Semore’s timely disclosed expert report and
apparently even addressed it at the mediation on December 20, 2016. (Doc. 60, p. 4). In addition,
even though counsel forgot to calendar the January 20, 2017 deadline, the summary judgment
deadline was rapidly approaching.

Thus, Defendant Dalzell should have been diligent in

completing discovery in anticipation of that deadline. Therefore, Defendant Dalzell cannot
demonstrate diligence in pursuing discovery. See, e.g., Rumbough v. Experian Info. Solutions,
Inc., No. 6:12-cv-811, 2013 WL 11325232, *2 (M.D. Fla. Oct. 4, 2013); Homes & Land Affiliates,
LLC v. Homes & Loans Magazine LLC, No. 6:07-cv-1051, 2008 WL 4186989, *1 (M.D. Fla. Sept.
8, 2008).
In light of the foregoing, the Court finds that Defendant Dalzell has not demonstrated good
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cause to extend the discovery deadline. Although the Court’s analysis could end here, the Court
will proceed to discuss the requirement of excusable neglect.
B.

Excusable Neglect

As stated above, because Defendant Dalzell’s Motion to Extend Discovery was brought
after the expiration of the discovery deadline, Defendant Dalzell also must establish that it failed
to depose Mr. Samore because of “excusable neglect”. Fed. R. Civ. P. 6(b)(1)(B). Excusable
neglect is determined after considering the following four factors: (1) the danger of prejudice to
the nonmovant; (2) the length of the delay and the impact on judicial proceedings; (3) the reason
for the delay, including whether it was within the reasonable control of the movant; and (4) whether
the movant acted in good faith. Ashmore v. Sec’y, Dept. of Transp., 503 Fed. App’x 683, 685-86
(11th Cir. 2013).
With respect to the first factor, the nonmoving party is “prejudiced by additional discovery”
where it has “already filed its motion for summary judgment.” Id. at 686. In addition, where the
extension will lead to other pretrial or trial deadlines being modified, courts will find that the
second factor also weighs against a finding of excusable neglect. Wright v. Dyck-O’neal, Inc., No.
2:15-cv-249, 2016 WL 3912050, *3 (M.D. Fla. Jun. 27, 2016). Here, Defendant Dalzell issued
the deposition notice ten days after the deadline for completion of expert depositions and on the
eve of the summary judgment deadline. (Doc. 60, Ex. A). The following day, Plaintiff timely
filed its motion for summary judgment. (Doc. 57). Thus, the first two factors weigh in favor of
Plaintiff and against an extension of the discovery deadline.
With respect to the third factor, overlooking deadlines and failing to conduct discovery are
within the movant’s control and do not constitute excusable neglect. Blake v. Enhanced Recovery
Co., No. 3:10-cv-1178, 2011 WL 3625594, *2 (M.D. Fla. Aug. 17, 2011). As to the last factor,
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good faith is not found where the party is merely ignorant of a court’s rules and deadlines. Wright,
2016 WL 3912050 at *5. Again, the sole reason that the deposition of Mr. Semore was not timely
scheduled and taken is because counsel failed to calendar the discovery deadline. Thus, the third
and fourth factors likewise weigh in favor of Plaintiff and against an extension of the discovery
deadline.
Therefore, for the foregoing reasons, the Court finds that Defendant Dalzell has not
demonstrated excusable neglect warranting an extension of the discovery deadline.
III.

CONCLUSION
Accordingly and upon consideration, it is ORDERED that:
Defendant Robert Dalzell, Inc.’s Motion for Leave to Extend the Discovery Period to

February 28, 2017 to Depose Eric L. Samore (Doc. 58) is DENIED.
DONE AND ORDERED in Tampa, Florida on this 16th day of February, 2017.

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