Porritt et al v. Erico International Corporation

Filing 34

ORDER DENYING 31 Motion to Re-open Discovery; and finding as MOOT 30 Motion for Extension of Time to File Response to Motion for Summary Judgment. See attached Order for details. Signed by Magistrate Judge Stephen C. Williams on 5/25/2011. (ehb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTINA PORRITT and MARK
HESS,
Relators,
vs.
ERICO INTERNATIONAL
CORPORATION,
Defendant.

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Case No. 10−cv−0545−JPG−SCW

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
On July 22, 2010, Christina Porritt and Mark Hess (“Relators”) filed this qui tam action for
false patent marking under 35 U.S.C. § 292 against Defendant Erico International Corporation
(“ERICO”) for allegedly falsely advertising and/or marking articles with expired patents. On
September 20, 2010, ERICO responded with a Motion to Dismiss the Complaint alleging that
Relators’ failed to satisfy the pleading requirements contained in FEDERAL RULES

OF

CIVIL

PROCEDURE 8(a) and 9(b) (see Doc. 23). This motion remains pending before District Judge J. Phil
Gilbert.

That same day, Magistrate Judge Proud entered a Scheduling and Discovery Order

requiring that all discovery be completed by April 7, 2011, and dispositive motions be filed by April
22, 2011 (Doc. 25). On April 22, 2011, ERICO filed a Motion for Summary Judgment pursuant to
FED. R. CIV. P. 56, which also is pending before Judge Gilbert (Doc. 29).
Now before this Court are Relators’ Motion for Additional Time to Respond to Defendant’s
Motion for Summary Judgment (Doc. 30), and Motion to Re-open Discovery and Enter New
Scheduling Order (Doc. 31). ERICO filed a response in opposition to these motions (Doc. 32). On
May 23, 2011, Relators filed their Response in Opposition to Defendant’s Motion for Summary
Judgment (Doc. 33). In light of this Response, the Court hereby finds Relators’ Motion for

Additional Time and their Motion to Re-open Discovery to be MOOT (Docs. 30, 31). However,
the Court also DENIES the Motion to Re-open Discovery on the additional ground that Relators
failed to adequately pursue discovery in this action.
In substance, Relators’ Motion to Re-open Discovery is properly construed as a motion
brought pursuant to FED. R. CIV. P. 56(d).1 Under Rule 56(d), “‘[w]hen a party fails to secure
discoverable evidence due to his own lack of diligence,’ the necessary justification is lacking, and ‘it
is not an abuse of discretion for the trial court to refuse to grant a continuance to obtain such
information.’” Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1058 n. 5 (7th Cir. 2000) (quoting Pfeil v.
Rogers, 757 F.2d 850, 857 (7th Cir.1985)); see also, Farmer v. Brennan, 81 F.3d 1444, 1449 (7th
Cir.1996). Relators make a strong argument regarding their need to depose ERICO’s undisclosed
witness, Daniel S. Mominee, upon whose Declaration ERICO relies in support of its Motion for
Summary Judgment. However, any potential justification to re-open and extend discovery is negated
by Relators’ own failure to diligently prosecute their case. Moreover, Relators have now relied upon
their own undisclosed witness, Ned W. Randle, in their recently filed Response Brief (Doc. 33, p. 3).
In light of these facts, the necessary justification to extend discovery under Rule 56(d) is lacking.
Again, the Court notes that neither party has abided by the discovery procedures outlined in
FED. R. CIV. P. 26. Neither party properly disclosed any of its witnesses pursuant to Rule 26(a)(1),
and now both parties have relied upon affidavits from non-disclosed witnesses. The Court is indeed
troubled by these failures, and by the fact that ERICO appears to be using this to its advantage by
waiting until the last possible moment to file its Motion for Summary Judgment. For their part,
Relators clearly have been dilatory in pursuing discovery. In the end, this situation is analogous to
“offsetting penalties” in football; that is, both parties are equally at fault and so the game proceeds as
1

On December 1, 2010, Rule 56(f) was re-styled as Rule 56(d) without any substantive changes

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if no penalty occurred at all. Because the Court finds these discovery failures to be offsetting
Relator’s Motion to Re-open Discovery (Doc. 31) is hereby DENIED.
Further the Court hereby DIRECTS the parties to propound their complete Rule 26
disclosures within 14 days of the date of this Order.
IT IS SO ORDERED.
DATED May 25, 2011.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

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