Metropolitan Property and Casualty Insurance Company v. Savin Hill et al

Filing 1310

District Judge Leo T. Sorokin: ORDER entered denying 1282 Commerce's Motion for Reconsideration in its entirety. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
METROPOLITAN PROPERTY AND
)
CASUALTY INSURANCE COMPANY )
and THE COMMERCE INSURANCE
)
COMPANY,
)
)
Plaintiffs,
)
)
v.
)
)
SAVIN HILL FAMILY
)
CHIROPRACTIC, INC. et al.,
)
)
Defendants.
)
____________________________________)

Civil Action No. 15-12939-LTS

ORDER ON MOTION FOR RECONSIDERATION (DOC. NO. 1282)
May 2, 2019
SOROKIN, J.
Pending before the Court is Commerce’s motion for reconsideration, Doc. No. 1282, of
the Court’s earlier Order on case management, Doc. No. 1216. Since Commerce joined this case
as a new plaintiff in the Amended Complaint, Metropolitan and Commerce have, to the Court’s
recollection, made all of their filings prior to this one together, except in one other instance. 1
Here, Commerce alone seeks additional depositions and to compel further production by certain
defendants. Plaintiffs offer no explanation for why they are proceeding separately. Now, as
throughout this litigation, they are represented by the same law firm. In light of the history of this
litigation, this unexplained behavior in which one Plaintiff seeks relief for both Plaintiffs raises

1

When Metropolitan alone failed to meet a discovery deadline, it moved alone for an extension
to that deadline. Doc. No. 1199. Metropolitan has also now made other filings on its own. See
Doc. Nos. 1302, 1303, 1309. The Court does not now address those filings.

concerns. The Court sets these concerns to the side, however, and does not consider them in
resolving this motion.
The Court presumes familiarity with its prior discovery rulings, and this Order does not
recount that long history. See Doc. Nos. 507, 591, 806, 1057, 1102, 1216 (setting the scope of
discovery and establishing and extending case management deadlines). On this backdrop,
Commerce makes two requests for reconsideration of the Court’s most recent scheduling order,
Doc. No. 1216.
“[M]otions for reconsideration are appropriate only in a limited number of circumstances:
if the moving party presents newly discovered evidence, if there has been an intervening change
in the law, or if the movant can demonstrate that the original decision was based on a manifest
error of law or was clearly unjust.” United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). They
“are not to be used as a vehicle for a party to undo its own procedural failures or allow a party to
advance arguments that could and should have been presented to the district court prior to
judgment.” Id. (internal quotations and citations omitted). Because Commerce’s motion seeks
revision of the scheduling order in this case, Commerce must also demonstrate that good cause
exists for such a change at this point. See O’Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d
152, 154 (1st Cir. 2004).
First, Commerce asks the Court to reopen paper discovery as to the Clinic Defendants.
Doc. No. 1283 at 10–14. Nearly two years ago, the Court ordered the Clinic Defendants to
disclose certain patient files related to the claims in this case. Doc. No. 507. Thereafter,
Magistrate Judge Boal issued various orders requiring the Clinic Defendants to produce certain
documents. See, e.g., Doc. No. 699. The Clinic Defendants then produced some paper files and
gave Plaintiffs at least some access to electronic files. Doc. No. 1283 at 5–6.

2

On August 15, 2018, the Clinic Defendants both declared bankruptcy. Doc. Nos. 771,
772. After the Clinic Defendants entered bankruptcy, Plaintiffs at no point asked the Bankruptcy
Court to issue a protective order requiring preservation of the documents sought, to require the
bankruptcy trustee to take physical possession of physical and electronic files, or to allow
Plaintiffs to review the remaining evidence. 2 Before the September 5, 2018, hearing on a revised
schedule for this case, see Doc. No. 795, Plaintiffs could have, but did not, seek to stay the entire
case pending resolution of the bankruptcies or advised the Court that they would need to revisit
and reopen clinic discovery if either entity emerged from bankruptcy. Similarly, their subsequent
motion, Doc. No. 801, failed to make such a request, despite its extensive discussion of the
Clinic Defendants’ bankruptcies.
Three months into the bankruptcy proceedings, Plaintiffs finally moved to lift the
automatic stay that resulted from the Clinic Defendants’ bankruptcies. Doc. No. 1283 at 6. On
January 29, 2019, with the bankruptcy trustee’s concurrence, the bankruptcy stay was lifted. See
Doc. No. 1087. Neither then nor in their later motion to revise the schedule did Plaintiffs account
in any way for reopening paper discovery as to the Clinics. Now, all the motions to compel have
been resolved, the resulting discovery completed, the reports of Plaintiffs’ experts produced, 3
and the first depositions taken. The trial date in this matter, which has long been firmly set, see
Doc. No. 806 at 2, is now six months away.

2

Instead, four years into this litigation, Plaintiffs still have not completed a review of the files
now long available to them.
3
Plaintiffs’ expert reports by Michael Frustaci and/or Rick Cuomo were to be disclosed by May
1, 2019. Doc. No. 1216 at 13. The Court assumes that the reports were disclosed timely and
reminds the parties that the Court anticipates no extension to any deadline now established in this
case. Id.
3

In these circumstances, reopening paper discovery at this point would cause substantial
disruption to the schedule for the remainder of this litigation. It would affect expert disclosures,
depositions taken, and deposition preparation underway, and interfere with the capacity of the
parties to meet the established schedule. Significantly, Commerce’s request articulates no
relationship between the additional discovery sought and the schedule now established in this
case. Commerce offers no explanation for how the additional discovery would bear on the
schedule. It does not even articulate specifically what discovery Commerce wants or a timetable
for such discovery, let alone how this would intersect with the existing schedule. This falls
woefully short of good cause or a basis for reconsideration. 4
Commerce points out that new counsel for the Clinic Defendants recently entered an
appearance, Doc. No. 1254, whereas the clinics were unrepresented and seemingly headed for
default at the time of Commerce’s prior motion to revise the schedule, Doc. No. 1283 at 10.
Commerce misapprehends the significance of this fact. If the documents possessed by the clinics
are as significant to Plaintiffs’ pending claims as Commerce suggests, Commerce should have
pursued them diligently, any possible defaults notwithstanding. To the extent the documents are
significant only to the Clinic Defendants’ counterclaims, Commerce has failed to propose a
reasonable discovery plan, as described above, or to address the issues that might arise from the
documents’ use. 5 Accordingly, Commerce’s request to reopen written discovery is DENIED.

4

The Court further notes that Plaintiffs have not been diligent in taking discovery in this matter.
The Court has been warning both Plaintiffs from the outset of this litigation that they bear the
burden of proving their case as to each defendant they elected to sue. They have had ample
opportunity to take party discovery, and nothing precluded depositions either on the substance of
Plaintiffs’ claims or on the deponent’s knowledge of relevant records before the Clinic
Defendants’ bankruptcies. Instead, Plaintiffs elected to take no depositions. Doc. No. 1082 at 1.
5
The Court takes no position now on issues that might arise if the Clinic Defendants seek to
offer at trial a document that would have been responsive to a timely, properly propounded
discovery request but was never in fact produced. Plaintiffs’ motion for reconsideration does not
4

Second, Commerce requests to take the depositions of the six Employee Defendants. 6
When the Court revised the schedule for this litigation in January, Doc. No. 1102, Plaintiffs did
not propose a reasonable schedule that included depositions of the Employee Defendants.
Plaintiffs similarly made no reasonable proposal including such depositions when the Court later
revised the schedule yet again. See Doc. No. 1216. As a result, Plaintiffs are currently authorized
to take the depositions of only the ten people they identified in their papers as their ten
depositions as of right. See Doc. No. 1216 at 9; Doc. No. 1141 at 4–5. The ten depositions
Plaintiffs chose based upon the presumptive limit of ten did not include the Employee
Defendants. Id. Now, for the first time, Commerce proposes taking depositions of the Employee
Defendants that are limited to two hours per deponent. Doc. No. 1282 at 2.
This request is also DENIED. Commerce offers no plan for completing the additional
depositions they request within the time that now remains for fact depositions. Plaintiffs have
already failed to meet discovery deadlines on numerous occasions. See Doc. No. 1250. They
provide neither assurance nor, more importantly, a reasoned plan to accomplish the additional
depositions. Realistically, each additional two-hour deposition would take at least a half-day,
including time for questions from other Defendants and possibly the Employee Defendants’ own
counsel. See Doc. No. 1216 at 11 (providing time for Plaintiffs’ questions at time-limited
depositions to be taken by Defendants). The additional depositions therefore add at least three
business days of depositions into already tight period for fact depositions, of which only just over

raise this issue as a justification for reopening discovery, thereby forfeiting it as an argument for
the instant motion. However, nothing in this Order should be read as an authorization to Clinic
Defendants to use such documents either in their defense or to prove their counterclaims. The
Court declines to address at this point the hypothetical issues that such use might raise.
6
The six Employee Defendants are William Hernandez, Maximo Soto, Arismendy Ramos,
Tanisha Ramos, Karla Mendoza, and April Stewart.
5

sixty business days remain. The other thirty depositions already allowed will require nearly thirty
full business days under the best of circumstances. See Doc. No. 1216 at 9–11. At this point,
adding three additional days of depositions, which, given potential scheduling issues, may well
require as many as six different dates, is therefore very significant. The Court concludes, based
on Plaintiffs’ conduct in this case, that they will not be able to accomplish the depositions on the
allowed timeline. Their failure to offer a reasoned plan confirms the Court’s conclusion.
For the foregoing reasons, Commerce’s motion for reconsideration, Doc. No. 1282, is
DENIED in its entirety.

SO ORDERED.

/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

6