McDonald Apiary, LLC v. Starrh Bees, Inc., et al

Filing 198

ORDER granting 194 Motion for expedited discovery; granting 197 Motion for Leave to file a surreply.A supplemental Pretrial Conference to update the final pretrial conference order and exhibit lists, as needed, is scheduled to be held before the undersigned magistrate judge on November 21, 2016 at 8:30 a.m. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MCDONALD APIARY, LLC, a Nebraska
Limited Liabiity Company;
8:14CV351
Plaintiff,
vs.

MEMORANDUM AND ORDER

STARRH BEES, INC., a California
Corporation; DALE ASHLEY, ANNE
ASHLEY, AND JONATHAN
GONZALEZ,
Defendants.
Pending before me is McDonald Apiary’s motion for expedited discovery. (Filing
No. 194). For the reasons stated below, the motion will be granted.

Plaintiff’s complaint was initially filed in the District Court of Sheridan County,
Nebraska on October 31, 2014, and it was removed to this forum on November 12, 2014.
(Filing No. 1). The court entered a progression order on July 9, 2015, which set August
31, 2015 as the deadline for moving to amend Plaintiff’s complaint. (Filing No. 47). Trial
was scheduled to begin on October 24, 2016. (Filing No. 48).

On June 30, 2016, Plaintiff moved for leave to file an amended complaint. The
proposed amended complaint added allegations supporting Plaintiff’s previously alleged
claims, and it added a claim under the Junkins Act. As relevant to the pending motion for
expedited discovery, Starrh objected to allowing an amended complaint, arguing:
If the Court were to allow McDonald Apiary’s amendments additional
discovery would have to be allowed, and the trial date would almost
certainly have to be moved. Starrh Bees should not be prejudiced by having
to re-take depositions and losing the trial date, at which its Counterclaims
against McDonald Apiary will also be adjudicated.
(Filing No. 151, at CM/ECF p. 33).

Plaintiff responded that although trial was quickly approaching, Starrh Bees did
not need discovery to respond to the proposed new allegations: “[T]he amendments
describe Starrh’s own conduct—which has been known to Starrh all along.” (Filing No.
155, at CM/ECF p. 2). McDonald Apiary argued:
There are no new causes of action. There are no new defendants. These
legal theories, and the importance of location information, have been
present in this case all along. McDonald Apiary is simply now
supplementing its original Junkin Act claim, as well as its other claims,
with factual allegations based upon information it was belatedly provided in
discovery or which it very recently discovered regarding Starrh’s behavior
in the placement of its hives and its impersonation of McDonald Apiary.
(Filing No. 155, at CM/ECF pp. 18-19).

Upon review of the record and allegations before the court, Judge Gerrard
concluded there was good cause to grant McDonald Apiary’s motion to amend. As to the
issue of whether good cause supported Plaintiff’s post-deadline motion, Judge Gerrard
reasoned that McDonald Apiary could not have reasonably met the August 31, 2015
deadline for amending: It could not have known and alleged facts based on the 2015 and
2016 beekeeping seasons before the deadline for moving to amend, and it acted promptly
when those facts became known. Discussing any prejudice caused by the late
amendment, Judge Gerrard stated:
The parties disagree about whether discovery would have to be reopened to
investigate the new claim and additional allegations. Regardless, even if
new discovery is required, the new allegations and claims are closely
related to already-pending issues, and do not materially alter the nature of
this case. . . . And more fundamentally, the burden of undertaking
discovery, standing alone, does not suffice to warrant denial of a motion to
amend a pleading.
(Filing No. 180, at CM/ECF pp. 4-5) (internal citation omitted). Judge Gerrard granted
Plaintiff’s motion to amend on September 14, 2016, (Filing No. 180), and Plaintiff’s
Third Amended Complaint was filed on September 16, 2016. (Filing No. 181).
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The Third Amended Complaint adds allegations that Starrh was and is attempting
to drive McDonald Apiary, its competitor, out of business, and in 2015 and 2016, it did
so by placing an excessive number of hives near and on the same land as McDonald
Apiary’s hives for no valid business purpose. The Third Amended Complaint alleges
Starrh was and is pursuing its unlawful, anti-competition conduct by impersonating
McDonald Apiary personnel to gain access to and place Starrh hives on property used by
McDonald Apiary for its hive locations. (Filing No. 181, at CM/ECF pp. 21-24).

After the Third Amended Complaint was filed, a conference call was promptly
scheduled for September 23, 2016, to discuss any necessary modifications to the case
progression schedule. During that conference before the undersigned magistrate judge,
both parties stated they did not want the trial delayed. 1 When asked about any required
additional discovery, McDonald Apiary did not identify any specific discovery it still
needed, while Starrh stated that in light of the new allegations, it needed a supplemental
30(b)(6) deposition of McDonald Apiary. That deposition was held on October 4, 2016.
(Filing No. 184).

At the time of the October 4, 2016 deposition, McDonald Apiary talked to Starrh’s
counsel about the additional document discovery at issue in McDonald Apiary’s pending
motion for expedited discovery. That listing includes:
a.

Dale's calendars for 2015 and 2016

b.

Starrh's 2015 and 2016 honey production records and numbers

c.

Starrh's 2015 and 2016 honey sales records and numbers

d.

Starrh's 2014, 2015, and 2016 extraction records, including from the North
Platte facility

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The trial was in fact delayed to December 1, 2016, primarily because litigating
the allegations within the Third Amended Complaint will require more witnesses, and
neither the courtroom nor Judge Gerrard were available for a lengthier trial time if the
trial began on October 24, 2016. The new trial date was discussed at length and selected
during the parties’ pretrial conference.
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e.

Starrh's hive locations for 2016 (GPX file is sufficient)

(Filing No. 194-3).

Starrh Bees objects to the additional discovery, arguing it not requested by the
April 29, 2016 written discovery deadline, (see text order 108); McDonald Apiary has
failed to show good cause for untimely requesting additional discovery; and McDonald
Apiary should be estopped from demanding discovery now because it denied needing
discovery in prior briefing and communications with the court, including during the
September 23, 2016 conference with the undersigned magistrate judge.

The discovery requests at issue were likely not relevant, or at least not
proportionate to the claims alleged, before the Third Amended Complaint was filed. But
with that filing on September 16, 2016, McDonald Apiary’s additional discovery requests
are, without question, relevant. While the court is troubled by McDonald Apiary’s failure
to immediately inform the court (and opposing counsel) of the additional discovery it
would need if granted leave to file an amended complaint, and its failure to immediately
make these discovery demands during the conference on September 23, 1016, I am not
convinced McDonald Apiary has engaged in “gamesmanship” to obtain a litigation
advantage. (Filing No. 151, at CM/ECF p. 3).

This lawsuit is complex, with both parties required to marshal, decipher, and
cross-reference many documents spanning multiple honey production seasons. McDonald
Apiary requested additional documents from Starrh which are relevant to the new claim
and allegations within three weeks after the Third Amended Complaint was filed. Three
weeks was not an unreasonable time for McDonald Apiary to assess what it had and what
it still needed to pursue the additional 2015 and 2016 allegations, and respond to Starrh’s
defenses. Then Starrh responded to McDonald Apiary’s demands primarily with silence
for nearly three weeks, (Filing Nos. 194-5 through 194-7)—a delay which may reflect its
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own difficulty with immediately assessing discovery demands and providing appropriate
responses in this document-intensive case.

In the end, the goal is to expeditiously and efficiently achieve a just and fair
verdict. Fed. Civ. R. P. 1. Upon review of the record as a whole, and having attempted to
actively manage the discovery process in this case from the outset to reach that goal, the
undersigned magistrate judge finds McDonald Apiary has shown good cause for making
post-deadline discovery demands, and its related motion for expedited discovery must be
granted.

Accordingly,

IT IS ORDERED:

1)

Starrh’s Motion for Leave to File a Surreply Brief Instanter, (Filing No.
197), is granted, and the surreply brief was reviewed and considered in
deciding the motion for expedited discovery.

2)

McDonald Apiary’s motion for expedited discovery, (Filing No. 194), is
granted. On or before November 15, 2016, Starrh shall produce:
a.
b.

Starrh's 2015 and 2016 honey production records and numbers

c.

Starrh's 2015 and 2016 honey sales records and numbers

d.

Starrh's 2014, 2015, and 2016 extraction records, including from the
North Platte facility

e.

3)

Dale’s calendars for 2015 and 2016

Starrh's hive locations for 2016 (GPX file is sufficient)

A supplemental Pretrial Conference to update the final pretrial conference
order and exhibit lists, as needed, is scheduled to be held before the
undersigned magistrate judge on November 21, 2016 at 8:30 a.m., and will
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be conducted by internet/telephonic conferencing. The parties shall use the
conferencing instructions assigned to this case, (see Filing No. 50), to
participate in the pretrial conference. Any supplemental or amended
proposed Pretrial Conference Order and Exhibit List(s) must be emailed to
[e-mail], in either Word Perfect or Word format, by 5:00
p.m. on November 18, 2016.
November 5, 2016.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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