LOUISIANA COUNSELING AND FAMILY SERVICES INC. et al v. MT. FUJI JAPANESE RESTAURANT et al

Filing 127

MEMORANDUM OPINION AND ORDER denying Deft Hello Gorgeous's 115 Motion to Compel Expedited Discovery/Extend Time for Discovery. Signed by Magistrate Judge Joel Schneider on 5/1/2013. (drw)

[Doc. No. 115]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
LOUISIANA COUNSELING AND
FAMILY SERVICES, INC., et al.,
Plaintiffs,

Civil No. 08-6143 (JHR/JS)

v.
MT. FUGI JAPANESE RESTAURANT,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the “Motion to Compel
Expedited Discovery/Extend Time for Discovery” [Doc. No. 115] filed
by defendant Hello Gorgeous Salon and Spa, Inc. (hereinafter “Hello
Gorgeous” or “defendant”).

Defendant seeks leave to take the

depositions of plaintiff and her expert in this 4½ year old case.
Plaintiff

opposes

the

motion.1

[Doc.

No.

125].

The

Court

exercises its discretion to decide defendant’s motion without oral
argument.

Fed. R. Civ. P. 78; L. Civ. R. 37.1(b)(4).

For the

reasons to be discussed, defendant’s motion is DENIED.
Background
The procedural background of this matter as to Hello Gorgeous
is long and tortured.

1

The Court

will use its best efforts to

The original plaintiffs were Louisiana Counseling and Family
Services, Inc, LCFS Access to All, LCFS Counseling and Jeanette
Brown.
Plaintiff’s amended complaint filed on August 18, 2011
[Doc. No. 77] only named Jeanette Brown.

provide a succinct summary.

As is evident from the following

discussion, defendant has consistently missed applicable deadlines
and there is a history of dilatoriness.
did

not

avail

itself

of

numerous

In addition, defendant

opportunities

to

take

the

requested depositions before the fact discovery deadline expired on
November 30, 2012.
Plaintiff filed her complaint on December 15, 2008 against
Hello Gorgeous and other similarly situated defendants.

The

essence of plaintiff’s complaint is that defendant’s facility
violated the Americans with Disabilities Act, 42 U.S.C. §181, et
seq., and the New Jersey Law Against Discrimination, N.J.S.A. 10:51, et seq..

A default was entered against defendant on March 3,

2009. [Doc. No. 22].

On January 19, 2010, the Court denied

plaintiffs’ motion for default judgment and vacated the default.
[Doc. No. 61].2

Thereafter, on February 24, 2010, the Court’s

Scheduling Order set a fact discovery deadline of May 31, 2010
(see Doc. No. 62 at ¶5).

Plaintiff filed her motion for summary

judgment directed to defendant on December 14, 2010. [Doc. No. 71].
The motion was denied in an Order issued on July 27, 2011. [Doc.
No. 76].

The same Order directed plaintiff to show cause why it

had standing to bring the present law suit.

Plaintiff filed her

amended complaint on August 18, 2011 [Doc. No. 77].

Another

default was entered against Hello Gorgeous on September 28, 2011

2

Defendant filed its answer to the complaint on August 24,
2009 [Doc. No. 50], before its default was vacated.
2

[Doc. No. 83].
On March 22, 2012, defendant’s present counsel wrote the Court
and advised it that defendant’s counsel died in July, 2011.

On May

31, 2012, defendant filed a motion to set aside the September 28,
2011 default [Doc. No. 87] and a motion to dismiss [Doc. No. 86].
On June 6, 2012, present counsel entered her appearance of record
for defendant. [Doc. No. 88]. On June 20, 2012, plaintiff’s second
motion for default judgment was denied and her default was vacated.
[Doc. No. 93].
8, 2012.

Defendant’s motion to dismiss was denied on August

[Doc. No. 97].

On August 21, 2012, the Court entered a Scheduling Order
setting a fact discovery deadline of November 30, 2012. [Doc. No.
100 at ¶1].

On November 30, 2012, the date the deadline expired,

defense counsel advised the Court that it intended to file “motions
related to plaintiff’s non-compliance with discovery demands as
ordered during the in-person status conference on August 21, 2012.”
[Doc. No. 102].

Defense counsel wrote she attempted to schedule

plaintiff Jeanette Brown’s deposition without success.

Defense

counsel also wrote that she intended to “file an omnibus motion to
compel discovery, extend time for discovery, extend time for the
filing of dispositive motions, and sanctions unless [her] requests
can be otherwise accommodated by consent and stipulation or by
further Order of the Court.”

Id.

The motion was never filed.

Although the Court did not extend the fact discovery deadline, on
December 7, 2012, it entered a new Scheduling Order extending the
3

time to file dispositive motions to February 14, 2013. [Doc. No 106
at ¶1]. Plaintiff and defendant filed motions for summary judgment
on February 14, 2013. [Doc. No. 109, 110].

The motions have been

briefed and they await decision.
Defendant’s present motion asks the Court to extend the fact
discovery deadline so it can take the depositions of plaintiff
Jeanette Brown and her expert.

The first time defense counsel

mentioned she wanted the Court to direct plaintiff Jeanette Brown
to appear to be deposed was during a February 22, 2013 conference
call.

The first time defendant requested to take plaintiff’s

expert’s deposition was when it filed the present motion on March
1, 2013.

According to plaintiff, defendant received the expert’s

report in December 2008, when it was served.

Brief at 1-2, 14.3

Discussion
Since plaintiff’s motion was filed after the fact discovery
deadline expired,

Fed.

R.

Civ.

P.

6(b)(1)(B) sets

forth

the

applicable legal standard the Court must apply. This rule provides
that when an act may or must be done in a specified time the Court
may, for good cause, extend the time on motion made after the time
has expired if the party failed to act because of “excusable
neglect.”

In

determining

whether

a

party

has

demonstrated

excusable neglect the Court must consider the following five

3

According to the docket entries Hello Gorgeous was served on
December 30, 2008, at its address in Deptford, New Jersey. [Doc.
No. 4].
4

factors:
1) whether the inadvertence reflected professional
incompetence such as ignorance of rules of procedure, 2)
whether an asserted inadvertence reflects an easily
manufactured excuse incapable of verification by the
court, 3) counsel’s failure to provide for a readily
foreseeable consequence, 4) a complete lack of diligence
or 5) whether the inadvertence resulted despite counsel’s
substantial good faith efforts towards compliance.
Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988).
The Supreme Court has explained that the “excusable neglect”
inquiry is “at bottom an equitable one, taking account of all
relevant

circumstances

surrounding

the

party’s

omission,”

including, “the danger of prejudice to the [other party], the
length

of

the

delay

and

its

potential

impact

on

judicial

proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant
acted in good faith.” Pioneer Inv. Serv. Co. v. Brunswick Assoc.
Ltd. Partnership, 507 U.S. 380, 395 (1993).

After weighing all the

relevant factors, the Court finds defendant does not establish
excusable neglect for failing to file its motion, or an application
to compel the requested depositions (see L. Civ. R. 37.1(a)(1)),
before November 30, 2012.

Defendant knew, or should have known,

that all discovery applications should be made returnable before
the discovery deadline expired.

Defendant also had years to take

the requested depositions before November 30, 2012. Plaintiff and
her expert were not surprise witnesses.

Further, defendant’s

actions evidence a complete lack of diligence.
5

Not only did

defendant wait years to try and take plaintiff’s deposition, but
defendant did not file its motion to compel until three months
after the fact discovery deadline expired.

Therefore, plaintiff’s

motion is denied because it cannot show substantial justification
for filing its motion late.4
Even if defendant could show substantial justification for its
late motion the motion would still be denied.

The reason is

because defendant cannot show “good cause” to grant its motion.
Pursuant to Rules 6(b)(1) and 16(b)(4) a scheduling order may be
modified only upon a showing of "good cause".

To establish good

cause the moving party must demonstrate that it cannot reasonably
meet the court’s deadlines despite its diligence.
Motor Co., 795 F.2d 15, 18 (3d Cir. 1986).

Koplove v. Ford

The determination of

good cause depends upon the diligence of the moving party.

Spring

Creek Holding Co. v. Keith, C.A. 02-cv-376, 2006 WL 2403958, at *3
(D.N.J.

Aug.

18,

2006).

The

moving

party

has

the

burden

of

demonstrating that despite its diligence it could not reasonably
have met the Scheduling Order deadline.

Id. (citing Hutchins v.

United Parcel Service, Inc., C.A. 01-1462, 2005 WL 1793695, at *3
(D.N.J. July 26, 2005)).

Extensions of time without good cause

would deprive courts of the ability to effectively manage cases on
their overcrowded dockets and severely impair the utility of
Scheduling Orders. Koplove, 795 F.2d at 18.

4

Further, as stated in

Defendant’s numerous rules transgressions and late filings
are summarized in plaintiff’s Brief. [Doc. No. 125-2].
6

Dag Enterprises, Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 104
(D.D.C. 2005):
A Scheduling Order is “intended to serve as ‘the
unalterable road map (absent good cause) for the
remainder of the case.’”
Olgyay v. Soc. for Envtl.
Graphic Design, Inc., 169 F.R.D. 219, 220 (D.D.C.
1996)(quoting Final Report of the Civil Justice Reform
Act Advisory Group of the United States District Court
for the District of Columbia at 39 (Aug. 1993)).
“A
scheduling order ‘is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel
without peril.’” Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 610 (9th Cir. 1992)(quoting Gestetner Corp.
v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)).
Indeed, “[d]isregard of the order would undermine the
court’s ability to control its docket, disrupt the
agreed-upon course of litigation, and reward the indolent
and the cavalier.” Id.
Defendant has not shown “good cause” to take the requested
depositions and, therefore, its motion will be denied.

Defendant

had numerous opportunities to take the requested depositions during
the extended discovery period in the case yet it failed to do so.
The original fact discovery deadline was May 31, 2010 [Doc. No. 62
at ¶5].

Defendant has not explained why it did not take the

requested depositions three years ago.

Further, even after the

fact

to

discovery

deadline

was

extended

defendant did not take any depositions.

November

30,

2012,

Defendant clearly knew

about plaintiff from the moment it was served yet it waited years
to even attempt to schedule her deposition.
“plaintiff’s

deposition

is

necessary

to

Defendant argues,
gather

information

regarding the scope of standing and to establish whether material
facts are in dispute.”

Motion at ¶4.

7

Defendant knew this four

plus

years

ago.

The

same

is

true

for

plaintiff’s

expert.

Plaintiff’s counsel represents he produced his expert report when
the complaint was served on Hello Gorgeous in December 2008. Brief
at 1-2,

14.

Yet, however, the first time defendant requested the

deposition was when it filed the present motion on March 1, 2013,
four plus years after it received the report.
This is not an instance where the case inadvertently “slipped
through the cracks” because of the unfortunate death of defendant’s
first attorney.

Instead, this is a case where defendant simply

chose not to take depositions.

The first defense attorney did

significant work on the case before he passed, including filing an
answer on August 24, 2009 [Doc. No. 50], successfully vacating
plaintiff’s first default judgment [Doc. No. 61], and successfully
resisting plaintiff’s first motion for summary judgment [Doc. Nos.
75, 76].

This history makes it evident that the attorney had more

than an adequate opportunity to take depositions from 2009-2011.
The same is true for defendant’s present counsel.

She wrote the

Court on March 22, 2012, she filed a motion to set aside a default
on May 31, 2012 [Doc. No. 87], and she formally entered her
appearance of record on June 6, 2012.

[Doc. No. 88].

After the

second default against Hello Gorgeous was vacated on June 20, 2012
[Doc. No. 93], the Court entered its August 21, 2012 Order setting
a November 30, 2012 fact discovery deadline. [Doc. No. 100].
Surely, present defense counsel had an adequate opportunity to take
depositions before November 30, 2012.
8

Defendant’s November 30, 2012 letter to the Court is “too
little, too late.”

First, the letter does not even ask the Court

to order the requested depositions.

Defendant wrote it would file

a motion if it could not work out its scheduling problems with
plaintiff.

However, the motion was not filed until March 1, 2013,

long after the fact deadline expired, and after the parties filed
their summary judgment motions.

Second, if defendant had problems

scheduling depositions it should have advised the Court before
November 30, 2012, not on the same day the deadline expired.
Further, even after November 30, 2012, defendant had an opportunity
to

take

Jeanette

Brown’s

deposition

but

failed

to

do

so.

Plaintiff’s counsel represents he “made almost every calendar day
from January 9 [2013], the date of the cancelled deposition to
February

14

[2013],

the

day

available [for deposition].”

for

filing

Brief at 13.

dispositive

motions

Defendant presents no

adequate explanation for why it did not take Jeanette Brown’s
deposition during this time.5
her

trial

persuasive.

schedule
Nor

without

does

Defense counsel’s bare comment about
any

defendant

5

supporting
explain

why

evidence
if

it

is

not

received

The fact that plaintiff’s counsel offered to make Jeanette
Brown available for deposition during this time demonstrates to the
Court that plaintiff’s counsel did not act in bad faith.
If
defendant
had
insurmountable
problems
taking
plaintiff’s
deposition, which does not appear to be the case, it was its
responsibility to approach the Court for relief on a timely basis.
Instead, defendant waited until after the discovery deadline
expired and after the parties’ filed their summary judgment motions
to file its motion.
9

plaintiff’s expert report in December 2008, the first time it
requested the expert’s deposition was on March 1, 2013.

Defendant

argues “[t]he [expert] deposition ... is necessary to gather
information to determine whether material facts are in dispute.”
Motion at ¶6.

However, defendant does not explain why it waited

until March 1, 2013, to request to take the deposition in a case
that has been pending since 2008.
There are other reasons to deny defendant’s motion other than
the fact that its late motion is not substantially justified and it
cannot show good cause to take late discovery.

This case was filed

in December, 2008 and has a long and tortured history.6

If the

Court permitted defendant to take late discovery it would further
delay an already old case.

If the depositions are taken, it would

likely moot the parties’ outstanding motion for summary judgment
and require that another round of motions be filed after the
depositions are taken.

The Court is not disposed to dragging out

an already old case. Further, it appears that defendant does not
view the depositions as essential to its defense.

Otherwise,

defendant would not have filed two summary judgment motions before
it filed the present motion.
The foregoing discussion demonstrates that defendant cannot
satisfy its burden of showing that its late filing is substantially
justified and that it exercised diligent efforts to take the
requested

depositions

before

the

6

discovery

deadline

expired.

Defendant is the only represented defendant (total of 4) that
did not settle or resolve the case.
10

Although defendant argues it exercised “diligent efforts” (Brief at
2), the evidence shows exactly the opposite.

Defendant had more

than an adequate opportunity to take the requested depositions but
it failed to do so.

If defendant could find time to file two

motions for summary judgment and requests to vacate defaults, it
certainly had a fair opportunity to take the requested depositions.
Conclusion
Accordingly, for all the foregoing reasons,
IT IS HEREBY ORDERED this 1st day of May, 2013, that the
Motion to Compel Expedited Discovery/Extend Time for Discovery
filed by defendant Hello Gorgeous is DENIED.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

11