ATALLA et al v. 7-ELEVEN, INC.

Filing 351

MEMORANDUM OPINION AND ORDER denying 7-Eleven's [C.A. 13-3715, Doc. No. 454] Motion to Extend the Close of Fact Discovery. Signed by Magistrate Judge Joel Schneider on 7/22/2015. (TH, )

[C.A. 13-3715, Doc. No. 454]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
SAM YOUNES, et al.,
Plaintiffs,
Civil No. 13-3500 (RMB/JS)
v.
7-ELEVEN, INC.,
Defendant.

7-ELEVEN,
Plaintiff,
Civil No. 13-3715 (MAS/JS)
v.
KARAMJEET SODHI, et al.,
Defendants.

NEIL NAIK, et al.,
Plaintiffs,
Civil No. 13-4578 (RMB/JS)
v.
7-ELEVEN, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on 7-Eleven, Inc.’s “Motion
to Extend Close of Fact Discovery for the Limited Purposes of
1

Concluding

Depositions

of

the

Franchisees’

Fact

Witnesses.”

[Doc. No. 454]. 7-Eleven seeks an extension of time until August
31, 2015, to complete depositions of five (5) witnesses. The
Court heard oral argument on July 17, 2015. This Order confirms
the ruling made on the record on July 17, 2015. For the reasons
to be discussed, 7-Eleven’s motion is DENIED. 1
After exhaustive efforts the fact discovery phase of the
case is finally coming to a close. What is apparent from the
tortured discovery phase of the case is that the case is a prime
example of how litigation should not be conducted. The parties
have been unable to agree on simple issues, and the Court has
been plagued by incessant discovery disputes, many of which have
been

trivial.

responded

to

If

the

each

parties

other’s

had

discovery

timely

and

requests,

appropriately
fact

discovery

would have been completed long ago. Further, the parties would
have

saved

themselves

(and

the

Court)

untold

hours

of

unnecessary work. While the Court and counsel wasted their time
on

unnecessary

disputes,

the

parties

were

hurt

in

their

pocketbook. It is unfortunately the case that the parties likely
had

to

spend

tens

of

thousands

of

unnecessary

dollars,

and

probably in excess of six figures, on discovery disputes that
could have and should have been easily resolved if the parties
had
1

exercised

a

modicum

of

cooperation.

Now,

after

spending

Although 7-Eleven only filed its motion in the Sodhi case (C.A. No. 13-3715),
the motion undoubtedly also pertains to Younes (C.A. 13-3500) and Naik (C.A.
13-4578).
2

approximately seventeen (17) months in intensive discovery, 7Eleven wants more time to complete depositions.

The request is

emphatically denied.
Background
By

way

of

brief

background,

7-Eleven

filed

its

Naik

complaint on June 14, 2013, and an amended complaint on June 26,
2013. The early stage of this case involved 7-Eleven’s request
for a preliminary injunction and Sodhi’s request for a temporary
restraining
objection,

order.
on

At

7-Eleven’s

February

14,

2014

request
this

and

over

action

Sodhi’s

(Sodhi)

was

consolidated with two other cases (C.A. Nos. 13-3500 and 134578) raising similar issues. [Doc. No. 93]. In short, 7-Eleven
alleges

the

agreements.

Sodhi
Sodhi

defendants
filed

a

breached

counterclaim

their
alleging

franchise
7-Eleven

violated the New Jersey Franchise Practices Act, N.J.S.A. 56:101, et seq.
On February 18, 2014 [Doc. No. 95] the Court entered the
first of a series of scheduling orders addressing discovery.
Since that time, the parties have been conducting exhaustive
discovery

for

unfortunately

17

months.

compelled

to

During

this

address

time
and

the

decide

Court

was

incessant

discovery disputes. The docket entries reflect that on at least
twenty-eight (28) separate occasions from May 27, 2014 to July
17, 2015, the Court held in-person conferences or calls with the
3

parties to address their disputes. Since the start of discovery
the

parties

regularly

squabbled

about

deposition

dates

and

locations. On September 15, 2014, and to assist the parties to
resolve

scheduling

resolve

without

disputes

Court

which

most

intervention,

counsel

the

Court

are

able

Ordered

to
the

parties to identify all fact depositions they intended to take.
See July 31, 2014 Order at &4, Doc. No. 144. The Court’s efforts
to assist the parties were unsuccessful as regular scheduling
squabbles continued. On March 17, 2015, the Court set a May 29,
2015 fact discovery deadline.

See Doc. No. 290. The deadline

was later extended to June 30, 2015 (see Doc. No. 354) and then
to

July

31,

2015.

On

June

16,

2015,

the

Court

made

it

unequivocally clear that fact discovery would end on July 31,
2015, and no further extensions would be granted. See Transcript
of June 16, 2015 at 16:10-13; 57:23-58:1, Doc. No. 438. Now,
even after multiple extensions of time and fair warning from the
Court that fact discovery would end on July 31, 2015, 7-Eleven
wants another extension.
Discussion
Pursuant to Fed. R. Civ. P. 16(b)(4), a scheduling order
may be modified only upon a showing of "good cause." One way the
moving party can establish good cause is to demonstrate that it
cannot

reasonably

meet

the

court’s

deadlines

despite

its

diligence. Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir.
4

1986); Spring Creek Holding Co. v. Keith, C.A. 02-cv-376 (JLL),
2006 WL 2403958, at *3 (D.N.J. Aug. 18, 2006). The “good cause”
standard is not a low threshold. J.G. v. C.M., C.A. No. 11-2887
(WJM),

2014

WL

1652793,

at

*1

(D.N.J.

April

23,

2014).

The

moving party has the burden of demonstrating that despite its
diligence it could not reasonably have met the Scheduling Order
deadline. 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 would
severely impair the utility of Scheduling Orders. Koplove, 795
F.2d at 18. Further, as stated in Dag Enterprises, Inc. v. Exxon
Mobil

Corp.,

226

F.R.D.

95,

104

(D.D.C.

2005)(citations

and

quotations omitted):
A Scheduling Order is intended to serve as the
unalterable road map (absent good cause) for the
remainder of the case. A scheduling order is not a
frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.
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.
Frankly, the Court is at a loss to understand why more than
2

years

into

the

case,

and

after

17

months

of

intensive

discovery, 7-Eleven still has not completed its depositions. As
noted in Nestle Foods Corp. v. Aetna Cas. & Sur. Co., C.A. No.
89-1701

(CSF),

1992

WL

183712,
5

at

*2

(D.N.J.

July

20,

1982)(citation

and

quotation

omitted),

“a

Magistrate

Judge's

Scheduling Order is not a frivolous piece of paper idly entered,
which can be cavalierly disregarded by counsel without peril.”
Another

decision

expressing

essentially

the

same

point

is

Globespan Virata, Inc. v. Texas Instruments, Inc., C.A. No. 032854

(GEB),

2005

2005)(citation

and

WL

1638136,

quotation

at

*4

omitted).

(D.N.J.
There,

July
the

11,
Court

reiterated that "scheduling orders are the heart of the Case
Management [and cannot] be flouted.”
Based on the history of the case, the Court has no doubt
that if 7-Eleven exercised reasonable diligence it would have
completed all of its depositions before July 31, 2015. 7-Eleven
has had at least 17 months to take fact discovery. The remaining
witnesses and parties 7-Eleven wants to depose were known years
ago. 7-Eleven did not have to wait until the eve of the latest
discovery deadline to take their depositions. The Court has no
sympathy

for

7-Eleven’s

argument

that

defendants

recently

cancelled scheduled depositions. Like defendants, 7-Eleven has
cancelled numerous scheduled depositions. Further, despite the
Court’s efforts to assist the parties to schedule depositions,
the

parties

still

could

not

agree

on

dates.

If

the

parties

cooperated surely this would have been done. Most importantly,
however,

is

the

fact

that

7-Eleven

6

had

17

months

to

take

depositions and it waited to the last minute to cram them all
in.
7-Eleven wants more time to take the depositions of John
Spavlik

and

Deborah

Kish,

former

employees,

plaintiffs

Sam

Younes and Tamar Atalla in Younes (C.A. No. 13-3500), and Kunal
Sodhi,

the

son

of

defendant

Karamjeet

Sodhi.

Spavlik,

Kish,

Younes and Atalla are key witnesses in the case. Why 7-Eleven
waited

until

the

end

of

fact

discovery

depositions is beyond the ken of the Court.

to

cram

in

these

7-Eleven knew long

ago that Spavlik and Kish were two of defendants’ key witnesses.
In

fact,

7-Eleven

describes

these

witnesses

as

“essential.”

Certification of Susan V. Metcalfe, &6 (“Mr. Spavlik and Ms.
Kish are essential witnesses for 7-Eleven to depose.”). 7-Eleven
also knew long ago that named parties were going to be deposed.
7-Eleven foists blame on the Marks & Klein law firm because
their schedule is “booked” for July.

7-Eleven does not explain

why it did not take the requested depositions months earlier,
and why Court Ordered deposition dates were cavalierly ignored. 2
See n.3, infra.
Based on past experience in these related cases, the Court
has no confidence that if it extends the discovery deadline yet
again 7-Eleven would meet the new deadline.

Time and time again

the parties have missed deadlines and asked for extensions of
2

Spavlik’s deposition was apparently started and 7-Eleven wants it to
“conclude.”
7

time

with

assurances

that

everything

would

be

done.

Most

recently, 7-Eleven was advised on June 16, 2015 that the fact
discovery deadline would not be extended past July 31, 2015.
Instead of immediately taking key depositions, 7-Eleven crammed
depositions into the end of July. No doubt 7-Eleven will blame
other parties and conjure up excuses for why depositions were
not taken earlier. However, having heard innumerable excuses for
scheduling problems throughout the course of these cases, the
Court

is

numb

to

the

parties’

excuses. 3

Most

recently

Ms.

Metcalfe was ill. Surely this is a good reason why she could not
take

depositions.

However,

the

illness

does

not

explain

why

Metcalfe’s two partners on the case, or another of the competent
attorneys

working

on

the

case,

could

not

take

the

requested

depositions. This is especially true in view of the fact that
early Court Ordered dates were ignored and the Court advised the
parties that no further extensions of time would be granted.
The parties have until July 31, 2015, to take depositions
so there is still time to complete what 7-Eleven wants to get
done.

If

7-Eleven

does

not

have

enough

time

to

take

its

depositions it has itself to blame. There was nothing to prevent
7-Eleven from taking key depositions long ago. Enough is enough;
3

The Court could write a treatise on the parties’ discovery transgressions in
the case but instead will only provide one example. On May 20, 2015 [Doc. No.
383] the Court Ordered the requested depositions to be taken on firm dates
(Spavlik – June 9; Kish – May 27; S. Younes – June 18; T. Atalla – June 24;
K. Sodhi – June 5). Despite being Court Ordered, and despite not obtaining
leave of Court, the depositions were not completed. The Court will not grant
7-Eleven an extension of time to take depositions that were not completed or
even started even though they were Court Ordered on a date certain.
8

no

further

extensions

of

time

will

be

granted.

The

Court

unequivocally finds that if 7-Eleven had exercised reasonable
diligence the remaining depositions it wants to take would have
already been taken.
Conclusion
Accordingly,

for

the

foregoing

reasons,

it

is

hereby

ORDERED this 22nd day of July, 2015, that 7-Eleven’s motion to
extend the close of fact discovery is DENIED.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

9