CEVDET AKSUT VE OGULLARI KOLL.STI v. CAVUSOGLU et al
MEMORANDUM OPINION. Signed by Magistrate Judge Mark Falk on 7/14/17. (cm, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CEVDET AKSÜT OULLARI KOLL,
Civil Action No. 14-3362 (WJM)
ROBIN A. CAVUSOGLU, et al.,
This case—Cevdet Aksut III—is the third in a family of cases Plaintiff has filed
in an effort to collect payment for $1.1 million in apricots, figs, and pine nuts shipped
by Cevdet to HGC Commodities Corporation, an entity controlled by Defendant
Huseyin Cavusoglu.1 In general, Cevdet Aksut III arises from information Plaintiff
discovered in collection proceedings related to a judgment entered in Cevdet Aksut I
and in discovery in Cevdet Aksut II. In Cevdet Aksut III, Plaintiff has attempted to
collect its judgment against Cavusoglu’s wife, various corporations that Cavusoglu and
his wife wholly owned and controlled, and other parties to whom the Defendant in
Cevdet Aksut I (HGC Corporation) transferred assets during the months of negotiations
Cevdet Aksut I is Civil Action No. 10-2750. Cevdet Aksut II is Civil Action No. 122899. Both cases are now closed.
before the signing of the Cevdet Aksut I settlement agreement. The basic allegation is
that the defendants in Cevdet Aksut III conspired with Cavusoglu to defraud Cevdet
Before the Court is Plaintiff’s motion to “(I) compel discovery and (II) extend
the discovery period.” [ECF No. 154.] The motion is heavily opposed by all
Defendants, who contend the request is untimely and made only after the close of
discovery and on the eve of dispositive motion practice. [ECF Nos. 152-155.] For the
reasons stated below, Plaintiff’s motion is DENIED.
The background of this case and the related matters spans years and is
convoluted. This section is limited to the background related to Plaintiff’s request to
extend the discovery period and to compel, and any other relevant details. Further
discussion of the claims and issues in the cases can be found in many prior opinions.
Cevdet Aksut III was filed on May 28, 2014. At the time that the case was filed,
Cevdet Aksut II was still active and quite contentious. Indeed, the Undersigned held 19
The various Defendants have been described by the parties as (1) “the Sunrise
Defendants,” comprised of American Pistachio Commodities Corp d/b/a Sunrise
Commodities; David Cottam; and Andrew Rosen; (2) “the Cavusoglu Defendants,”
comprised of Defendants Huseyin Cavusoglu, Robin Cavusoglu, various entities
alleged to have been owned by the Cavusoglus, and the Cavusoglu children; (3)
Hinckley Allen & Synder LLP, the law firm that represented Cavusoglu in Cevdet I;
and (4) Mordy Dicker, an individual allegedly involved in the ownership and
management of the Sunrise Defendants.
conferences in Cevdet Aksut II, most of which were related to discovery problems.
And this motion cannot be placed in proper context without considering the ongoing
discovery issues in Cevdet Aksut II.
For example, on October 30, 2013, I described the then-ongoing proceedings in
Cevdet Aksut II as follows:
THE COURT: The case has a tortured history. This is a case
in which I issued scheduling orders and the scheduling orders
were – ran and no one did anything.
[I]t tells a tale of failure to comply with the discovery rules of
this court, failure to comply with the guidelines for litigation
conduct, and several other problems.
(Transcript of Proceedings, October 30, 2013, at 2:13-16; 3:24-4:2 (attached to the
Declaration of Lindsey Taylor (“Taylor Decl.”) at Exhibit H).)
And again in December 2013:
THE COURT: All right. This call follows an off-the-record
telephone call that we had this morning . . . . [T]he transcript
of that proceeding begins with the statement that I told you on
the phone this morning, that I think that this case has a tortured
history and reflects flagrant abuse of the discovery process,
abuse of the Court’s orders . . . .
But in any event, the fact of the matter is time and time again,
the parties have failed to comply with court orders, have failed
to appear, have failed to do what was required on the most
basic discovery issues . . . . And I want the parties to take this
seriously. I’m absolutely shocked at the moment. And I want
to make sure that – this level of – of displeasure is made aware
to any other court that views or considers this matter.
(Transcript of Proceedings, December 4, 2013, at 3:16 to 4:7; 4:16-25 (Taylor Decl.,
at Exhibit I) (emphasis added).)
Against the backdrop of widespread non-compliance with discovery orders in
Cevdet Aksut II, the Undersigned entered an initial scheduling order in Cevdet Aksut III
on May 25, 2016, expecting full compliance with the Order and with the Federal and
Local Rules. Fact discovery opened immediately and was set to close on February 10,
2017. (See Scheduling Order dated May 25, 2016 ¶ 3; ECF No. 104.) The Scheduling
Order specifically stated: “[s]ince all dates set forth herein are established with the
assistance and knowledge of counsel, there will be no extensions except for good cause
shown and by leave of Court, even if the parties consent.” (Id. at ¶ 16.)
On March 8 and 10, 2017, after the close of discovery, the Sunrise Defendants
and Hinckley Allen submitted letters requesting leave to file motions for summary
judgment.3 In response, the Undersigned scheduled a telephone conference on March
On the morning of the March 15 conference, Plaintiff filed a 43-page
submission, claiming that various items of discovery were outstanding and opposing
Defendants’ request to file summary judgment motions.
By letter dated March 17, 2017, I addressed Plaintiff’s last-minute filing:
At that time, the Sunrise Defendants and Dicker had a pending Rule 12© motion for
judgment on the pleadings seeking to dismiss Plaintiff’s federal and state RICO
claims. Although the parties may have discussed the issue amongst themselves, no
party requested that the Court stay discovery on any issue while the motion was
pending, and no such stay was entered. On March 28, 2017, Judge Martini granted
At the conclusion of the [March 15] conference, the Court
advised counsel that it would review the last minute filing and
respond. Having reviewed Plaintiff’s letter, it appears that
Plaintiff’s request to engage in discovery is substantially out
of time. Discovery opened in May 2016. It closed February
10, 2017. The case is already three years old. The alleged
discovery disputes contained in Plaintiff’s letter date back
months, and were never raised or even hinted at prior to
March 15, although the Court had several conferences before
then. Defendants contend that Plaintiff has waived any
discovery issues by failing to raise them prior to the close of
No reason was given for the failure to timely raise these
disputes in accordance with Local Civil Rule 37.1. However,
if Plaintiff would like to pursue this further, it may file a
formal motion seeking relief from the scheduling order and to
re-open discovery. Absent the filing of such a motion in the
next ten (10) days, the Court will enter an order scheduling
summary judgment motion practice.
[ECF No. 144.]
On March 28, 2017, Plaintiff filed the present motion to “[I] compel discovery
and [II] extend the discovery period.”4
Despite the Court’s letter permitting Plaintiff to move—if it wished—to seek “relief
from the scheduling order and to re-open discovery,” Plaintiff filed a motion that
seeks to compel discovery and argues about whether certain discovery requests seek
relevant information and whether Defendants’ objections to same are reasonable. This
is inappropriate and violates the Scheduling Order, the March 17 letter, and the Local
Rules relating to the informal presentation of discovery disputes. See Scheduling
Order ¶¶ 9-10; L. Civ. R. 37.1. Moreover, Defendants opposition states that the
parties did not meet-and-confer on many of discovery requests that Plaintiff included
in its motion to compel because Plaintiff simply accepted their responses and failed to
diligently pursue further information. The Court will only consider whether the
discovery period should be re-opened and extended. Plaintiff’s request to compel was
made without leave and after the close of discovery and without sufficiently
On April 17, 2017, Defendants filed three separate oppositions to the motion to
compel and reopen, which argue that Plaintiff simply failed to engage in discovery;
that no good cause has been shown to extend the discovery period; that much of the
discovery sought was directed to the now-dismissed RICO claims; and that they should
be permitted to move for summary judgment.
On April 27, 2017, Plaintiff requested permission to file a reply brief, which it
attached to the request.5 6
conferring with adversary counsel as required by the Local Rules. Moreover, case law
is extensive and clear that a party must move to compel discovery prior to the close of
the discovery period or the right to seek such information may be waived. See, e.g.,
Days Inn Worldwide v. Sonia Investments, 237 F.R.D. 395, 397 (N.D. Tex. 2006)
(collecting extensive case law and citing 18 cases to the effect with parentheticals,
including case law from five separate court of appeals).
The request is granted, and the Court has considered Plaintiff’s reply brief
The Court has for some time abstained from deciding this motion because Plaintiff
filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit
from Judge Martini’s Opinion and Order entered on March 28, 2017, see footnote 3,
supra. A notice of appeal generally divests the district court of jurisdiction over
aspects of the case under appeal. See Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982). However, the filing of a premature notice of appeal does not
deprive the district court of jurisdiction. See, e.g., Bensalem Twp. v. Int’l Surplus
Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994). And here, Plaintiff’s appeal is from
the grant of a partial dismissal motion and would appear to be premature. To that end,
the Third Circuit has issued a briefing notice questioning jurisdiction over the appeal.
Moreover, the issue that is the subject of this opinion—whether an extension of the
discovery period is appropriate—is clearly separate from the issue on appeal—Judge
Martini’s dismissal of federal and state RICO claims—meaning that the Court retains
jurisdiction over the discovery issue regardless of whether Plaintiff’s appeal is
premature. Liberty Mut. Ins. Co. v. Gunderson, 387 Fed. Appx. 480, 486 (5th Cir.
2010) (“Where the order on appeal does not dispose of the entire case, however, the
district court may still proceed with matters not involved with the appeal.”)
Given the age of the case and the need to move the proceedings forward, and
The Court’s Scheduling Order closed fact discovery on February 10, 2017.
Federal Rule of Civil Procedure 16(b)(4) provides that “a schedule may be modified
only for good cause and with the judge’s consent.” Id. Rule 16 vests the Court with
broad discretion to control and manage discovery. See, e.g., Newton v. A.C. & Sons,
Inc., 918 F.2d 1121, 1126 (3d Cir. 1990) (“The intent and spirt of Rule 16 is to allow
courts to actively manage the timetable of case preparation.”); In re Fine Paper
Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982) (“We will not upset a district court’s
conduct of discovery procedures absent a demonstration that the court’s actions made it
impossible to obtain crucial evidence, and implicit in such a showing is proof that more
diligent discovery was impossible.”). To establish “good cause,” the party seeking to
alter a schedule must show that the deadlines in an order “cannot reasonably be met
despite the diligence of the party seeking the extension.” Harrison Beverage Co. v.
Dribeck Importers, Inc., 133 F.R.D. 463, 469 (D.N.J. 1990); see also Rearick v. Penn.
State Univ., 416 Fed. Appx. 223, 225 (3d Cir. 2011).
The good cause standard is “not a low threshold.” J.G. v. C.M., 2014 U.S. Dist.
LEXIS 56143, at *4 (D.N.J. Apr. 23, 2014) (Martini, J.). And a scheduling order “is
not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by
because the issue being appealed is separate from the discovery issue herein, the Court
is satisfied that it retains jurisdiction to decide the present motion. See, e.g., Mondow
v. Fountain House, 867 F.2d 798, 800 (3d Cir. 1989); Alaska Elec. Pension Fund v.
Flowserve Corp., 572 F.3d 221, 233 (5th Cir. 2009).
counsel without peril.” Johnson v. Mammoth Rec. Inc., 975 F.2d 604, 610 (9th Cir.
1992); see also Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 1992 U.S. Dist. LEXIS
11692 (D.N.J. July 20, 1992). As a result, permitting discovery extensions in the
absence of good cause would “deprive the trial judges of the ability to effectively
manage the cases on their overcrowded dockets.” Koplove v. Ford Motor Corp., 795
F. 2d 15, 18 (3d Cir. 1986). In short, counsel must diligently pursue discovery and, if
it is realized that there will be a need for an extension, pursue any extension within the
discovery period, the rules, and prior to the expiration of dates in the scheduling order:
if the Rules are to mean anything, parties must diligently try
to follow them and courts must enforce them, even if means
that cases must sometimes be finally determined on
procedural grounds rather than on their substantive merits.
The purposes of the Rules is to provide litigants with a
uniform set of procedures that will allow them to ‘secure the
just, speedy, and inexpensive determination’ of their dispute.
See Fed. R. Civ. P. 1. Litigants and their lawyers are entitled
to rely on the assumption that all the other litigants and
lawyers are operating under the same set of rules and will be
held accountable by the courts for noncompliance. If courts
consistently ignore or excuse flagrant violations of the Rules,
the Rules will be rendered illusory and the whole federal
judicial system will become riddled with uncertainty,
inconsistency, and delay. Litigants and their attorneys must
diligently attempt to follow the Rules, regardless of whether
it is convenient or desirable.
Mused v. United States Dep’t of Agric. Food & Nut. Serv., 169 F.R.D. 28, 25
(W.D.N.Y. 1996); see also Dag Enterprises, Inc. v. Exxon Mobile Corp., 226 F.R.D.
95, 104-06 (D.D.C. 2005).
Plaintiff did not comply with the Court’s scheduling order and did not diligently
pursue any discovery issues with the Court. The Court heard nothing about any
discovery issues for months, and not at all until a month after the discovery period
closed. Nevertheless, Plaintiff has offered nine reasons why discovery should be
reopened and extended. (Pl.’s Br. 11-13.) However, as is explained for each reason
offered (in quotes) below, none of the reasons really explain or have anything to do
with why Scheduling Order deadlines were not met and what good cause has been
shown for the belated attempt to extend them.
First, “there has been no prior request to extend discovery.” This is immaterial.
The parties were provided 9 months to complete discovery in the case. The discovery
end-date passed and no party requested an extension of discovery. Only when
Defendants sought permission to file summary judgment motions did the issue of
discovery arise. This is especially pertinent given the proceedings in Cevdet Aksut II,
where the many lengthy hearings and failures to comply with Court Orders was
repeatedly noted. In short, counsel was more than fairly on notice that Court Orders
should be respected and would be enforced in this case. Plaintiff had nine months to
conduct discovery, did not seek an extension during those nine months, and has not
shown that the discovery he now seeks was otherwise unavailable or unattainable
during the many months discovery was open. This does not amount to good cause.
See, e.g., LeBoon v. Lancaster Jewish Community Ctr. Ass’n, 503 F.3d 217, 235 (3d
Cir. 2007) (affirming denial of motion to re-open discovery filed two months after
close of extended discovery period); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 505
n.7 (3d Cir. 1997).
Second, “Plaintiff has complied with all discovery requests served upon it by
the numerous defendants and produced 6,000 documents.” This does not amount to
good cause to extend discovery. Plaintiff was obligated to respond to discovery served
upon it and produce responsive documents when appropriate. Had it not responded to
discovery and Defendants failed to pursue it, it would be Defendants that would be
precluded from seeking additional discovery.
Third, “the relative complexity of the claims and defenses and issues raised
herein.” This is the third iteration of Cevdet litigation. Plaintiff is familiar with the
claims and defenses. Moreover, when the Court provided the nine month discovery
period, it was expressly stated in the Scheduling Order that “[s]ince all dates set forth
herein are established with the assistance and knowledge of counsel, there will be no
extensions except for good cause shown and by leave of Court, even if the parties
consent.” (Scheduling Order ¶ 16.) If nine months was insufficient, Plaintiff should
have raised it at the time the schedule was set, and certainly before the discovery
Fourth, “the burden of complying with discovery obligations was far greater on
the Plaintiff than it was on each individual defendant.” Whatever burden was involved
in responding to discovery requests was created by the nature of the pleading Plaintiff
decided to pursue. In any event, this argument does not establish the required “good
Fifth, “the substantial intervening motion practice concerning” the motion for
partial dismissal of the RICO claims. Again, this is not good cause for a discovery
extension. Defendants filed one brief running 15-pages in length seeking to dismiss
two counts in the Complaint. Plaintiff filed a single response on December 5, 2016.
The filing of one brief in the course of 9 months, and more than two months prior to
the expiration of the discovery end-date, does not amount to good cause.
Sixth, “the defendant’s culpability in preventing the completion of discovery.”
The record does not support Plaintiff’s contention that Defendants are “culpable” for
the failure to timely raise discovery issues with the Court. Instead, the record reflects
that both the Sunrise Defendants and Hinckley Allen responded to discovery requests
with objections, including relevance and privilege objections. Plaintiff has the
obligation to pursue further discovery if it feels it is being denied access to appropriate
and discoverable information. That didn’t happen in this case. The Court was not
contacted or advised about any discovery issues until more than a month after
discovery closed. The history of Cevdet Aksut II and the Court’s admonitions should
have put counsel on ample notice that compliance would be expected in this case.
Good cause requires that the party seeking an extension show that the deadlines could
not “reasonably be met despite the diligence of the party seeking the extension.”
Harrison Beverage Co., 133 F.R.D. at 469. No such showing has been made.
Seventh, “unforseen and emergent conflicting client matters that engaged
Plaintiff’s counsel, including a federal bench trial . . . and the filing of two emergency
Chapter 11 bankruptcy proceedings in the Southern District of New York.” Plaintiff
had the obligation to notify the Court that he had other pressing matters once it became
apparent that he may not be able to meet the Scheduling Order deadline. See, e.g., Dag
Enterprises, Inc., 226 F.R.D. at 104-06. That did not occur. Additionally, while the
Court does not minimize other proceedings, it appears that the federal trial referenced
was a one-day bench trial that occurred in the midst of a nine-month discovery period.
(See Taylor Decl., Ex. F.)
Eighth, “the fact that Mr. Cavusoglu has admitted (in the 2012 action) that he
spoliated critically relevant evidence to this case and that the only other source of that
information is Sunrise, Hinckley Allen and Dicker.” This may be true; however, it is
not good cause to extend the schedule and excuse the delay.
Ninth, “Plaintiff’s diligence and determination in successfully prosecuting the
2010 and 2012 actions to judgment after a jury trial cannot be questioned.” True,
however this does not establish good cause in this context.
Discovery was open in this case for nine months. A scheduling order had been
entered and compliance was expected, especially in light of the proceedings in the prior
Cevdet cases. The discovery period closed without discovery issues being raised.
More than a month after the close of discovery—and only in response to requests by
Defendants to file dispositive motions—Plaintiff claimed that additional discovery was
In light of the above, good cause for an extension of the discovery period has
not been shown. Plaintiff’s motion is DENIED.
United States Magistrate Judge
Dated: July 14, 2017
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