RKI Construction, LLC v. WDF Inc. et al

Filing 95

ORDER. For the reasons stated in the annexed memorandum and order, WDF violated a court order when it did not designate an expert by November 16, 2015. The magistrate judge's order providing sanctions for failure to comply with a court order and for a late request for an extension to complete expert discovery was accordingly neither clearly erroneous nor contrary to law. The sanctions order 90 is accordingly AFFIRMED. Ordered by Judge Kiyo A. Matsumoto on 4/13/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
RKI CONSTRUCTION, LLC,
Plaintiff,

MEMORANDUM AND ORDER
14-cv-1803 (KAM) (VMS)

-againstWDF INC.;
LIBERTY MUTUAL INSURANCE CO.;
ANDRON CONSTRUCTION CORP.;
TRAVELERS CASUALTY AND SURETY CO. OF
AMERICA,
Defendants.
-againstCITIZENS INSURANCE CO. OF AMERICA;
LEROY KAY; and
ALICE KAY
Additional Defendants
on the Counterclaims
--------------------------------------X
MATSUMOTO, United States District Judge:
WDF Inc. has sought this court’s review of Magistrate
Judge Scanlon’s decision imposing monetary sanctions under Fed. R.
Civ.

P.

37

for

(1)

WDF’s

failure

to

comply

with

discovery

scheduling orders and (2) WDF’s late requests for an extension of
discovery. (See ECF No. 90, at 2.)
“Monetary

sanctions

pursuant

to

Rule

37

for

noncompliance with discovery orders usually are committed to the
discretion of the magistrate, reviewable by the district court
under the ‘clearly erroneous or contrary to law’ standard.” Thomas
E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990).

After the discovery period was extended at least four
times to ultimately total more than 17 months (see 1/8/2016 Order),
after WDF confirmed with the court as recently as June 2, 2015
that WDF did not anticipate any expert discovery (see id.; see
also ECF No. 49), and with only three days remaining before the
close of all discovery at the end of 2015, WDF requested an
extension of discovery on December 28, 2015. (ECF Nos. 67, 74.)
WDF sought the extension in order to designate an expert, prepare
and serve an expert report, and give other parties time to depose
the expert. (Id.; see also 1/8/2016 Order.) The magistrate judge
ultimately permitted WDF to submit a belated rebuttal expert
report, but imposed sanctions on WDF for WDF’s “failure to comply
with

the

Court’s

scheduling

orders

and

late

requests

for

an

extension.” (ECF No. 90.)
WDF

essentially

argues

in

its

letter

brief,

which

includes no citation to any authority, that it did not directly
violate a court order:
WDF did not fail to comply with any order of this Court
with respect to the designation of an expert, or with
respect to its request for an extension of the discovery
schedule, and did not make an untimely application for
same.
(ECF No. 81.) After a careful inspection of the record in this
case, the court disagrees.
At the initial discovery conference, on July 29, 2014,
the magistrate judge issued an order requiring that expert reports
2

be completed on or before February 20, 2015, with rebuttal reports
due on March 20, 2015 and expert depositions completed by April
27, 2015. 1 (ECF No. 23.) The deadline for expert discovery was
later pushed to June 26, 2015. (1/15/2015 Scheduling Order.) The
parties subsequently sought multiple extensions that were granted.
(ECF Nos. 50, 54, 61, 8/21/2015 Order.) On August 21, 2015, the
court stated that all discovery must be completed by October 30,
2015. (8/21/2015 Order.) On October 14, 2015, the parties consented
to a limited extension of discovery that permitted Citizens to
provide expert disclosure on or before November 16, 2015 and
produce its expert witness for a deposition on or before December
4, 2015. (10/14/2015 Scheduling Order.) In the same October 14,
2015 order, the court explicitly stated that “[a]ll other deadlines
remain.” (Id.)
On

October

29,

2015,

the

parties

sought

a

60-day

extension of the discovery schedule to permit the parties to
“resolve this matter at a mediation scheduled for December 4, 2015
without having to incur the costs of further litigation.” (ECF No.
65, Joint Motion for Extension of Time to Complete Discovery.)
WDF, which drafted the October 29, 2015 letter on behalf of all
parties, specifically carved out an exception to the requested 60day extension: “The parties are not seeking an extension of the

1 Although the magistrate judge’s July 29, 2014 scheduling order refers to the
expert deposition completion date as “4/27/2014,” the court presumes this was
a typographical error, since the order itself was issued months after that date.

3

November 16, 2015 deadline for expert disclosure set in the Court’s
October 14, 2015 Scheduling Order.” (Id. (emphasis added)) The
court granted the parties’ request for an extension of time to
complete discovery until December 31, 2015. (10/30/2015 Order.) On
December 16, 2015, WDF first notified the court that “WDF . . .
anticipates

that

it

will

be

making

an

application

seeking

additional time to designate an expert.” (ECF No. 66.) As noted
earlier, on December 28, 2015, with three days before the close of
all discovery, WDF formally requested additional time to designate
an expert. (ECF No. 67.) WDF did not notify the court that it had
retained an expert until January 8, 2016, and indicated that its
expert would prepare his report by “early-February 2016.” (ECF No.
74.)
Given

WDF’s

representation

in

its

October

29,

2015

letter, WDF specifically contemplated that the December 31, 2015
discovery deadline did not contemplate an extension for expert
disclosure. (ECF No. 65.) WDF explained in the October 29, 2015
letter

that

the

deadline

for

expert

disclosure

would

remain

November 16, 2015. (Id. (“The parties are not seeking an extension
of the November 16, 2015 deadline for expert disclosure.”)) WDF,
as explained above, did not formally retain an expert until January
8, 2016, almost two months after the November 16, 2015 deadline
that WDF itself stated would remain in place. (ECF Nos. 65, 74.)
Even if the court were to construe WDF’s December 16, 2015 letter
4

(ECF No. 66) as putting all parties on notice that it would in
fact require an expert, WDF would still have been a month late in
complying

with

the

November

16,

2015

deadline

for

expert

disclosure.
WDF therefore violated a court order when it did not
designate an expert by November 16, 2015. The magistrate judge’s
order providing sanctions for failure to comply with a court order
and

for

a

late

request

for

an

extension

to

complete

expert

discovery was accordingly neither clearly erroneous nor contrary
to law. The sanctions order (ECF No. 90) is accordingly AFFIRMED.
SO ORDERED.
__________/s/_______________
KIYO A. MATSUMOTO
United States District Judge
Dated:
April 13, 2016
Brooklyn, New York

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