Zsa Zsa Jewels, Inc. v. BMW of North America, LLC et al
ORDER dismissing 54 Objection to Memorandum And Order of Chief Mag. Judge Roanne L. Mann dated November 17, 2016. Ordered by Judge I. Leo Glasser on 12/27/2016. (Chiodo, Marie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ZSA ZSA JEWELS, INC.,
MEMORANDUM AND ORDER
15 CV 6519 (ILG)
BMW OF NORTH AMERICAN, LLC, et al.,
GLASSER, United States District Judge:
Pending before the Court is an objection to the Memorandum and Order of
Magistrate Judge Mann denying the plaintiff’s motion to extend a scheduling order to
permit it to add new parties to its complaint. That order, issued on May 18, 2016, set
the dates for fact and expert discovery and also provided that “[p]leadings may be
amended and new parties added until June 13, 2016.” Five months after the expiration
of that deadline, the plaintiff sought permission to extend it.
The dispositive issue was thus plainly to be resolved by the applicability of Rule
16(b)(4), Fed. R. Civ. P., which provides that “[a] schedule may be modified only for
good cause and with the judge’s consent.” In a Memorandum and Order, familiarity
with which is assumed, Magistrate Judge Mann, following a concisely detailed review of
the procedural history of the case, held that “[s]imply put, plaintiff has not shown good
cause to retroactively extend that deadline by five months – and to substantially
increase the likelihood that the discovery schedule will have to be further adjourned to
accommodate the appearance of a new defendant more than one year after the
commencement of this lawsuit. Under these circumstances, the Court declines to
modify the scheduling order.” DE 53 at 7.
The plaintiff timely filed its objection to that determination. In a Memorandum
in support of its objection it presents a contrasting view of the procedural history of the
case and based on that view urges this Court to “overturn” Judge Mann’s Order for
essentially two reasons, namely, that no prejudice is apparent and that the interest of
justice requires it. DE 54, familiarity with which is assumed.
At the outset, the Court notes its awareness that the Court of Appeals for this
Circuit has not, as yet, definitively spoken on the dispositive or non-dispositive
consequence of a decision to amend a motion to amend a pleading. The cases
recognizing that lacuna have been gathered and discussed in Wilson v. City of New York,
2008 WL 190912 (E.D.N.Y.); Cohen v. G&M Realty L.P., 2015 WL 1182712, n.1
(E.D.N.Y.), among others. See also dictum in Kilcullen v. N.Y. State Dept. of
Transportation, 55 F. App’x 583, 585 (2d Cir. 2003). A discussion of them, extended or
otherwise, would be an affectation of research and contribute little, if anything, to
informing the preferred view of the dispositional issue given the Court’s determination
that the objection should be dismissed whether the standard of review of the
Magistrate’s Order is “clearly erroneous or contrary to law” (Rule 72(a)) or de novo
Given the unambiguous instruction of Rule 16(b)(4), there is no ground upon
which this Court could find that Magistrate Judge Mann’s Order is clearly erroneous
and contrary to law, and given the comprehensive review of the procedural history of
this case Judge Mann’s Order makes manifest, this Court would be driven to the same
conclusion upon a de novo review. Instructive and persuasive in this regard is National
Hockey League, et al. v. Metropolitan Hockey Club, Inc., et al., 427 U.S. 639 (1976).
That case presented the validity of the district court’s dismissal, pursuant to Fed. R. Civ.
P. 37, of the respondents’ antitrust action against petitioners for failure to timely answer
written interrogatories ordered by that Court. The Third Circuit of Appeals reversed the
district court and was, in turn, reversed by the Supreme Court, which wrote at 642-643:
There is a natural tendency on the part of reviewing courts, properly
employing the benefit of hindsight, to be heavily influenced by the severity
of outright dismissal as a sanction for failure to comply with a discovery
order. It is quite reasonable to conclude that a party who has been
subjected to such an order will feel duly chastened, so that even though he
succeeds in having the order reversed on appeal he will nonetheless
comply promptly with future discovery orders of the district court.
But here, as in other areas of the law, the most severe in the spectrum of
sanctions provided by statute or rule must be available to the district court
in appropriate cases, not merely to penalize those whose conduct may be
deemed to warrant such a sanction, but to deter those who might be
tempted to such conduct in the absence of such a deterrent.
In the same vein and similarly informative, see Noonan v. Cunard Steamship Co.,
375 F.2d 69 (2d Cir. 1967).
The objection is hereby dismissed.
Brooklyn, New York
December 27, 2016
I. Leo Glasser
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