Harger Da Silva v. New York City Transit Authority et al

Filing 233

MEMORANDUM AND ORDER: The Court finds no error let alone clear errorin Magistrate Judge Scanlons decision. It entirely agrees that discovery has gone on far too long and has resulted in more than ample material to allow the parties to fully develop their theories of liability and defense. Accordingly, the plaintiffs 220 appeal and objections to the electronic order of January 20, 2023, are overruled. Ordered by Judge Frederic Block on 7/27/2023. (MI)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
LUISA JANSSEN HARGER DA
SILVA,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 17-CV-4550-FB-VMS

-againstNEW YORK CITY TRANSIT
AUTHORITY, METROPOLITAN
TRANSPORTATION AUTHORITY,
and RAQIA SHABAZZ,
Defendants.
------------------------------------------------x
Appearances:
For the Plaintiff:
DAVID A. ROTH
Roth & Roth LLP
192 Lexington Avenue, Suite 802
New York, New York 10016

For the Defendants:
ANDREW P. KEAVENEY
Landman Corsi Ballaine & Ford P.C.
120 Broadway, 13th Floor
New York, New York 10271

BLOCK, Senior District Judge:
The plaintiff in this diversity action was seriously injured when she fell onto
a subway platform and was struck by an oncoming train. The accident occurred in
August 2016 and suit was filed a year later. The parties have spent the six years
since then locked in an all-consuming pretrial battle that has yielded, in Magistrate
Judge Scanlon’s estimation, “tens of thousands of pages, [and] even possibility
hundreds of thousands of pages, of discovery.” Elec. Order (Jan. 20, 2023).
1

Magistrate Judge Scanlon has addressed the discovery schedule “more than
two dozen times,” id., and granted numerous extensions.

She eventually set

January 16, 2023, as the final deadline for fact and expert discovery, warning the
parties “not [to] assume that the Court will approve extensions given the age of the
case and volume of discovery already produced,” Elec. Order (July 11, 2022), and
urging them to move on to substantive issues.
Three days before the January 16th deadline, the plaintiff moved for a “short
three-month extension.” Ltr. from Elliott Shields (Jan. 13, 2023). She argued that
it had not been possible to schedule certain depositions until Magistrate Judge
Scanlon had ruled on various motions relating to the scope of those depositions.
On January 20, 2023, Magistrate Judge Scanlon grated the motion in part, in
that she allowed the depositions to take place despite being scheduled to take place
after the January 16th deadline. In addition, she modified the deadlines for expert
discovery. However, she denied the motion in all other respects: “[N]o additional
fact discovery is allowed.” Elec. Order (Jan. 20, 2023).
The plaintiff objects to the portion of Magistrate Judge Scanlon’s order
denying additional fact discovery. Pursuant to Federal Rule of Civil Procedure
72(a), “[t]he district judge in the case must consider timely objections and modify

2

or set aside any part of the order that is clearly erroneous or is contrary to law.”1
An order is “clearly erroneous” if the reviewing court “is left with the definite and
firm conviction that a mistake has been committed.” Easley v. Cromartie, 532
U.S. 234, 242 (2001) (internal quotation marks omitted).
The plaintiff argues extensively—and with some justification—that the
defendants have unnecessarily protracted the discovery process. Be that as it may,
her reason for requesting a further extension was that the scheduling of depositions
was delayed by disputes about the scope of those depositions. As Magistrate Judge
Scanlon cogently explained, those disputes left open many other areas of inquiry
and were, in any event, resolved against the plaintiff. See Elec. Order (Jan. 20,
2023) (“[T]he issues in those motions related to speed, recent track-entry reports,
and STV documents that Plaintiff had no right to expect would be produced.”).
Subsequent events have confirmed that reasoning: the parties have now completed
fact and expert discovery and are finally ready to move forward with dispositive
motions for summary judgment, all without any apparent prejudice to the plaintiff.2
1

The rule requires objections to be filed and served within 14 days after
entry of the order. See Fed. R. Civ. P. 72(a). Although the plaintiff’s objections
were filed ten days beyond this deadline, the Court excuses the untimeliness.
2

The plaintiff has moved for sanctions regarding defendans’ Rule 30(b)(6)
witness and moved to strike defendants’ rebuttal expert reports. Those motions
remain pending and are unrelated to Magistrate Judge’s Scanlon’s denial of
additional fact discovery.
3

In sum, the Court finds no error—let alone clear error—in Magistrate Judge
Scanlon’s decision. It entirely agrees that discovery has gone on far too long and
has resulted in more than ample material to allow the parties to fully develop their
theories of liability and defense. Accordingly, the plaintiff’s objections to the
electronic order of January 20, 2023, are overruled.
SO ORDERED.

_/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
July 27, 2023

4