Broadspring, Inc. v. Congoo, L.L.C. et al

Filing 258

MEMORANDUM OPINION AND ORDER re: 251 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Jesse M. Furman from Norman C. Simon dated November 12, 2014 filed by Congoo, L.L.C., Rafael Consentino, Ashraf Nashed: that Defendants' motion to reopen discovery is DENIED. The Clerk of the Court is directed to terminate Docket Number 251. (Signed by Judge Jesse M. Furman on 11/18/2014) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BROADSPRING, INC.,
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Plaintiff,
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-v:
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CONGOO, L.L.C. d/b/a ADIANT, et al.,
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Defendants.
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11/18/2014
13-CV-1866 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Discovery in this case closed exactly one year ago on November 18, 2013. In an Order
entered shortly before that deadline, the Court unambiguously reminded the parties “that no
further extensions of these dates will be granted.” (Docket No. 60). Thereafter, the parties filed
cross motions for summary judgment and motions to preclude under Daubert. By Opinion and
Order entered on August 20, 2014, the Court resolved those motions. (Docket No. 163). Since
then, the parties have submitted their proposed Joint Pretrial Order and motions in limine, and
the Court has set January 12, 2015, as a trial-ready date. Despite all that, on November 12, 2014,
Defendants filed a letter motion seeking to reopen discovery to allow them to call a damages
expert. (Docket Nos. 251, 257). Plaintiff has opposed the motion. (Docket No. 253).
A district court has significant discretion in deciding whether to preclude a party’s
untimely request to introduce a new witness. See Bice v. Robb, 511 F. App’x 108, 110 (2d Cir.
2013). The Second Circuit has pointed to four factors that must guide the exercise of this
discretion: “(1) the party’s explanation for the failure to comply with the discovery order; (2) the
importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing
party as a result of having to prepare to meet the new testimony; and (4) the possibility of a
continuance.” Softel, Inc. v. Dragon Med. & Scientific Commc’ns, Inc., 118 F.3d 955, 961 (2d
Cir. 1997). Here, all four factors counsel against reopening discovery at this late date.
First, Defendants have not identified any reason why the need for this expert was not
apparent prior to the close of discovery or, at the very least, prior to submission of the parties’
joint pre-trial order. Indeed, the only relevant development appears to be Defendants’ retention
of new counsel. That alone does not justify reopening discovery. Cf. Anderson v. Kaplan, No.
08-CV-0341 DGT (JO), 2008 WL 4833941, at *3 (E.D.N.Y. Nov. 4, 2008) (“[T]he fact that the
parties have recently decided to retain new counsel will not be deemed sufficient reason to
adjourn any deadline.”). Second, the testimony of Defendants’ proposed witness would be
limited to the issue of damages and would play no role in its affirmative case, limiting any harm
caused by precluding this witness. Third, reopening discovery is likely to prejudice Plaintiff. It
would have to depose Defendants’ witness, possibly need to secure an additional rebuttal

witness, and could result in further Daubert litigation — all while the parties should be preparing
for trial (and celebrating the forthcoming holidays). Cf. Zerega Ave, Realty Corp. v. Hornbeck
Offshore Transportation LLC, 571 F.3d 206, 213 (2d Cir. 2009) (finding no prejudice where the
potential witness had already been deposed). Finally, a trial-ready date has already been set and
the Court will not entertain a continuance this late in the litigation, especially where the
ostensible reason for Defendants’ request — the filing of Plaintiff’s Second Amended Complaint
— took place more than two months prior to that request.
In seeking to reopen discovery, Defendants cite Zerega Ave, where the Second Circuit
held that the district court had committed error in precluding a party from calling a witness. But
the facts in Zerega Ave are a far cry from those here, and the contrast merely underscores the
weakness of Defendant’s motion. In Zerega Ave, both parties had failed to timely comply with
an order regarding the admissibility of expert testimony under Daubert — an order the Court of
Appeals found ambiguous no less — and the relevant expert had already been deposed. Under
those circumstances, the Court of Appeals held that it was error for the district court to exclude
only one side’s witness on timeliness grounds. Here, by contrast, the Court’s orders setting the
discovery deadline (and Joint Pretrial Order deadline) could not have been clearer; Defendants
are the only ones who failed to comply with those deadlines; reopening discovery would require
a deposition of Defendants’ proposed expert and perhaps much more; and Defendants
inexplicably waited almost a full year after the close of discovery, months after the Court ruled
on summary judgment and the admissibility of expert testimony, and weeks after submission of a
joint pretrial order to make their request. The Court plainly has discretion to preclude
Defendants’ expert under those circumstances; indeed, if it were error to do so, then deadlines
(not to mention the Second Circuit’s four-factor test) would be virtually meaningless.
Accordingly, Defendants’ motion to reopen discovery is DENIED. The Clerk of the
Court is directed to terminate Docket Number 251.
SO ORDERED.

Dated: November 18, 2014
New York, New York

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