Wood et al v. Mutual Redevelopment Houses, Inc. et al

Filing 249

ORDER denying 201 Letter Motion for Discovery. For the reasons stated above, discovery in this case is closed, and will not be reopened by this Court. Any pending motion by Plaintiffs to compel further document production from Defendants is denie d. Any request by any party to compel depositions is denied. Plaintiffs' request for leave to amend the Complaint is denied. Defendants' motion to quash certain subpoenas (Dkt. 201) is denied. This Court will not entertain any further disco very motions, including any motion to enforce any outstanding subpoenas. In light of the rulings herein, the Clerk of Court is directed to close the motion filed in this action at Dkt. 201. If the parties anticipate filing any summary judgment motion s, they are directed to confer and jointly to propose a briefing schedule no later than November 26, 2019. If no party plans to file a motion for summary judgment, then the parties should consult Judge Torres' Individual Practices in Pro Se Cases with respect to trial submissions. SO ORDERED. (Signed by Magistrate Judge Debra C. Freeman on 11/19/2019) Copies Mailed By Chambers. (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TZVEE WOOD, et al.,

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
I
DATE FILED: / / / r9 / /~
I

I

Plaintiffs,
14cv7535 (AT) (DF)
-against-

ORDER
MUTUAL REDEVELOPMENT HOUSES, INC.,
et al.,
Defendants.
DEBRA FREEMAN, United States Magistrate Judge:
Given the age of this case and the repeated extensions of the discovery period that this
Court has allowed, this Court expressly warned the parties that its last-granted extension was to
be considered "final," and that discovery would not be extended past September 27, 2019,
"absent a showing of extraordinary cause." (Dkt. 177, at 7.) Nonetheless, pro se plaintiffs
Tzvee Wood ("Wood") and Andrea Malester ("Malester") (together, "Plaintiffs") have sought
yet another extension of the discovery cut-off, complaining that misconduct by Defendants'
counsel has deprived them of both relevant documents and needed depositions. Plaintiffs have
additionally sought leave to amend their Complaint, well past the amendment deadline set by this
Court. For their part, Defendants have complained about Plaintiffs' conduct in resisting
depositions, 1 and have sought to quash certain non-party subpoenas served by Plaintiffs.
After reviewing the entirety of the lengthy Docket (which contains no fewer than 248
entries), to ensure that this Court is leaving no outstanding discovery dispute unresolved, this

1

It is not clear from Defendants' submissions whether they are joining Plaintiffs' request
for a discovery extension, so as to complete the depositions that they have noticed, but this
ambiguity has no effect on the Court's rulings herein.

Court concludes that any outstanding motions to compel discovery should be denied and the
discovery deadline should not be extended further. In short, the parties have had more than
ample opportunity to conduct discovery in this action; this Court could not have been more clear
in its warning to the parties that they needed to take seriously the final discovery deadline set by
the Court; and the parties have failed to demonstrate either bad faith by their adversaries or any
other circumstances that would constitute extraordinary cause to modify that final deadline. This
Court further concludes that Plaintiffs have not satisfied the “good cause” standard under
Rule 16 of the Federal Rules of Civil Procedure for their belated request to amend their
Complaint, and that Defendants have not demonstrated standing to challenge the subpoenas they
seek to quash. Accordingly, for the reasons discussed further below, all pending motions before
this Court are denied.
A.

Relevant Procedural History

Initially, this Court largely stayed discovery in this action pending resolution of
Defendants’ motion to dismiss the Complaint. (See Dkt. 35.) That motion and a cross-motion
by Plaintiffs to amend their Complaint (both of which were delayed by numerous extension
requests and other filings) were decided in March 2016 (Dkt. 70), in a decision by the
Honorable Analisa Torres that resulted in the dismissal of many, but not all, of Plaintiffs’ claims
and the denial of their request for leave to amend (see id.). Plaintiffs then moved for
reconsideration, and, after many additional submissions and extensions of filing deadlines, that
motion was, for the most part, denied in March 2017. (Dkt. 111.)
In light of the resolution of the motion to dismiss, this Court lifted the discovery stay on
March 8, 2017, and scheduled a case management conference for March 23, 2017. (Dkt. 114.)
At that conference, this Court set a deadline of July 7, 2017 for any further motions to amend the

2

pleadings, and September 15, 2017 for the completion of all fact discovery. (Dkt. 115.) This
Court then held follow-up case management conferences on June 21, 2017 (at which it extended
Plaintiffs’ deadline to file any further motions to amend to August 4, 2017 (see Dkt. 116)), and
on October 17, 2017 (at which it extended the deadline for motions to amend to November 10,
2017, and the deadline for the completion of fact discovery to January 31, 2018 (see Dkt. 126)).
On January 3, 2018, Scott Richman, Esq. (“Richman”), filed a Notice of Appearance on
behalf of Plaintiffs (Dkt. 131), and, on February 14, 2018, Defendants’ counsel, joined by
Richman, submitted a joint proposal to modify the schedule for remaining discovery (Dkt. 135).
Counsel represented in their joint submission that “[t]he parties ha[d] discussed their outstanding
discovery disputes [and had] exchanged written communications narrowing their demands.”
(Id.) Counsel further indicated that they had “agree[d] that any remaining documents responsive
to the communications, to the extent discoverable, [were] to be exchanged on or before April 2,
2018”; that “the parties [would] take depositions of the remaining parties, to the extent required
or requested, on or before May 31, 2018”; that “[a]ny post-deposition supplemental discovery
demands [would have to] be served on or before June 15, 2018 [with] responses to those
demands . . . served on or before July 16, 2018”; and that “the discovery cut-off [should] be set
to August 3, 2018.” (Id.) By Order dated February 22, 2018 (Dkt. 137 (Mem. Endors.)), and in
recognition that Plaintiffs had previously been proceeding pro se, this Court approved the jointly
proposed extensions to the discovery schedule.
On March 22, 2018, however – just one month later – Richman wrote a letter to the Court
seeking leave to withdraw from representing Plaintiffs in this action. (Dkt. 142.) While
Richman stated in his letter that, during the time he had worked on the case, he had “resolve[d]
some discovery disputes with Defendants,” he also indicated that plaintiff Wood had been

3

“uncooperative” and that his “conduct ha[d] seriously impaired [counsel’s] ability to represent
him.” (Id.) After more filings by the parties, this Court held a conference on September 6, 2018,
which was attended by Plaintiffs, as well as by counsel. At that conference, this Court granted
Richman’s motion to withdraw, and also addressed, on the record, a number of discovery
disputes raised by the parties. 2 Of particular relevance, this Court stated that, to the extent
Richman, while still acting as Plaintiffs’ counsel of record, had proceeded to negotiate certain
discovery compromises with opposing counsel – in particular, in a meet-and-confer session
between counsel on May 14, 2018 – this Court would not revisit those compromises, but rather
would consider Richman’s May 14 discovery agreement to be binding on Plaintiffs. As
Plaintiffs expressed a lack of understanding as to the scope of that agreement, however, the
Court requested that Defendants’ counsel clarify this in a further submission.
On October 8, 2018, Defendants’ counsel submitted a letter to the Court clarifying that
counsel had agreed that Defendants would produce certain categories of documents, rather than
respond to Plaintiffs’ individual requests (see Dkt. 157, at 3-4), and attaching a transmittal letter
dated June 29, 2018, which, Defendants’ counsel claimed, demonstrated production by
Defendants of the agreed categories of documents (id., Ex. A). Plaintiffs, however, made several
submissions to the Court disputing Defendants’ counsel’s representation as to the substance of
the agreement that had been negotiated by Richman on their behalf. (See, e.g., Dkt. 162.) In a
February 13, 2019 Order, this Court noted that “the precise terms of the May 14 discovery
2

The September 6 conference was electronically recorded, and this Court has reviewed
the recording of that conference in connection with the preparation of the within Order.
Although none of the parties has apparently requested a transcript of that recording to date, the
parties remain free to do so. Instructions for ordering a transcript, with the applicable fee
schedule, can be found on the “Courtroom Technology” page of the Court’s website, at
https://nysd.uscourts.gov/court-tech, under the section entitled “Electronic Court Recording
(ECR).”
4

agreement . . . remain[ed] somewhat unclear” and directed both Defendants and Plaintiffs to
submit any additional “non-privileged writings (including any emails to or from [Plaintiffs’
former counsel]) that memorialize[d] the specific terms” of the agreement. (Dkt. 163, at 1-2.)
After Defendants’ counsel then submitted certain email exchanges and other correspondence
with Richman (Dkt. 164), this Court, by Order dated March 21, 2019 (Dkt. 177), found that those
communications appeared to memorialize counsel’s agreement “with respect to further responses
Defendants agreed to provide to Plaintiffs’ outstanding document requests . . . and [that] the
responses provided by Defendants in [their] June 29 letter appear[ed] sufficient” (id., at 2
(emphasis omitted)). 3
In its March 21, 2019 Order, this Court also addressed the parties’ continued failure to
work cooperatively to schedule depositions. On that point, the Court noted the parties’ failure to
comply with its February 13, 2019 Order, which had required them to submit either a jointly
proposed deposition schedule or a list of the witnesses whom any party wished to depose,
together with their availability, so that, if the parties were unable to set a schedule, this Court
could set one for them. (Id., at 5.) At the close of its March 21 Order, this Court wrote the
following:
[T]his Court will again modify its prior Scheduling Orders
(the last of which had set a deadline of January 31, 2018 for the
close of all fact discovery (see Dkt. 126)) by extending the
deadline for fact discovery one last time. All fact discovery,
including depositions, shall be completed by September 27, 2019,
and this deadline will be considered final, such that it will not be
3

Although not relevant to the disputes currently before this Court, Plaintiffs also disputed
what had been agreed by counsel on May 14, 2018 with respect to the materials that Plaintiffs
were required to produce to Defendants, and, in particular, with respect to Plaintiffs’ obligation
to produce certain audio recordings in their possession. This Court resolved that aspect of the
parties’ dispute in its Orders dated February 13 (Dkt. 163), March 21 (Dkt. 177), and June 19
(Dkt. 216), 2019, requiring that the audio recordings be produced prior to the depositions of the
witnesses whose statements had been recorded.
5

extended by this Court absent a showing of extraordinary cause.
The parties are instructed that depositions should go forward
during this period, regardless of whether any party believes that
any document production is still outstanding. . . .
...
After good faith conference, and no later than April 4,
2019, the parties are directed to provide a stipulated deposition
schedule to the Court. If they again fail to do so, then they can be
assured that this Court will pick the deposition dates, and, although
this Court will attempt to avoid dates that are religious holidays,
the dates it selects . . . may not represent the most convenient dates
for counsel or any of the parties. Both parties are further cautioned
that this Court will no longer tolerate failures by any party to
comply, in any way, with Court-ordered schedules, including the
deadlines set forth herein. This Court will not be hesitant to
sanction parties or counsel, if deadlines are missed without good
cause shown. See Fed. R. Civ. P. 16(f)(1)(C); see also, e.g.,
Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir.
2009) (“[A]ll litigants, including pro ses, have an obligation to
comply with court orders.” (internal quotation marks and citation
omitted)).
(Id.) On April 4, the parties submitted a jointly proposed deposition schedule, which the Court
“So Ordered.” (Dkt. 181 (Mem. Endors.).)
B.

The Matters Pending Before This Court

Given the parties’ propensity for making numerous and lengthy filings regarding
discovery and other matters, this Court, as noted above, has reviewed the Docket carefully in
order to ensure that this Order addresses all disputes that the parties contend are still pending
before the Court. While this does not mean that this Court agrees that all of these disputes are
open ones, it has nonetheless sought herein to close the door on any matter, within the scope of
its reference, that any party has suggested needs judicial attention. These matters are addressed
in turn.

6

1.

Plaintiffs’ Motions To Compel Production of Documents

Although, as set out above, this Court has previously addressed the adequacy of
Defendants’ production of documents to Plaintiffs, Plaintiffs have continued to assert that such
production has been deficient. Liberally construing their submissions, this Court sees two
potential arguments that Plaintiffs could be making. First, it appears that Plaintiffs may be
arguing that this Court should not have accepted Defendants’ counsel’s proffer regarding the
substance of counsel’s May 14, 2018 discovery agreement with Richman, or, alternatively, that,
if that agreement was as narrow as Defendants’ counsel reported it to be, then the agreement
should not have been enforced by the Court, as it would have been unreasonable in light of
Plaintiffs’ legitimate need for broader discovery in this action. Second, Plaintiffs may be arguing
that, to the extent Defendants agreed to produce certain categories of documents, their
productions were incomplete as to those agreed categories, such that they should be compelled to
produce documents that were allegedly missing.
This Court will not revisit the first of these potential arguments. As noted above, the
Court requested and received submissions from the parties regarding the scope of the May 14,
2018 discovery compromises that had been agreed to by counsel, and satisfied itself that
Defendants’ production, in accordance with those compromises, had been adequate. Plaintiffs
have nonetheless maintained that any agreement between counsel reached on May 14 would
have applied only to a limited subset of the documents that Plaintiffs had requested, and that
counsel had neither addressed nor resolved other outstanding discovery demands. (See Dkt. 162,
at 4; Dkt. 242, at 6.) Plaintiffs have made these same arguments since the time of the September
6, 2018 conference itself, where the subject of counsel’s negotiated discovery compromises was
first raised with this Court. Indeed, during the September 6 conference, Plaintiffs expressed their

7

view that the May 14 agreement, whatever it was, would not have captured their “intent” with
respect to additional discovery to which they still believed they were entitled, and would not
have accounted for what Plaintiffs’ counsel “should have done” in the months following the
meet-and-confer – at one point referring to a “vast” quantity of relevant unproduced documents
or other discovery. Plaintiffs then continued, over time, to make these and other arguments to
challenge this Court’s enforcement of counsel’s apparent discovery agreement. Most recently,
Plaintiffs have sought to shift blame for any inadequate “agreement” from their own counsel to
Defendants’ counsel, arguing that, “[g]iven defense counsel behavior [sic], it is excessively
prejudicial to continue to credit his unsubstantiated claims [about the terms of the agreement,]
and any outcome of . . . [the] meet and confer should have been deemed null.” (Dkt. 242, at 6.)
Having reviewed and considered all of Plaintiffs’ oral and written arguments on these points,
from the date of the September 2018 conference forward, this Court finds no reason to deviate
from its previous ruling regarding the scope of counsel’s discovery agreement, and the fact that it
should be considered binding on Plaintiffs.
As to Plaintiffs’ second potential argument, this Court notes that, at the September 6,
2018 conference, Plaintiffs also complained that, at some point, Defendants had responded to
several document requests with general objections, but had still produced some documents
responsive to those requests. This Court explained that a party may sometimes state an objection
to a discovery demand, but then additionally state that “subject to and without waiver of” that
objection, it would nonetheless provide a substantive response, and further explained that
responding in that way to a document request would not necessarily signal that any documents
were being withheld. Plaintiffs, however, represented to the Court that they had evidence that
Defendants were, in fact, withholding responsive documents that they had stated they would

8

produce. Given this representation, this Court permitted Plaintiffs to submit, in writing, a
description of the specific instances in which Defendants had produced some documents
responsive to a request, but withheld others, together with an explanation of what Plaintiffs
believed had been withheld.
Despite this, Plaintiffs have never made a submission to this Court to support their
representation that certain documents have been withheld by Defendants from particular
categories of otherwise produced documents. Rather, Plaintiffs have made two submissions that
challenge, in broad fashion, whether Defendants’ written responses to document requests were
compliant with the Federal Rules of Civil Procedure. (See, e.g., Dkts. 156, 239 (both containing,
without greater specificity, requests for the Court to order Defendants to provide
“Rule[-]Compliant Responses,” and essentially arguing that Defendants’ stated objections to
discovery demands have been so inadequate that Plaintiffs cannot even challenge Defendants’
responses in substantive terms).) While Plaintiffs have described these two submissions as
“pending motions to compel discovery from Defendants” (Dkt. 244), neither was filed as a
motion, and neither actually contained any request to compel the production of either specific
documents or specific categories of documents that Defendants had agreed, but failed, to
produce.
For example, in one of Plaintiffs’ submissions, Plaintiffs stated that “some but not all
evictions were produced,” and that “isolated correspondence about holds was produced but not
as a responsive category itself.” (Dkt. 156, at 2.) This does not come close to demonstrating
(1) that a document request was served on Defendants that covered the documents in question;
(2) that Defendants agreed – either in their written response to the request or as part of their
negotiated agreement with Plaintiffs’ counsel – to produce a category of documents responsive

9

to the request; and (3) that, while some documents that Defendants had agreed to produce were
provided, others in the same category were withheld. To the same submission, Plaintiffs also
attached a massive Appendix (see id., App’x 1, at 1-8), which contained a supposed
“non-exhaustive” list of the documents that Plaintiffs had requested from Defendants and not
received. That list, however, does nothing to aid the Court in assessing whether Defendants
reneged on any discovery agreement.
Having reviewed Plaintiffs’ submissions with an eye toward determining whether
Defendants owe Plaintiffs production of any documents that they had agreed to produce, this
Court cannot conclude that Plaintiffs have demonstrated that this is the case. Accordingly, to the
extent any of Plaintiffs’ prior submissions may be construed as motions to compel further
document production from Defendants, those motions are denied.
2.

Motions To Compel Depositions

Is is unclear whether Defendants are still seeking to conduct any depositions, or if the
only application before this Court to compel further depositions (and for an extension of the
discovery period to accommodate this) is the one made by Plaintiffs. (See Dkt. 238.) In any
event, and regardless of who may be to blame at this point for the parties’ failure to adhere to the
Court-ordered deposition schedule that the parties jointly proposed, this Court will neither
compel any depositions nor reopen and extend the discovery period.
The deposition schedule to which the parties agreed, and which the Court ordered,
dictated that depositions would begin in May 2019, starting with Plaintiffs’ depositions, and end
in July 2019, when the last of the Defendants would be deposed. (Dkt. 181.) On May 5, 2019,
Plaintiffs wrote a letter to this Court, informing it that the parties had stipulated to modify that
schedule to push Plaintiffs’ own depositions later into the summer, so that Plaintiffs could

10

attempt to secure representation by pro bono counsel for purposes of their depositions.
(Dkt. 195.) By written Order dated May 13, 2019 (Dkt. 199 (Mem. Endors.)), the Court
approved the stipulated modification of the schedule, but emphasized that, while the parties were
free to “stipulate to modify deposition dates previously ordered by this Court, they [were]
cautioned that this Court [did] not intend to extend the [September 27, 2019] deadline for the
completion of all fact discovery, including depositions.” The Court also specifically ruled that,
“[i]f pro bono counsel [could not] be located by the stipulated deposition dates, then the
depositions should still go forward.” (Id.) Then, in June 2019, Plaintiffs wrote to the Court
twice, complaining about various issues that were further delaying the timetable, including
purportedly outstanding document discovery and the fact that the pro bono attorney who had
originally contemplated representing Plaintiffs at their depositions had then decided not to do so.
(See Dkts. 214, 215.) Most recently, on September 3, 2019, Plaintiffs asked the Court to compel
Defendants to appear for depositions, claiming that Defendants’ counsel had “[s]quandered
[t]ime” and been “[e]vasive” over the preceding months, attaching emails between Wood and
Defendants’ counsel, and requesting an extension of the discovery deadline from September 27,
2019 to February 10, 2020. (Dkt. 238.)
Plaintiffs accuse Defendants’ counsel of engaging in “gamesmanship” and conceiving a
“setup to burn up some of Plaintiffs’ time” to depose Defendants. (Id., at 2-3.) This Court,
however, sees no evidence of any bad-faith tactics on the part of Defendants and finds that, at a
minimum, Plaintiffs share in the blame for “burning up” time to conduct depositions. It appears
from the emails attached to Plaintiffs’ letter, as well as from Defendants’ response to that letter
(Dkt. 241), that Defendants’ counsel had to cancel one deposition (of Wood), one time, on short

11

notice, in August. This single cancellation, though, does not explain why depositions could not
have been completed within the extended discovery period.
What does appear to explain at least a sizable portion of the delay are Plaintiffs’
objections, in June, to having Wood’s deposition proceed without counsel or the production of
additional discovery (Dkts. 214, 215), even though this Court had expressly cautioned in its
March 21 Order that depositions should go forward, “regardless of whether any party believes
that any document production is still outstanding” (Dkt. 177, at 8), and had further cautioned, in
May, that Plaintiffs’ depositions should proceed even if pro bono representation could not be
secured (Dkt. 199). Defendants’ counsel alluded to Wood’s objections as the reason for the
delay in an August 13, 2019 email, and Wood did not challenge it in his response, nor do
Plaintiffs offer a contrary explanation in their most recent letter to this Court. (See Dkt. 238.)
Furthermore, in an August 19, 2019 email, with over a month remaining before the close of
discovery, Wood was already asking Defendants to consent to an extension of the discovery
deadline until 2020, “[d]ue to the many holidays in October as well as Thanksgiving and
conflicts in November and December.” (Id.) This Court respects Plaintiffs’ observance of
religious holidays, but Plaintiffs’ representation that holidays and other conflicts would have
prevented them from conducting any depositions at all for over four months strains credulity and,
further, tends to suggest that – despite the Court’s explicit and repeated warnings that the final
discovery deadline that it set in March would not be extended further – Plaintiffs were not
serious about meeting the Court’s deadline.
In sum, this Court warned the parties multiple times that they had to proceed with
depositions, even if Plaintiffs lacked the assistance of counsel or believed they were first entitled
to other discovery, and that “this Court [would] no longer tolerate failures by any party to

12

comply, in any way, with Court-ordered schedules.” (Dkt. 177, at 8.) Plaintiffs certainly have
not shown that Defendants obstructed the discovery process to an extent that would demonstrate
“extraordinary cause” for a further modification of the discovery schedule. Therefore, this Court
will not compel anyone to appear for deposition, nor will it, in any other way or for any other
purpose, extend the final September 27, 2019 discovery cut-off. If the parties wish to conduct
further depositions past the close of the discovery period, then they are free to reach agreement
among themselves to do so, but this Court will not be involved in that process.
3.

Plaintiffs’ Request for Leave To Amend Their Complaint

On August 31, 2019, nearly five years after this case was commenced, close to two years
after the deadline for motions to amend, and within a month of the final extended cut-off for all
discovery in this action, Plaintiffs filed a letter requesting leave to amend their Complaint to
include “[i]mplied, [a]mended, [and] [s]upplemental” claims. (Dkt. 237.) Among the claims
Plaintiffs now seek to add are implied race-based discrimination and New York property-law
claims against the existing Defendants, as well as new discrimination claims against an entity,
Penn South Cooperative Federal Credit Union (“Penn South”), that was dismissed from this
action by Judge Torres on March 31, 2016. (See Dkt. 70.)
This Court explicitly warned Plaintiffs at the September 6, 2018 conference that, as the
deadline for amendments had expired on November 10, 2017, any application to amend would
need to include a showing, under Rule 16 of the Federal Rules of Civil Procedure, of “good
cause” for Plaintiffs’ failure to have met that deadline. In their letter motion, however, Plaintiffs
have made no effort to satisfy the Rule 16 standard and, instead, cite only to the language of
Rule 15, stating that “[a]mendment should be freely granted.” (Dkt. 237, at 2-3.)

13

Rule 16(b) requires the district court to enter a scheduling order that sets a deadline for
motions to amend the pleadings, see Fed. R. Civ. P. 16(b)(1), (3)(A), and then dictates that the
schedule “may be modified only for good cause,” Fed. R. Civ. P. 16(b)(4). In light of this Rule,
the Second Circuit has held that, “despite the lenient standard of Rule 15(a), a district court does
not abuse its discretion in denying leave to amend the pleadings after the deadline set in the
scheduling order where the moving party has failed to establish good cause.” Parker v.
Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). Good cause in this context
“depends on the diligence of the moving party,” id., and, to satisfy the standard, the movant must
demonstrate that it has been diligent in its efforts to meet the Court’s deadlines, see
Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). In other words, the party must
show that, despite its having exercised diligence, the applicable deadline could not have been
reasonably met. Rent-A-Center Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104
(S.D.N.Y. 2003); see also Parker, 204 F.3d at 340. Examples of a party’s failure to act with
sufficient diligence include basing a proposed amendment on information that the party knew, or
should have known, in advance of the deadline. Parker, 204 F.3d at 340. In the exercise of its
discretion, a court may also consider other relevant factors, including whether allowing the
amendment would prejudice the opposing party. See Kassner v. 2nd Ave. Delicatessen Inc.,
496 F.3d 229, 244 (2d Cir. 2007).
Here, Plaintiffs have not provided an explanation as to why they could not have added
their purported “implied claims” to the Complaint earlier in this litigation, and thus they cannot
be found to have acted diligently with respect to those claims. As to their proposed claims
against Penn South, Plaintiffs contend that “new facts have come to light which bolster claims
and support new claims.” (Dkt. 237, at 3.) These supposed new facts are that Carmen Santiago,

14

a named defendant in this action, also goes by the name Carmen Angelico, and that Carmen
Angelico “was a staff member and/or board member of” Penn South. (Id.) Plaintiffs do not
specify when they discovered these facts, except that it was “[d]uring discovery” (a period that
spanned two and a half years), or how they discovered them, such that the Court cannot conclude
that Plaintiffs exercised diligence in that regard. As Plaintiffs have not satisfied the good cause
standard of Rule 16, this Court need not consider whether their proposed amendment as to Penn
South would be permissible under Rule 15. Parker, 204 F.3d at 340.
Plaintiffs additionally seek guidance on whether “supplemental claims” can be brought
against Defendants in this action based on events that occurred after Plaintiffs filed their
Complaint. (Dkt. 237, at 5.) Plaintiffs have not specified what claims they seek to bring or when
the events giving rise to them occurred, 4 and as such, this Court cannot determine that there is
good cause to add them now. 5 Finally, although Plaintiffs state in their application that an
amendment would cause Defendants “no prejudice” because, at the time the application was

4

Plaintiffs did not attach a proposed amended pleading to their letter seeking leave to
amend, which, by itself, can be grounds for denying leave. See Loreley Fin. (Jersey) No. 3
Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015). Nor did Plaintiffs even
provide, in their letter, any detail regarding the nature of their newly proposed claims.
5

Plaintiffs also mention in their letter that Defendants “have argued before the New York
State Supreme Court that any and all NY GBL §§ 349-50 claims against it are properly placed
here” and seek guidance from the Court on “a means to clarify the scope of those claims in case
the Complaint did not adequately plead” them. (Id.) This Court cannot discern when
Defendants made the argument being referenced by Plaintiffs, precisely what Defendants agued,
or what Plaintiffs are now seeking on this point. To the extent Plaintiffs wish to amend the
claims that they have already pleaded in this action under Sections 349 and 350 of the New York
General Business Law (see Dkt. 1 ¶¶ 239-57), so as to remedy potential defects or to expand
their allegations, they have not explained this. In any event, this Court notes that the fact that
Defendants may have challenged claims raised by Plaintiffs in another forum does not constitute
good cause for a belated amendment to the Complaint filed in this Court.
15

made, the parties were still “in discovery” (id., at 3), this statement obscures the fact that
Plaintiffs’ request was filed at the very end of an extremely lengthy discovery period.
In sum, although Plaintiffs were warned in September of 2018 – fully a year before this
Court’s final cut-off date for discovery – that they would need to demonstrate good cause if they
wished to make a belated motion for leave to amend, their letter seeking leave to amend fails to
do so, and leave is therefore denied.
4.

Defendants’ Motion To Quash Subpoenas Issued to Nonparties

On May 15, 2019, Defendants filed a letter motion to quash four subpoenas that had
apparently been served by Plaintiffs on various nonparties on April 10 and May 9, 2019.
(Dkt. 201.) Arguing that “each of these subpoenas [sought] information that [was] excessive in
scope, overly burdensome[,] and beyond the boundaries of what is relevant in prosecuting this
action” (id., at 1), Defendants asked that the Court issue an order “withdrawing or severely
restricting[] the subpoenas, preventing Plaintiffs from utilizing any of the documents that have
been produced to date, and preventing Plaintiffs from obtaining further subpoenas unless on
consent or by application to the Court” (id., at 2). Plaintiffs responded on May 29, 2019, with a
lengthy submission, in which they argued, inter alia, that Defendants lacked standing to
challenge the subpoenas. (See Dkt. 213, at 1-2.) On this point, Plaintiffs are correct that
“[a] party ordinarily lacks standing to quash a subpoena directed at a nonparty unless the party is
seeking to protect a personal right or privilege.” (Id., at 1 (quoting Nova Prods., Inc v. Kisma
Video, Inc., 220 F.R.D. 238, 241 (S.D.N.Y. 2004))). As there is nothing in Defendants’ May 15
letter that could be construed as claiming any “personal right or privilege” impacted by the
information sought in the subpoenas, Defendants’ motion to quash is denied for lack of standing.

16

That leaves the question, however, of whether, if any subpoenaed person or entity did not
comply with a subpoena duly served by Plaintiffs, Plaintiffs may still move, at this juncture, to
enforce that subpoena. With respect to the four subpoenas referenced by Defendants in their
May 15 letter, Plaintiffs suggested in their response that, as of May 29, two remained at issue –
one that had been directed to Penn South Cooperative Federal Credit Union and the other to Penn
South Social Services. (See Dkt. 213, at 3-4.) Plaintiffs, however, never asked this Court to
compel compliance, either in their opposition to Defendants’ motion to quash, or in any separate
motion to compel. Nor have Plaintiffs ever asked this Court to take steps to enforce any other
subpoenas that they may have served on other persons or entities, and that may remain
outstanding. In this regard, this Court notes that the Docket reflects that, in addition to the four
subpoenas addressed by the parties in their May 2019 letters, the Clerk of Court issued another
seven subpoenas on Plaintiffs’ behalf in the same April-May time frame, as well as another five
in September 2019. (See generally Dkt.)
The latter cluster of subpoenas, which were issued shortly before discovery closed on
September 27, 2019, specified return dates in October 2019 (see Dkt. 245, Ex. 1), and are
therefore untimely. See Kelly v. Wright Med. Tech,, Inc., No. 00cv8808 (LAK), 2003 WL
40473, at *1 (S.D.N.Y. Jan. 3, 2003) (finding subpoenas untimely when they had been served on
the final day of the discovery period, “thus ensuring that [responses] would be received, if at all,
only after the conclusion of discovery”); see also Pasternak v. Dow Kim, No. 10cv5045 (LTS)
(JLC), 2013 WL 1729564, at *1 (S.D.N.Y. Apr. 22, 2013) (“Rule 45 subpoenas have been held
generally to constitute discovery, and, therefore, are subject to the same time constraints that
apply to all of the other methods of formal discovery.” (internal quotation marks and citation
omitted)); Dodson v. CBS Broadcasting, Inc., No. 02cv9270 (KMW) (AJ), 2005 WL 3177723,

17

at *1 (S.D.N.Y. Nov. 29, 2005) (noting that subpoenas “may not be used . . . as means to engage
in discovery after the discovery deadline has passed.” (internal quotation marks and citation
omitted)).
Moreover, as to any subpoenas that may still be at issue, Plaintiffs have failed to exercise
diligence in seeking enforcement. Indeed, Plaintiffs’ lack of diligence has been plainly
evidenced by their own statements to this Court in a letter dated September 25, 2019, a mere two
days before the final discovery cut-off. In that letter (Dkt. 244), Plaintiffs indicated that
“outstanding discovery known at this time” included “responses to served subpoenas, including,
but not limited to, some which will require a motion to compel due to the subpoenaed parties
being non-responsive” (id., at 1). Based on this representation, Plaintiffs cannot be heard to
complain that they were unaware that they would need to move to compel compliance, if they
wished to enforce any of the subpoenas. It is within the Court’s discretion to decline to enforce a
subpoena after the close of fact discovery when it is clear that the party issuing the subpoena
could have sought enforcement before the discovery deadline, see, e.g., McDermott v.
Liberty Maritime Corp., No. 08–CV–1503 (KAM) (ALC), 2011 WL 2650200, at *3 (E.D.N.Y.
July 6, 2011) (declining to enforce subpoena following the close of fact discovery, even though
subpoena was served before deadline, where party “could have sought enforcement . . . during
the discovery period”), and, in the exercise of its discretion here, this Court will not entertain any
belated discovery-related motions at this time.
Conclusion
For the reasons stated above, discovery in this case is closed, and will not be reopened by
this Court. Any pending motion by Plaintiffs to compel further document production from
Defendants is denied. Any request by any party to compel depositions is denied. Plaintiffs’

18

request for leave to amend the Complaint is denied. Defendants' motion to quash certain
subpoenas (Dkt. 201) is denied. This Court will not entertain any further discovery motions,
including any motion to enforce any outstanding subpoenas.
In light of the rulings herein, the Clerk of Court is directed to close the motion filed in
this action at Dkt. 201.
If the parties anticipate filing any summary judgment motions, they are directed to confer
and jointly to propose a briefing schedule no later than November 26, 2019. Ifno party plans to
file a motion for summary judgment, then the parties should consult Judge Torres' Individual
Practices in Pro Se Cases with respect to trial submissions.
Dated: New York, New York
November 19, 2019
SO ORDERED

DEBRA FREEMAN
United States Magistrate Judge
Copies to:
Mr. Tzvee Wood
271 Magnolia Blvd.
Long Beach, NY 11561
Ms. Andrea Malester
271 Magnolia Blvd.
Long Beach, NY 11561
Defense counsel (via ECF)

19