Forte v. McNellis et al
Filing
180
ORDER denying 178 Letter Motion for Discovery. For the foregoing reasons, the White Plains Defendants' motion to reopen discovery is DENIED. The parties are directed to proceed to summary judgment briefing in accordance with the followi ng schedule: 1. Motions for summary judgement shall be filed no later than April 27, 2021. 2. Opposition papers, if any, shall be filed no later than June 11, 2021. 3. Reply papers, if any, shall be filed no later than July 12, 2021. SO ORDERED. (Signed by Judge Vernon S. Broderick on 3/8/2021) (va)
Case 1:16-cv-00560-VSB Document 180 Filed 03/08/21 Page 1 of 9
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DANIEL FORTE,
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Plaintiff,
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- against :
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CITY OF NEW YORK, et al.,
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Defendants. :
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3/8/2021
16-CV-560 (VSB)
ORDER
VERNON S. BRODERICK, United States District Judge:
Plaintiff Daniel Forte (“Plaintiff” or “Forte”) brings this action against Defendants City
of New York, Detective Brian McNellis, Detective Edward Garrity, White Plains Police Officers
Kenneth Tallevi and Cunningham (collectively, “Defendants”), alleging violations of 42 U.S.C.
§ 1983 for unlawful search/seizure, false arrest, false imprisonment, conspiracy, fabrication of
evidence, denial of his right to fair trial, and under a theory of municipal liability. The parties’
stipulated deadline for the completion of discovery expired on January 15, 2021. (See Doc. 174.)
Before me is the request of Defendants Kenneth Tallevi and Jahmar Cunningham (the “White
Plains Defendants”) that I amend the Case Management Schedule to allow for expert discovery
in this matter. Because the White Plains Defendants have not established good cause for
reopening discovery for that purpose, the White Plains Defendants’ request is hereby DENIED.
Background and Procedural History
On January 19, 2021, the White Plains Defendants informed all parties, for the first time,
that they intend to utilize expert witness testimony, and identified Dr. Elizabeth Spratt as their
anticipated expert witness. (See Doc. 179, Ex. C.) During a January 21, 2021 post-discovery
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conference before me, the White Plains Defendants accordingly requested that I amend the Case
Management Schedule to allow for expert discovery for that purpose. The White Plains
Defendants seek, as a prophylactic measure, Dr. Spratt’s testimony on the propriety of the
procedures surrounding the toxicology records from the Westchester County Department of
Laboratories and Research in connection with the controlled substance allegedly found on
Plaintiff during his arrest. (Doc. 176, at 1.) Specifically, they plan to have Dr. Spratt address the
discrepancy between the reported weight of the controlled substances allegedly found on
Plaintiff at the time of his arrest by the Police Department as compared to after processing by the
lab, which led to him being charged with a higher degree of criminal possession of a controlled
substance. Dr. Spratt’s report describes how the variance in the measurements can be explained
by the difference between procedures followed by the Police Department and the lab; the White
Plains Defendants argue that admission of this report is needed, lest the trier of fact draws an
inference of impropriety by the arresting Officers. (Id.)
The White Plains Defendants’ request comes after nearly a year and a half of discovery
since the parties filed a Case Management Schedule stipulating that they would not be utilizing
expert witness testimony on September 16, 2019. (Doc. 140.) Since that original stipulation, the
parties made multiple requests to extend discovery in the matter. (Docs. 154, 162, 164, 169, 171,
173.) During this time, the White Plains Defendants never once requested for leave to amend the
Case Management Schedule to account for expert discovery, let alone raised their intention to the
other parties to call an expert witness. Discovery closed on January 15, 2021. (See Doc. 174.)
The White Plains Defendants’ instant request post-dated that deadline by six days.
On February 12, 2021, Plaintiff filed a letter in opposition to the White Plains
Defendants’ request for expert discovery. (Doc. 176.) Plaintiff opposes the White Plains
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Defendants’ request and asks that I proceed to enter a briefing schedule for summary judgment.
(Id. at 3.) Pursuant to my February 16, 2021 Order directing additional briefing, (Doc. 177), on
February 23, 2021, Defendants submitted a letter response in support of the request, (Doc. 178),
and on March 5, 2021, Plaintiff submitted his reply, (Doc. 179).
Discussion
Federal Rule of Civil Procedure 16(b) allows for a court-ordered discovery schedule to be
modified for good cause and with the judge’s consent. Fed. R. Civ. P. 16(b)(4). “The decision
to re-open discovery is within a district court’s discretion.” Krawec v. Kiewit Constructors Inc.,
No. 11 CIV. 0123 LAP, 2013 WL 1104414, at *8 (S.D.N.Y. Mar. 1, 2013). “As a general rule,
discovery should only be re-opened for good cause, depending on the diligence of the moving
party.” Id.
“[T]he primary consideration in determining good cause is whether the moving party can
demonstrate diligence.” Rubik’s Brand Ltd. v. Flambeau, Inc., 329 F.R.D. 55, 58 (S.D.N.Y.
2019). The movant must show that, “despite its having exercised diligence, the applicable
deadline set in the court’s scheduling order could not reasonably have been met.” Tatintsian v.
Vorotyntsev, No. 1:16-CV-7203-GHW, 2021 WL 780139, at *5 (S.D.N.Y. Jan. 27, 2021)
(quoting Liverpool v. City of New York, No. 18-cv-1354 (PAE)(BCM), 2020 WL 3057466, at *2
(S.D.N.Y. June 9, 2020)); see, e.g., Softel, Inc. v. Dragon Med. & Sci. Commc’ns, Inc., 118 F.3d
955, 961 (2d Cir. 1997) (affirming denial of request to modify schedule to accommodate filing of
an expert report where movant had failed to supply an adequate explanation for failing to comply
with the discovery deadline). A court “may properly deny further discovery if the nonmoving
party has had a fully adequate opportunity for discovery.” Trebor Sportswear Co. v. The Ltd.
Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989); see, e.g., Burlington Coat Factory Warehouse
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Corp. v. Esprit De Corp., 769 F.2d 919, 927 (2d Cir. 1985) (denying additional discovery where
movant “had ample time in which to pursue the discovery that it now claims is essential”).
In addition, in deciding whether good cause exists to reopen discovery, courts may
consider:
the moving party’s explanation for failing to comply with the scheduling order and
diligence in seeking a modification to the schedule, the importance and relevance
of the expert testimony to the case, whether the party seeking the additional
discovery has had an adequate opportunity for discovery, prejudice to the party
opposing the request, and imminence of trial.
Rubik’s Brand, 329 F.R.D. at 58. Application of these factors is not mandatory and some courts
choose not to consider them. Saray Dokum v. Madeni Aksam Sanayi Turizm A.S., 335 F.R.D. 50,
52 (S.D.N.Y. 2020) (“we will consider them to the extent we deem them pertinent”).
The White Plains Defendants assert that good cause exists for reopening discovery to
permit expert discovery because they only found out after the completion of depositions in late
October 2020 that Plaintiff intended to pursue the discrepancy in the measurement of the
controlled substance as an issue. (Doc. 178, at 2.) The White Plains Defendants claim that they
were put on notice of the relevance of this issue to Plaintiff’s claims after being deposed on
October 21 and 22, 2020 and each questioned about the fact that they charged Plaintiff with
Criminal Possession of a Controlled Substance in the Fifth Degree, despite a laboratory report
that the weight of the controlled substance allegedly found on him was less than 500 milligrams.
(Doc. 179, at 2–3.) As soon as this became apparent, the White Plains Defendants identified Dr.
Spratt as a witness, provided her with the necessary records for review, and allowed her time to
provide a report on this issue, which she completed on January 11, 2021. (Doc. 178, at 2.) They
produced the report to Plaintiff’s counsel eight days later. (Id.)
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Plaintiff, in opposition, argues that the White Plains Defendants were aware that the
discrepancy in the measurements of the substance would be an issue in this matter long before
the discovery deadline on January 15, 2021. Plaintiff submits that the record is replete with
references to this discrepancy, as follows:
1. Plaintiff’s Second Amended Complaint, filed August 9, 2017, alleged that Defendant
Tallevi had endorsed an Accusatory Instrument wherein Defendant McNellis of New
York City Police Department had provided false information, and that the WP
Defendants actions constituted malicious prosecution because they improperly
charged him with Criminal Possession of a Controlled Substance in the Fifth Degree,
(Doc. 86, ¶¶ 35, 42–43);
2. Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motions to Dismiss,
filed December 5, 2017, argued that: “Defendant Tallevi prepared two accusatory
instruments which state [that he] personally inspected the substance and based upon
his [t]raining determined it to be crack cocaine. Tallevi also swore that the substance
was more than 500 milligrams, Exhibit E-2[,] which according to lab report Exhibit
E-3[,] was not true,” (Doc. 109, at 18);
3. My September 28, 2018 Opinion & Order noted that the heightened charge of
criminal possession of a controlled substance in the fifth degree was “based upon the
erroneous finding that more than 500 milligrams of cocaine was found on Plaintiff’s
person” and that “the appropriate charge should have been criminal possession of a
controlled substance in the seventh degree, because Plaintiff had less than 500
milligrams of cocaine,” but declined to address Plaintiff’s malicious prosecution
claim as to the charge for criminal possession of a controlled substance in the fifth
degree at that stage, (Doc. 114, at 25–26 n.12);
4. Plaintiff’s Requests for Production of Documents, served May 8, 2019, sought “any
and all documents concerning . . . the alleged probable cause that the [WP
Defendants] had to charge Plaintiff with criminal possession of a controlled substance
in the Fifth Degree.” (Doc. 179, Ex. A, ¶ 12.) In response, White Plains Defendants
produced the accusatory instrument regarding Plaintiff’s possession of the controlled
substance, the White Plains Police Department’s property intake form regarding
receipt of the drugs, and the supporting deposition of a forensic scientist, which
clearly showed the discrepancy in the weight of the controlled substance. (Id., Ex.
B.)
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I first note that no trial date has been set and the additional proposed discovery will
therefore have no impact on the timing of the final resolution of this case. Furthermore, the
discovery sought is potentially relevant to the issue of whether the White Plains Defendants
maliciously prosecuted Plaintiff by improperly overestimating the weight of the controlled
substance found on Plaintiff so as to charge him with a higher crime than was warranted.1
However, the “primary consideration” in a good cause inquiry is whether the movants exercised
reasonable diligence, Rubik’s Brand, 329 F.R.D. at 58, and here, application of the other factors
shows that they did not.
The White Plains Defendants were aware or should have been aware long before the
close of discovery of the possibility that Plaintiff would rely upon the alleged inaccuracies in the
weighing of the controlled substance found on his person in proving his wrongful prosecution
claim. In view of the multiple references in the record to the alleged impropriety of the charge
against Plaintiff for Criminal Possession of a Controlled Substance in the Fifth Degree, dating
back to Plaintiff’s Second Amendment Complaint, the White Plains Defendants’ proffered
1
Plaintiff argues that the expert report in question is neither important nor relevant to this case, as Dr. Spratt’s
testimony centers around the argument that the White Plains Police Department engages in a routine practice of
overestimating the weight of controlled substances and that the final laboratory reports often show the final weight
“to be lower than the aggregate weight,” (Doc. 179, Ex. C), whereas Plaintiff’s malicious prosecution claim is
grounded on the notion that the White Plains Defendants lacked probable cause to prosecute him on the charge of
Criminal Possession of a Controlled Substance in the Fifth Degree due to their failure to conduct a proper
investigation into the weight of the controlled substance found on Plaintiff to begin with, (id. at 3). For instance,
Plaintiff points to the White Plains Defendants’ inability to recall, during their depositions, whether they had
weighed the substance found on Plaintiff at all. (Id.; Doc. 176, Ex. C, at 143:14-21; Ex. D, at 159:25, 160:2-12.) In
Plaintiff’s view, these omissions alone are damning, and proving ill intent by the White Plains Defendants is not
necessary for proving his malicious prosecution claims. I decline to prejudge the importance or lack thereof of Dr.
Spratt’s testimony at this juncture. At the very least, the White Plains Defendants have articulated how the report
could “potentially be relevant” to explaining to a trier of fact whether or not the discrepancies in the reported weight
of the controlled substance found on Plaintiff at the time of his arrest and after lab processing were due to improper
procedures undertaken by the White Plains Defendants. See Rubik’s Brand, 329 F.R.D. at 60 (allowing modification
of discovery to admit expert report where movant had “sufficiently articulated possible relevance” of that report). I
also note that neither party addresses whether or not the laboratory technician who weighed and conducted the
testing of the substance at issue will be a fact witness, and this ruling does not address whether or not the technician
would be an appropriate fact witness. Nor does my holding today govern how the parties are entitled to present their
cases at trial. However, I will be mindful of arguments or suggestions that might be misleading to the jury.
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explanation for their delay appears wanting. As Defendants’ responses to Plaintiff’s Requests
for Production make clear, the White Plains Defendants were themselves in possession of
evidence regarding the discrepancy in the weight of the controlled substance found on Plaintiff.
Armed with this information, the White Plains Defendants had ample opportunity—and it was
their responsibility—during the extended discovery window of over a year to seek leave to
obtain expert testimony to defend against Plaintiff’s claims before the parties’ stipulated deadline
in the Case Management Plan. This alone is fatal to the White Plains Defendants’ request. See
Burlington Coat Factory, 769 F.2d at 927.
Furthermore, even assuming that the White Plains Defendants only found out that the
discrepancy could be an issue at trial in late October 2020, their three-month delay before first
raising their intention to utilize expert witness testimony or disclosing the identity of their
witness evinces their lack of diligence in seeking a modification to the existing discovery
schedule. The White Plains Defendants could have raised their desire to modify the discovery
schedule with Plaintiff or filed a request to modify the discovery schedule as soon as they had
made this purported discovery; instead, they opted to scout for and retain an expert witness to
produce a report without Plaintiff’s knowledge, and only ask for license to do so after the fact.
This smacks of gamesmanship. The White Plains Defendants’ decision to sit idle on seeking
leave to pursue discovery leads that might be relevant to their defenses without any plausible
explanation for their delay weighs against granting their request now that discovery has closed in
this case. See, e.g., Softel, Inc. v. Dragon Med. & Sci. Commc’ns, Inc., No. 87 CIV. 0167 (JMC),
1990 WL 164859, at *5 (S.D.N.Y. Oct. 24, 1990), order aff’d and remanded, 118 F.3d 955 (2d
Cir. 1997) (denying modification of scheduling order to accommodate new expert witness where
movant did not “unexpectedly discover[] the existence of an important witness” but rather “may
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have been considering obtaining a new expert for several months” before the post-discovery
conference).
Finally, reopening discovery and allowing the White Plains Defendants to utilize their
expert report despite the parties’ stipulation in 2019 that they would not be pursuing expert
discovery will prejudice Plaintiff by imposing on him additional expenses and delays in
resolution of this litigation. Although trial is not imminent, it has been more than four years
since Plaintiff filed his initial complaint, (see Doc. 1), and discovery in this case has stretched
out for nearly a year and a half. To admit the White Plains Defendants’ expert report at this
point, when Plaintiff was not given advance notice that such a report was in the works, would
force Plaintiff to incur additional costs to adequately prepare to rebut the report, or otherwise risk
impairment of his claims. This factor cuts even more strongly against the White Plains
Defendants when considering that Forte is an indigent pro se Plaintiff—represented by counsel
only for the limited purpose of for the purposes of conducting document discovery and
depositions, (see Doc. 140)—and will likely have substantial difficulty finding and paying to
retain an expert to rebut Dr. Spratt’s expert report or defending against the report without his
own, corresponding, expert testimony.
Together, these factors weigh against modifying the scheduling order to allow expert
discovery and admit the White Plains Defendants’ proposed expert report.
Conclusion
For the foregoing reasons, the White Plains Defendants’ motion to reopen discovery is
DENIED. The parties are directed to proceed to summary judgment briefing in accordance with
the following schedule:
1. Motions for summary judgement shall be filed no later than April 27, 2021.
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2. Opposition papers, if any, shall be filed no later than June 11, 2021.
3. Reply papers, if any, shall be filed no later than July 12, 2021.
SO ORDERED.
Dated: March 8, 2021
New York, New York
______________________
Vernon S. Broderick
United States District Judge
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