Keywell L.L.C. v. Pavilion Building Installation Systems LTD. et al

Filing 206

DECISION AND ORDER denying in part and dismissing in part 198 Motion for Discovery. Signed by Hon. Leslie G. Foschio on 7/12/2016. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
KELLY BEAUDIN STAPLETON, solely in her
capacity as trustee of the SGK Ventures, LLC
Liquidating Trust,
Plaintiff,

DECISION
and
ORDER

v.
09-CV-934S(F)
PAVILION BUILDING INSTALLATION SYSTEMS, LTD.,
ZEHN BURHAN UZMAN, LI ZHI CAO,
BARRETT CRANE DESIGN & ENGINEERING,
DOUGLAS BARRETT,
Defendants.
________________________________________
APPEARANCES:

SAUL EWING LLP
Attorneys for Plaintiff
CHARLES KELLY, of Counsel
One PPG Place, Suite 3010
Pittsburgh, Pennsylvania 15222
GOLDBERG SEGALLA LLP
Attorneys for Plaintiff
SHARON ANGELINO, of Counsel
665 Main Street, Suite 400
Buffalo, New York 14203
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendant Uzman
BENJAMIN F. NEIDL, of Counsel
677 Broadway, 9th Floor
Albany, New York 12207
SUGARMAN LAW FIRM LLP
Attorneys for Defendants Barrett Crane and Douglas Barrett
BRIAN F. SUTTER, of Counsel
1600 Rand Building
14 Lafayette Square
Buffalo, New York 14203

1

Before the court is Plaintiff’s Motion For Expert Discovery filed April 8, 2016 (Dkt.
198) (“Plaintiff’s motion”). Defendants filed their opposition on April 27, 2016 (Dkt. 200,
Defendants Barrett Crane Design & Engineering and Douglas Barrett; Dkt. 201,
Defendant Zehn Burhan Uzman). Plaintiff’s reply was filed May 4, 2016 (Dkt. 203).
Oral argument was conducted on May 18, 2016 (Dkt. 205).
The case involves claims for breach of contract and professional negligence in
connection with the design and construction of a fabric covered steel structure which
failed shortly after delivery. As relevant to Plaintiff’s motion, in its Decision and Order
filed December 18, 2015 (Dkt. 185), the court denied Plaintiff’s motion (Dkt. 178) to
modify the Scheduling Order (Dkt. 175) filed May 12, 2015 which, inter alia, required
expert disclosures pursuant to Fed.R.Civ.P. 26(a)(2)(B) be served by June 12, 2015
(Plaintiff) and July 17, 2015 (Defendants) with dispositive motions to be filed by
September 18, 2015 (Dkt. 175 ¶¶ 1, 2). Thereafter, neither side attempted to depose
the other side’s experts; however, in accordance with the Scheduling Order, Defendants
filed their respective summary judgment motions on September 18, 2015. Plaintiff
responded by filing Plaintiff’s motion to modify the Scheduling Order to stay summary
judgment and allow for Plaintiff’s depositions of Defendants’ experts. Finding Plaintiff
failed to demonstrate good cause under Fed.R.Civ.P. 16(b)(4) or excusable neglect
under Fed.R.Civ.P. 6(b)(1)(B), that Plaintiff failed to demonstrate it had not had a fair
opportunity to conduct expert depositions prior to the filing of Defendants’ summary
judgment motions, and that permitting Plaintiff to depose Defendants’ experts after
Defendants’ summary judgments motions were filed would create unfair prejudice to
Defendants, Plaintiff’s motion was denied in the D&O. Plaintiff’s appeal was denied by

2

Judge Skretny on February 5, 2016 (Dkt. 191). Although Plaintiff’s motion is somewhat
ambiguous regarding its actual request ̶ whether a motion to disqualify and preclude
Defendants’ experts under Fed.R.Evid. 702, or to permit a deposition of Defendants’
expert before the District Judge’s ruling on Defendants’ summary judgment ̶ Plaintiff’s
reply clarifies that Plaintiff’s motion seeks “(1) . . . expert discovery [i.e., a deposition] to
support a full motion to exclude the defense expert; or, in the alternative, (2) denial of
Defendants’ motions for summary judgment , and scheduling of this matter for trial with
sufficient time to prevent expert discovery and disqualification motions prior to trial.”
Dkt. 203 at 3-4. As the Defendants’ summary judgment motions are pending before the
District Judge and the undersigned’s referral authority is limited to non-dispositive
matters, Dkt. 169, the court considers only Plaintiff’s first request.
Upon a careful review of Plaintiff’s arguments with respect to Plaintiff’s request
for an immediate deposition of Defendants’ experts, the court finds itself constrained to
agree with Defendants that stripped to its essence, this branch of Plaintiff’s motion boils
down to a repetition of Plaintiff’s argument for such depositions prior to the Scheduling
Order cut-off for summary judgment in September 2015, and as such is an out-of-time
request for reconsideration of the D&O in violation of Local R.Civ.P. 7(d)(3)
(reconsideration motion to be filed within 28 days). Simply put, Plaintiff missed the
opportunity for such discovery as provided in the Scheduling Order (which was
formulated with the input of the parties) and could not meet the requirements for
Plaintiff’s belated attempt to enlarge such period after Defendants’ summary judgment
motions were filed. The court again declines to throw Plaintiff a rescue line at this time.

3

As to Plaintiff’s alternative request to deny Defendants’ summary judgment
motions and schedule trial so that Plaintiff may conduct an expert deposition and file a
motion to disqualify or preclude Defendants’ expert’s testimony, absent a consent to
proceed before the undersigned pursuant to 28 U.S.C. § 636(c), such a request must be
directed to the District Judge.1

CONCLUSION
Based on the foregoing, Plaintiff’s motion, Dkt. 198, is DENIED in part, and
DISMISSED in part without prejudice to renewing before Senior District Judge Skretny
Plaintiff alternative request that Defendants’ summary judgment motions be denied.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: July 12, 2016
Buffalo, New York

1

Although Defendant Uzman stated Plaintiff’s motion violated 28 U.S.C. § 1927, neither Defendant has
requested sanctions pursuant to that statute.
4