U.S. Tobacco Cooperative Inc. et al v. Big South Wholesale of Virginia, LLC d/b/a Big Sky International et al

Filing 435

ORDER denying 424 PROPOSED Sealed Motion. Signed by Magistrate Judge Robert B. Jones, Jr. on 5/31/2016. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DIVISION OF NORTH CAROLINA
WESTERN DIVISION
No: 5:13-CV-00527-F
U.S. TOBACCO COOPERATIVE INC., U.S.
FLUE-CURED TOBACCO GROWERS,
INC., and BIG SOUTH DISTRIBUTION,
LLC,
Plaintiffs,
v.
BIG SOUTH WHOLESALE OF
VIRGINIA, LLC, d/b/a BIG SKY
INTERNATIONAL, BIG SOUTH
WHOLESALE, LLC, UNIVERSAL
SERVICES FIRST CONSULTING, A/KIA
UNIVERSAL SERVICES CONSULTING
GROUP, JASON CARPENTER,
CHRISTOPHER SMALL, EMORY
STEPHEN DANIEL, and
ALBERT M. JOHNSON,
Defendants.

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ORDER

This matter is before to court on Plaintiffs' motion to extend the discovery deadline to allow
for a continuation of a Rule 30(b)(6) deposition of the ATF. [DE-424]. Defendants filed a response
[DE-427], and the matter is ripe for decision. For the reasons that follow, the motion is denied.
I. BACKGROUND

On August 26, 2015, the court entered an Amended Scheduling Order setting a discovery
deadline of May 1, 2016, a dispositive motions deadline of June 1, 2016, and setting the trial of this
matter for Judge Fox's August 29,2016 term of court. [DE-343] at 2. Counsel were cautioned that
"extension of these deadlines will be considered only upon a showing of diligence and good cause,
and extensions are not favored if they would require a continuance of the trial." !d. On April29,

2016, Plaintiffs sought an extension of the discovery deadline in order to take a Rule 30(b)(6)
deposition of the ATF on or before May 25,2016. [DE-419]. The motion was filed with the consent
of Defendants and indicated that "[n]o other deadlines, including the dispositive motions deadline
and trial date, will be affected by this extension if it is granted." !d. at 3 ~ 11. On May 3, 2016, the
court allowed Plaintiffs' motion. [DE-422].
The 30(b)(6) deposition proceeded on May 17, 2016; however, prior thereto, the government
discovered documents potentially responsive to document requests of certain Defendants and
"document requests that the A TF was in the process of negotiating with the Plaintiffs." [DE-424]
at 2. Plaintiffs and the government agreed that the May 17 deposition would be left open so that,
after Plaintiffs reviewed the document production, in the event they believed additional deposition
testimony was necessary, the deposition would continue "in a reasonable amount of time, taking into
consideration the time constraints imposed by the existing deadline." !d. at 2-3. Plaintiffs now seek
an extension of time to continue the deposition prior to June 25, 2016. !d. at 1. Plaintiffs do not
seek to extend the June 1 dispositive motions deadline or the trial setting for the August 29 term of
court. !d. at 7. Defendants do not oppose the requested extension so long as the dispositive motions
deadline and trial setting are extended. [DE-427] at 9. Plaintiffs would not agree to the extension
of those deadlines but, in the spirit of compromise, did offer not to oppose any efforts on procedural
grounds if Defendants chose to supplement their dispositive motions after the completion of the
deposition. [DE-424] at 7.

II. DISCUSSION
Rule 16 ofthe Federal Rules of Civil Procedure governs amendment of a scheduling order.
"A schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P.

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16(b)( 4). The good cause provision of Rule 16(b)( 4) does not focus on the prejudice to the nonmovant or bad faith of the moving party, but rather on the moving party's diligence. Dilmar Oil Co.
v. Federated Mut. Ins. Co., 986 F. Supp. 959,980 (D.S.C. 1997), aff'd, 129 F.3d 116 (4th Cir. 1997);
see also Cook v. Howard, 484 F. App'x 805, 815 (4th Cir. 2012) (unpublished) ('"Good cause'
requires 'the party seeking relief [to] show that the deadlines cannot reasonably be met despite the
party's diligence,' and whatever other factors are also considered, 'the good-cause standard will not
be satisfied if the [district] court concludes that the party seeking relief (or that party's attorney) has
not acted diligently in compliance with the schedule."') (quoting 6A Charles Alan Wright, Arthur
R. Miller, and Mary Kay Kane, Federal Practice and Procedure Civ. § 1522.2 (3d ed. 201 0)). The
party moving to modify a scheduling order bears the burden of demonstrating the existence of good
cause. United States v. Cochran, No.4: 12-CV-220-FL, 2014 WL 347426, at *2 (E.D.N.C. Jan. 30,
2014) (unpublished) (citing Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008)).
The court finds no good cause to extend discovery a second time for the purpose of resuming
the 30(b)(6) deposition. Plaintiffs seek permission to complete the deposition prior to June 25, but
can offer only speculation that the deposition would occur "likely within 30 days," because it is
contingent upon further production of documents by the government and Plaintiffs' subsequent
review thereof. See [DE-424] at 2-4 (detailing the agreement between Plaintiffs and the government
that the May 17 deposition would be left open so that, after Plaintiffs reviewed the document
production, in the event they believed additional deposition testimony was necessary, the deposition
would continue "in a reasonable amount of time, taking into consideration the time constraints
imposed by the existing deadline."). Importantly, correspondence from counsel for the government
dated May 15, 2016, indicates that "Plaintiffs only recently made us aware of an intention to request

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documents," and that "to provide a full response to their request would not only take the familiar
laborious authorization process, but would probably return a cache of potentially responsive
documents akin to the well-publicized 'Fast and Furious' operation-- that production required 12
attorneys and 9 months[.]" !d., Ex. A [DE-424-1] at 1 (emphasis added). This correspondence calls
into question the diligence of Plaintiffs in pursuing this line of discovery, as well as the estimated
time frame for completion of the deposition. Finally, allowing the motion would require extending
the dispositive motions deadline and delaying the trial of this long-pending case. The court declines
to adopt Plaintiffs' proposal to allow supplemental briefing, if necessary, after dispositive motions
have been filed, which is inefficient and may delay resolution ofthe motions and trial of this matter.

III. CONCLUSION
Accordingly, for the reasons stated herein, the motion is DENIED.
SO ORDERED, this the 31 day ofMay 2016.

Rdbert B. Jon~Jr:
United States Magistrate Judge

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