MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 325

REPLY, filed by Defendant DUKE UNIVERSITY, to Response to #316 MOTION to Compel filed by DUKE UNIVERSITY. (Attachments: #1 Exhibit A - Unpublished Case 2010 WL 1667285, #2 Exhibit B - Gettliffe Deposition Excerpts, #3 Exhibit C - Drummond Deposition Excerpts, #4 Exhibit D - Unpublished Case 2009 WL 324054, #5 Exhibit E - McFadyen Deposition Excerpts)(SEGARS, THOMAS)

EXHIBIT A

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Only the Westlaw citation is currently available.
United States District Court,
M.D. North Carolina.
KINETIC CONCEPTS, INC., KCI Licensing, Inc.,
KCI USA, Inc., KCI Medical Resources, Medical
Holdings Limited, KCI Manufacturing and Wake
Forest University Health Sciences, Plaintiffs,
v.
CONVATEC INC., Boehringer Wound Systems,
LLC, and Boehringer Technologies, LP, Defendants.
No. 1:08CV00918.
April 23, 2010.
R. Laurence Macon, Karen Kroesche Gulde, Melanie
G. Cowart, Akin Gump Strauss Hauer & Feld, LLP,
San Antonio, TX, William K. Davis, Bell Davis &
Pitt, P.A., Winston–Salem, NC, for Plaintiffs.
Thomas H. Beck, Neal K. Dahiya, Sidley Austin LLP,
New York, NY, Gregory P. McGuire, Ogletree Deakins Nash Smoak & Stewart, P.C., Raleigh, NC, Sarah
H. Roane, Ogletree Deakins Nash Smoak & Stewart,
P.C., Gilbert J. Andia, Jr., Greensboro, NC, Rudolph
A. Telscher, Douglas A. Robinson, Harness, Dickey &
Pierce, P.L.C., St. Louis, MO, for Defendants.
MEMORANDUM OPINION AND ORDER
L. PATRICK AULD, United States Magistrate Judge.
*1 This matter comes before the Court on two
motions from Defendants, a Motion for Reconsideration of the Court's April 2, 2010 Order Amending the
Schedule (Docket Entry 108) and a Motion to Stay the
Discovery Deadlines Set Forth in Magistrate Judge
Auld's April 2, 2010 Order (Docket Entry 111). For
the reasons that follow, the Court will deny both motions.
I. BACKGROUND
Plaintiffs instituted this action against Defendants
for patent infringement related to a wound treatment
product. (Docket Entry 4 at ¶¶ 25–29.) From the beginning, this case has been plagued by scheduling and
discovery disputes uncommon in this Court. The initial pretrial conference was set for April 22, 2009.

(Docket Entry 24.) Unlike the vast majority of litigants in this Court, the parties here could not agree to a
joint scheduling order proposal in advance of that date
and, as a result, filed separate Rule 26(f) Reports, in
which they disagreed over, among other things, the
length of the discovery period, the need for different
deadlines for fact and expert discovery, and the proper
scope of initial pretrial disclosures. (Docket Entries 25
and 26.)
In a letter addressed to United States Magistrate
Judge Wallace W. Dixon appended to their report,
Defendants explained their position on the foregoing
disputed matters as follows:
Defendants believe that this is a complex case
which warrants at least the nine month ‘exceptional’ track recognized by this Court. This case involves four patents having hundreds of claims relating to medical device technology. The patents
relate to a commercial market of approximately $1
Billion in annual revenue. It is expected that discovery will be extensive covering (among other
things) the parties' submissions in the related litigations, the research and development of the alleged
inventions, the prosecution of the four patents
in-suit, and any alleged commercial success and
other secondary considerations of non-obviousness.
The four-month fact discovery schedule proposed
by Plaintiffs is impractical at best.
Further, Plaintiffs declined to produce certain focused categories of highly relevant documents in
their initial disclosures. These categories are listed
in Section 6 of Defendants' Rule 26(f) Report....
Plaintiffs' seeking an expedited fact discovery
schedule, while on the other hand, refusing to
promptly produce highly relevant documents, cannot be reconciled.
(Docket Entry 26 at Cover Ltr., p. 1 (emphasis
added).) FN1
FN1. The “Section 6” referenced by Defendants bore the heading “Other items” and
included “categories of documents” Defendants demanded as initial pretrial disclo-

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sures, deadlines to join parties and amend
pleadings, and provisions regarding the use
of special procedures, the expected length of
trial, and the jury demand. (Docket Entry 26
at 3.) Other issues such as modifications of
the Court's limitations on the number of
depositions were set out in other sections of
Defendants' Rule 26(f) Report. (Id. at 12.)
The conference took place as scheduled. (Docket
Entry dated Apr. 22, 2009.) Magistrate Judge Dixon
did not enter a written order after said conference, but
instead submitted a minute entry that stated: “The
court ordered discovery to close in 9 months as a result
of today's hearing. The court adopts paragraph 6 of
defendants['] Rule 26(f) submission.” (Id.) The minute
entry did not address any of the other aspects of case
management, such as the propriety of different deadlines for fact and expert discovery, the number of
depositions, deadlines for expert reports, or the time
for mediation (all items that were outside of “paragraph 6” of Defendants' Rule 26(f) Report). (See id.)

expert discovery schedule. The dates are reflected in
the Joint Stipulated Scheduling Order.” (Docket Entry
36.)
On September 1, 2009, Magistrate Judge Dixon
entered the parties' Joint Stipulated Scheduling Order.
(Docket Entry 37.) Said order included these provisions: “Close of Fact Discovery: December 3, 2009”
and “Expert discovery shall be completed on or before
April 29, 2010.” (Id. at 1–2.) It required disclosure of
expert reports between the closing dates for fact and
expert discovery. (Id. at 2.) FN3 In addition to setting
out traditional case management deadlines, the Joint
Stipulated Scheduling Order established dates for the
filing of claim construction (or “Markman”) briefs,
during the same three-month period allotted under its
terms for fact discovery. (Id. at 2.) After jointly
seeking and obtaining permission to file briefs related
to the claim construction issue in excess of normal
page limitations, the parties filed the required claim
construction briefs and voluminous supporting materials. (Docket Entries 38–44, 49, 51–54.)

FN2

FN2. Nor did the minute entry state that the
nine-month discovery period should begin
immediately notwithstanding the fact that
issues related to discovery appeared to remain outstanding. (See Docket Entry dated
Apr. 22, 2009.) Between April 22, 2009, and
August 16, 2009, the docket does not reflect
any entries that indicate that the parties had
begun conducting discovery, beyond submission of the additional initial disclosures
by Plaintiffs as expressly provided for in the
Court's minute entry adopting Defendants'
position regarding that specific subject. (See
Docket Entries 27–35 and Docket Entries
dated April 22, 2009, through August 16,
2009.)
*2 On August 16, 2009, the parties filed a Joint
Stipulated Scheduling Order that was docketed as a
Joint Rule 26(f) Report (Docket Entry 35), followed
11 days later by a Joint Motion to Adopt Stipulated
Scheduling Order (Docket Entry 36). In said motion,
the parties noted that the length of the discovery period had been set at nine months and then stated: “The
parties have conferred extensively regarding the appropriate deadlines for fact and expert discovery [sic]
The parties have agreed to a twelve month fact and

FN3. The Joint Stipulated Scheduling Order
did not reflect that it was modifying an existing order directing that discovery (both
fact and expert) should occur during a particular nine-month period (i.e., between April
22, 2009, and January 22, 2010) or, indeed,
that it was modifying any existing order; nor
did it set out any indication that the parties
had been conducting discovery since April
22, 2009. (See Entry 37 at 1–2.)
The harmony reflected by the parties' agreement
to the Joint Stipulated Scheduling Order did not last
long; Defendant ConvaTec Inc. soon filed a Motion to
Compel Discovery (Docket Entry 57). That dispute
spun off a round of satellite litigation in the form of
Plaintiffs' Objections to ConvaTec's Reply and Request to File a Sur–Reply in Opposition to ConvaTec's
Motion to Compel (Docket Entry 72), to which Defendant ConvaTec Inc. responded (Docket Entry 74).
In addition, two weeks after the close of briefing on
the claim construction issue, Defendants launched a
new round of briefing related to the issue of whether
the Court should conduct an expedited hearing on
claim construction. (Docket Entry 60.) That briefing
(which ran through early December (see Docket Entries 66, 67, and 71)) overlapped with litigation over
Defendants' request for leave to add a counterclaim

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against Plaintiffs for inequitable conduct (Docket
Entries 62, 68, 69, and 76).
Further, despite representations dating back to
April 17, 2009, that they would “seek a mutually
agreeable Protective Order to cover prospective disputes over confidential business or other trade secret
information” (Docket Entry 26 at 4), as of January 7,
2010, the parties had not been able to accomplish this
task and, instead, Defendant ConvaTec Inc. filed a
Motion for Protective Order (Docket Entry 79). Despite the Court's entry of no less than four orders over
the course of a month to allow the parties time to
resolve their disagreement about the terms of the
protective order (Docket Entries 87, 90, 92, and 95),
the parties could not find common ground on this
relatively basic matter (again, unlike the vast majority
of other litigants); instead, Plaintiffs ultimately responded in opposition (Docket Entries 99–100), the
other defendants filed a position (Docket Entry 101),
and Plaintiffs filed a reply (Docket Entry 104).
*3 In the midst of the foregoing flurry of disputes
and briefing (which did not constitute an exhaustive
catalog of all the parties' filings during the period), on
the day fact discovery closed, Plaintiffs filed a Motion
to Amend Scheduling Order (Opposed). (Docket Entry 70.) A week later, Plaintiffs replaced that motion
with an Amended Motion to Amend Scheduling Order
(Opposed), in which they asserted that good cause for
an extension of the case management deadlines exists,
because “all parties require additional time to complete fact and expert discovery.” (Docket Entry 75 at
3.) Plaintiffs did not provide detailed information
about the discovery that remained outstanding or why
necessary discovery was not (or could not be) completed during the allotted time, but they did assert that
the parties “have been continually producing thousands of documents,” (id.).
Defendants countered with an unconventional
filing they denominated “Defendants' Response Conditionally Opposing Plaintiffs' Motion to Amend
Scheduling Order.” (Docket Entry 77.) The “condition” on which Defendants opposed Plaintiff's request
to extend discovery deadlines had nothing to do with
the presence or absence of “good cause”; to the contrary, in the 46 full or partial lines of type Defendants
devoted to their filing, they never stated a position of
any sort regarding Plaintiffs' argument that good cause
existed for the requested scheduling modifications.

(See id. at 2–3.) FN4 Indeed, the words “good cause” do
not appear in Defendants' filing. (See id.) Further,
Defendants neither disputed Plaintiffs' assertion that
the parties had exchanged a substantial volume of
documents nor argued that Plaintiffs should have
completed fact discovery by December 3, 2010. (See
id.)
FN4. The page citations for said document
come from its CM/ECF footer, not Defendants' pagination (which differs because it assigns no number to the cover page).
Instead, Defendants stated that they “conditionally oppose Plaintiffs' [request] seeking to extend the
fact and expert discovery deadlines ... [if it] would
merely allow Plaintiffs to create further delays, including the delay of a claim construction hearing.” (Id.
at 2.) They continued:
Defendants already have a pending motion requesting that the Court hold a claim construction
hearing at its earliest convenience, which motion
Plaintiffs have unreasonably opposed. A prompt
claim construction hearing will help guide all future
fact and expert discovery that may take place. Thus,
Defendants do not oppose Plaintiffs' motion to
amend the Scheduling Order, if Plaintiffs agree to
request that the Court hold a prompt claim construction hearing.
(Id. (internal citations omitted) (emphasis added).) Defendants then devoted two-plus paragraphs
(17 lines) to attacking Plaintiffs' position on the claim
construction hearing (a subject about which—in contrast to the good cause issue—extensive briefing already had occurred). (Id. at 2–3.) FN5
FN5. Both before and after the quoted discussion of the claim construction issue, Defendants offer the following lone sentence:
“Plaintiffs' repeated delays in this case have
already substantially prejudiced Defendants'
ability to prepare for trial” [or in the second
version of the sentence, “Defendants' trial
preparations”]. (Docket Entry 77 at 2–3.) The
only support Defendants offered for this
conclusory assertion was a citation to Defendant ConvaTec Inc.'s Motion to Compel.
(Docket Entry 77 at 3.)

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Defendants concluded by requesting: “that, if the
Court grants Plaintiffs' Motion for an extension of the
discovery schedule, that [sic] the Court also schedule a
claim construction hearing in January 2010. Moreover, Defendants respectfully request that any extension should not delay the currently scheduled October
4, 2010 trial date.” (Id. at 3.) In a final footnote, Defendants left open the possibility that, even if the
Court denied Plaintiffs' request for an extension of the
discovery period, Defendants might seek relief from
the existing discovery deadlines: “Defendants can
likely move forward with their case without any extension if the Court chooses to deny Plaintiffs' Motion,
depending on the resolution of ConvaTec's Motion to
Compel. Defendants request, however, that any
granted extension apply equally for all parties.” (Id. at
3 n. 2 (internal citation omitted) (emphasis added).)
Plaintiffs filed a reply pointing out that Defendants
essentially had conceded that good cause existed for
additional discovery. (Docket Entry 78.)
*4 On April 2, 2010, the undersigned United
States Magistrate Judge entered an order granting in
part Plaintiffs' request to modify the Joint Stipulated
Scheduling Order. (Docket Entry 107.) Said order: 1)
discussed the applicable “good cause” standard; 2)
noted Plaintiffs' position (including the shortcomings
of their showing as to their efforts to carry out discovery); 3) pointed out Defendants' failure to rebut
matters alleged by Plaintiffs, its tacit admission that
the parties needed to conduct more fact discovery, and
its limited prejudice arguments (focused on the dates
for the claim construction hearing and the trial); and 4)
reviewed other record information about the parties'
activities during the time period between the entry of
the Joint Stipulated Scheduling Order on September 1,
2009, and the close of fact discovery on December 3,
2010 (including the elaborate briefing and evidence-marshaling required as to claim construction).
(Id. at 4–10.) The April 2, 2010 Order then reviewed
cases from other district courts within this Circuit that
had denied requested modifications of scheduling
orders and determined that such cases involved much
more obvious failures of diligence by the movant than
appeared in this case. (Id. at 10–11.) Finally, said
order found that Defendants had admitted that both
parties needed more discovery and that the failure to
direct such would undermine the objectives underlying Rule 16. (Id. at 11.)
Based on the foregoing considerations, the un-

dersigned Magistrate Judge found that, although the
case was close, good cause existed for extension of
some, but not all, of the case management deadlines.
(Id. at 11–13.) In particular, no alteration was authorized of party addition or pleading amendment
dates to minimize the risk of trial delay. (Id. at 12–13.)
This portion of the April 2, 2010 Order concluded
with an observation about the difficulty of balancing
the competing concerns of giving “good cause” sufficient content to cause parties to respect the scheduling
order, but also of not raising the “good cause” standard so high as to create an incentive for parties establishing initial schedules to seek lengthier-than-needed
discovery periods due to fear that they could not obtain an extension if they misjudged the amount of time
needed for discovery. (Id. at 12 n. 7.)
Defendants promptly filed the instant motions for
reconsideration and for stay, as well as objections.
(Docket Entries 108, 110 and 111.) On April 8, 2010,
the parties appeared before the assigned United States
District Judge for a status conference regarding the
claim construction hearing issue. (Docket Entry dated
Apr. 8, 2010.) The minute entry from that conference
reflects that the “parties agreed to scheduling of the
Markman Hearing on 6/2/2010 @ 9:30 a.m.” (Id.) A
subsequent written order confirmed that hearing setting and established November 15, 2010, as the trial
date. (Docket Entry 114.) FN6
FN6. After entry of the Joint Stipulated
Scheduling Order, the Clerk set this case
(along with others) for trial during the October 2010 Master Calender Term (which
begins October 4, 2010, and runs for weeks).
(Docket Entry 46.)
*5 Late April 14, 2010, Defendant ConvaTec Inc.
moved for a protective order to block a deposition
noticed by Plaintiffs for the next day. (Docket Entry
115.) The undersigned Magistrate Judge promptly
denied that motion, but shortened the time for Plaintiffs to respond to the instant motions for reconsideration and to stay to April 20, 2010. (Docket Entry 118
at 3.) Defendant ConvaTec Inc. immediately filed
objections to said order and requested expedited review. (Docket Entry 119.) The assigned District Judge
declined to take up the matter, but requested that the
parties attempt to schedule remaining discovery after
April 26, 2010, to give the undersigned Magistrate
Judge an opportunity to rule on the instant motions for

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reconsideration and to stay after Defendants responded and Plaintiffs had a chance to file any reply.
(Docket Entry dated April 16, 2010.) Said responses
and replies have now been filed. (Docket Entries
120–123.)
II. DISCUSSION
As the April 2, 2010 Order recognized, once set,
“[a] schedule may be modified only for good cause
....“ Fed.R.Civ.P. 16(b)(4). See also M.D.N.C. R.
26.1(d) (stating that motions seeking extension of
discovery period “must set forth good cause justifying
the additional time and will be granted or approved
only upon a showing that the parties have diligently
pursued discovery”) FN7; Fed.R.Civ.P. 16 advisory
committee's note, 1983 Amendment, Discussion,
Subdivision (b) (“[T]he court may modify the schedule on a showing of good cause if it cannot reasonably
be met despite the diligence of the party seeking the
extension.”). The “good cause” standard for securing
an amendment of the time-limits in a scheduling order
does not require a litigant to go so far as to show
“manifest injustice” or “substantial hardship.” See
Fed.R.Civ.P. 16 advisory committee's note, 1983
Amendment, Discussion, Subdivision (b). Instead,
“the touchstone of ‘good cause’ under Rule 16(b) is
diligence.” Marcum v. Zimmer, 163 F.R.D. 250, 255
(S.D.W.Va.1995).
FN7. Defendants intimate that, under the
Court's Local Rules, Plaintiffs must show
“exceptional good cause,” because they seek
“additional depositions.” (Docket Entry 109
at 7 n. 1.) The Local Rule cited by Defendants clearly differentiates between requests
for “extension of the discovery period” and
“for more discovery.” M .D.N.C. R. 26.1(d).
Consistent with Federal Rule of Civil Procedure 16 and the relevant commentary
thereto, said Local Rule requires “good
cause” for extensions of the discovery period; the requirement of “exceptional good
cause” applies only to requests for “additional” depositions in the sense of a greater
number than allowed by prior order, not in
the sense of depositions outside the previously-set time for discovery.
In the April 2, 2010 Order, the undersigned
Magistrate Judge found that, although the case was
close, good cause existed for a limited extension of

discovery deadlines. In their instant motion for reconsideration, Defendants make three discrete arguments against that determination:
1) Defendants will suffer unfair prejudice because
they continued to labor under the deadlines in the Joint
Stipulated Scheduling Order during the four-month
period between the filing of Plaintiffs' request for
modification of the Joint Stipulated Scheduling Order
and the entry of the April 2, 2010 Order (Docket Entry
108 at 2);
2) Plaintiffs never made any efforts to complete
fact discovery and this lack of diligence precludes a
finding of good cause (id.); and
3) the April 2, 2010 Order inferred facts that are
clearly erroneous (id.).
As to the first of these contentions, the only concrete prejudice Defendants identify is that expert reports will have to be re-done. (Docket Entry 109 at
3–5.) FN8 The undersigned Magistrate Judge regrets
that the parties may have to expend additional resources updating expert reports to account for any new
information produced during the re-opened fact discovery period; however, this unfortunate side-effect of
the April 2, 2010 Order constitutes an insufficient
reason to alter the determination that additional discovery is appropriate. The Court, including the undersigned Magistrate Judge, has many cases. Given
that fact, the rule cannot be that a party otherwise
entitled to a modification of a scheduling order loses
that right because the Court is unable to immediately
address the party's request for such modification,
particularly where, as here, the delay in question is
relatively brief. Defendants have not cited any authority that would support their contrary position in
this regard. FN9
FN8. Page references as to this document
come from the CM/ECF footer, not Defendants' pagination (which, again, differs
due to its use of an unnumbered cover page).
FN9. The only case Defendants cite in the
portion of their primary brief devoted to the
“unfair prejudice” issue is Reliance Ins. Co.
v. Louisiana Land Exploration Co., 110 F.3d
253, 257–58 (5th Cir.1997). (Docket Entry
109 at 5.) Said case sheds no light on this

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one. In that case, “Reliance filed its expert
report on time, and [their expert] gave his
deposition during the 30 days between the
deadline for [defendants'] expert reports.”
Reliance Ins., 110 F.3d at 256. The deposition did not go well for Reliance. See id . at
256–57. “Based on the report and the deposition, [defendants] decided that [they] did
not need to counter [Reliance's expert's] testimony with an engineering expert of [their]
own. Ten days after the defendants' deadline
for submitting expert reports had passed,
Reliance sought the court's permission to
supplement [its expert's] report.” Id. at 257.
The defendants “vigorously opposed Reliance's motion to supplement the report. They
pointed out that the discovery cut-off date
was only three weeks away and that the
supplement might cause them to need an engineering expert of their own. With pretrial
conference only two months away, delays
were likely.” Id. The court affirmed the denial of Reliance's request because “Reliance
asked for an opportunity to avoid the deadline for its expert report merely because the
deposition of its expert witness did not go
well ... [and] would prejudice the defendants,
who would then have to get an expert to address these last-minute conclusions, and thus
disrupt the trial date in this case.” Id. at
257–58. To call the circumstances of that
case “distinguishable” from the situation here
would qualify as an understatement. The
Court finds Defendants' citation of Reliance
Ins. as support for Defendants' prejudice argument without more explanation and without any acknowledgment of the foregoing
distinguishing features troubling. In its reply
brief, Defendants also cite decisions from the
Eighth Circuit and from district courts in
Ohio, Tennessee, and Michigan, for the
purpose of parrying Plaintiffs' argument that
any burden from the extension of discovery
deadlines falls equally on both parties.
(Docket Entry 122 at 3 (per CM/ECF footer
pagination)). The Court does not rely on that
argument by Plaintiffs and thus no reason
exists to analyze these cited cases. The Court
does note, however, that a review of each of
said cases reinforces the analysis in the April
2, 2010 Order of cases from district courts
within the Fourth Circuit. (Docket Entry 107

at 10–11.) Specifically, in each of the cases
cited by Defendants, the lack of diligence by
the party seeking relief from deadlines was
patent. See Bradford v. Dana Corp., 249 F.3d
807, 809 (8th Cir.2001) (finding that plaintiff
“never conducted any discovery,” failed to
pay her attorney as agreed, and failed to
make reasonable efforts to secure new
counsel); Altair Eng'g, Inc. v. LEDdynamics,
Inc., No. 07CV13150, 2009 U.S. Dist.
LEXIS 23363, at *17 (E.D.Mich. Mar. 24,
2009) (unpublished) (rejecting plaintiff's
proposal to amend infringement contentions
right before trial after “discovery and expert
discovery ha[d] closed and dispositive motions ha[d] been filed” where plaintiff's “sole
reason for the extension sought [of time to
amend claims] is that the Court rejected its
claim construction analysis”); EEOC v. Autozone, Inc., 248 F.R.D. 542, 543–44
(W.D.Tenn.2008) (denying defendant's request to allow identification of expert witness
three years after deadline passed and six
months after defendant failed to ask for such
relief during status conference at which court
relaxed other discovery deadlines); Morgan
v. Del Global Technologies Corp., No.
3:05CV123, 2007 U.S. Dist. LEXIS 43716,
at *5 (W.D. Ohio June 7, 2007) (unpublished) (refusing to extend discovery
deadlines where, over the course of three
years and notwithstanding prior extension of
deadlines, plaintiff “never conducted any
discovery in this action and has yet to provide
his Rule 26(a)(1) disclosures”).
*6 Further, to the extent Defendants complain
that Plaintiffs now can correct what Defendants perceive as deficiencies in Plaintiffs' expert reports, the
undersigned Magistrate Judge similarly finds that
complaint insufficient to overcome the finding that
further discovery is needed, including to promote the
goals underlying the scheduling order requirement and
the “good cause” standard for modifications. See
Forstmann v. Culp, 114 F.R.D. 83, 84–85
(M.D.N.C.1987) (“The drafters of the Rules intended
this order ... to improve the quality of justice rendered
in the federal courts by sharpening the preparation and
presentation of cases, tending to eliminate trial surprise....”).

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Moreover, Defendants' suggestion that the undersigned Magistrate Judge should not have issued the
April 2, 2010 Order “without hearing from the parties
[or] without seeking updated information” (Docket
Entry 109 at 3) is rejected. If Defendants desired a
hearing prior to entry of an order, they should have
filed a motion to that effect. If Defendants felt that the
Court should have additional information prior to
ruling, Defendants had the obligation to seek leave to
provide such supplemental information. Defendants
have shown no hesitancy to file motions seeking all
manner of relief; the Court sees no reason why, in this
one area, the Court has the burden of initiating contact.
FN10

FN10. To the extent Defendants contend that
the windows between the various new deadlines are too short (Docket Entry 109 at 5),
they should consult with their opponents in
an effort to find a mutually-agreeable modification of those dates and seek that relief
from the Court. This contention thus does not
provide any basis to re-institute the old
deadlines. The new deadlines were set in a
relatively tight sequence in an effort to accommodate Defendants' request that the trial
date remain as scheduled; given that said date
has been set for November 15, 2010 (removing the possibility that trial might begin
at the start of the October 2010 Master calendar), room likely exists to relax the discovery deadlines slightly. Similarly, the
Court finds that if, as defendants complain,
the discovery propounded by Plaintiffs after
the April 2, 2010 Order is unduly broad
(Docket Entry 122 at 5–7), they may attempt
to resolve that issue with their opponent (and,
failing that, the Court). These complaints do
not establish grounds for reconsideration.
As to Defendants' second argument, their attack
on the good cause and interwoven diligence issues, it
should be noted that, when they had the opportunity to
address this matter after Plaintiffs sought modification
of the Joint Stipulated Scheduling Order, Defendants
demurred. As detailed in the Background Section
above, Defendants studiously avoided any discussion
of good cause in their filing at that time. Then, not
now, was the time for all of Defendants' belated assertions about the alleged total lack of effort by
Plaintiffs to pursue discovery and “bare-bones” nature

of Plaintiffs' showing (id. at 2, 5).FN11
FN11. As documented above in the Background Section, “Defendants' Response
Conditionally Opposing Plaintiffs' Motion to
Amend Scheduling Order” (Docket Entry 77)
never alleged, much less showed, that Plaintiffs failed to act diligently in securing discovery for themselves. In the light most favorable to Defendants, the most they alleged
(in conclusory fashion) was that Plaintiffs
delayed Defendants' efforts to obtain documents from Plaintiffs. Read in context, it is
clear that all Defendants wanted to discuss in
said filing was the claim construction issue
and, to a much lesser extent, the trial date.
Neither of these matters had any bearing on
the good cause determination.
Defendants attempt to avoid the implications of
their failure to challenge Plaintiffs' showing of good
cause at the proper time by asserting that they “did not
concede that Plaintiffs' Amended Motion [seeking
modification of the Joint Stipulated Scheduling Order]
showed good cause to extend discovery.” (Id. at 9.)
The Court disagrees in light of the Local Rules directing that:
1) “[t]he respondent, if opposing a motion, shall
file a response, including brief,” M.D.N.C. R. 7.3(f)
(emphasis added); FN12
FN12. “Response” is defined as “something
said or done in answer; reply or reaction.”
Webster's New World Dictionary 1211 (2d
College ed.1980).
2) “[a]ll briefs filed with the court shall contain.
argument, which shall refer to all statutes, rules and
authorities relied upon,” M.D.N.C. R. 7.2(a) (emphasis added); FN13
FN13. “Argument” is defined as “[a]n effort
to establish belief by a course of reasoning.”
Black's Law Dictionary 107 (6th ed.1990).
3) “[i]f a respondent fails to file a response within
the time required by this rule, the motion will be considered and decided as an uncontested motion, and
ordinarily will be granted without further notice,”

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(Cite as: 2010 WL 1667285 (M.D.N.C.))
M.D.N.C. R. 7.3(k) (emphasis added);
*7 4) “[a] response unaccompanied by a required
brief may, in the discretion of the court, be disregarded
and the pending motion may be considered and decided as an uncontested motion,” id. (emphasis added).
When Plaintiffs filed their request for modification of the scheduling order, Defendants did not say
anything in reply or reaction to Plaintiffs' argument
that good cause existed for an extension of the discovery period. As a result, Defendants effectively
filed no “response” on this issue and, under Local
Rule 7.3(k), conceded the matter. Similarly, in their
memorandum “conditionally oppos[ing] Plaintiff's ...
Motion to Amend Scheduling Order” (Docket Entry
77 at 2), Defendants failed to make any effort to establish a belief that “good case” did not exist by a
course of reasoning. Accordingly, they did not include
any “argument” on this issue in their “brief” as required by Local Rule 7.2(a). Defendants' failure to file
a “brief” on this issue (in the manner required by
Local Rule 7.3(f)) constitutes a concession within the
terms of Local Rule 7.3(k).
This Court, per United States Magistrate Judge P.
Trevor Sharp, has applied an analogous analysis based
on these Local Rules. See Wainright v. Carolina Motor Club, Inc., No. 1:03CV01185, 2005 WL 1168463,
at *13 (M.D.N.C. Apr.27, 2005) (unpublished) (“At
the outset, the Court notes that Plaintiff failed to make
any argument in her brief regarding her failure to
promote claim. In the face of [Defendant's] arguments
and supporting evidence in its brief in support of
summary judgment, Plaintiff's failure to argue this
claim is tantamount to abandonment of the claim. See
Local Rule 7.3(k).”).
Other courts have construed similar local rules in
a like manner: “Pursuant to this Court's local rules, a
memorandum of opposing points and authorities shall
be filed in opposition to a motion and, if such a
memorandum is not filed, the court may treat the
motion as conceded. Courts have interpreted this local
rule to apply to specific arguments within a memorandum opposing a motion.” U.S. Real Property
Identified as: Parcel 03179–005R, 287 F.Supp.2d 45,
61 (D.D.C.2003) (ruling that, where claimants failed
to develop response on innocent owner issue in its
brief, “Court will treat this argument as conceded”)

(internal citations and quotation marks omitted). Accord United States v. Roberts, No. 3:08CR175, 2010
WL 234719, at *19 (E.D.Tenn. Jan.14, 2010) (unpublished) (“The Court initially addresses the defendant's contention that the government has essentially conceded this issue by failing to address it in its
response. Our local rules provide in pertinent part that
the ‘failure to respond to a motion may be deemed a
waiver of any opposition to the relief sought.’ The
government did file a five-page response ..., but it did
not address the third of the defendant's four contentions.... [T]he government did not respond even in the
wake of having the possible oversight brought to its
attention [in defendant's reply]. The Court knows of
no way to interpret this course of conduct other than a
waiver of the issue.” (internal brackets and citations
omitted)).
*8 Moreover, in a variety of different contexts, a
large number of courts (including this Court, per
United States District Judge Frank W. Bullock, Jr.)
have recognized the general principle that a party who
fails to address an issue has conceded the issue. See,
e.g., Kissi v. Panzer, 664 F.Supp.2d 120, 123
(D.D.C.2009) (“Because the plaintiff's opposition fails
to address the defendants' arguments, the Court may
treat the defendants' motion as conceded.”); American
Registry of Radiologic Technologists v. Bennett, 655
F.Supp.2d 944, 946 n. 2 (D.Minn.2009) (“It is well
established that a party concedes an issue by failing to
address it in an opposing brief.”); Hostway Corp. v.
JPMorgan Chase Bank, N.A., No. 09CV151, 2009
WL 2601359, at *6 (N.D.Ill. Aug.24, 2009) (unpublished) (“By failing to address JPMorgan's republication argument in its response brief, Hostway has at
least tacitly conceded the point.”); Fletcher v. Chicago
Rail Link, LLC, No. 06C842, 2007 WL 4557816, at *3
(N.D.Ill.Dec.20, 2007) (unpublished) (“Fletcher failed
to address this argument in his response and thus has
effectively conceded the point.”); Ziino v. Baker, No.
5:07CV217Oc10GRJ, 2007 WL 2433902, at *2
(M.D.Fla. Aug.22, 2007) (unpublished) (“Indeed, the
Plaintiff tacitly conceded the validity of the Defendant's argument ... by failing to address this issue in
response to the motion to dismiss.”); Rangel v. Reynolds, No. 4:07CV20AS, 2007 WL 1189356, at *2
(N.D.Ind. Apr.18, 2007) (unpublished) (“This Court
notes that, in their response, the plaintiffs concede that
the first two prongs of Younger [abstention doctrine]
are met by failing to address them.”); Topliff v.
Wal–Mart Stores East LP, No. 6:04CV297 (GHL),
2007 WL 911891, at *7 (N.D.N.Y. Mar.22, 2007)

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(unpublished) (“Failure to oppose one of the legal
arguments advanced by a movant on a motion to exclude expert testimony shall be deemed ‘consent’ to
exclusion based on that legal argument.”); Pennsylvania v. United States, No. CIV A05–1345, 2006 WL
2708177, at *1 n. 2 (W.D.Pa. Sept.19, 2006) (unpublished) (“Pennsylvania has failed to address this
argument in its responsive brief and therefore appears
to be conceding that the Court's jurisdiction here
cannot be premised on either the Little Tucker Act or
the Mandamus Act.”); Brand v. North Carolina Dep't
of Crime Control and Pub. Safety, 352 F.Supp.2d 606,
618 (M.D.N.C.2004) (Bullock, J.) (“In Plaintiff's brief
in response to Defendants' motion for summary
judgment, Plaintiff does not address ... his hostile
work environment claim. By failing to respond,
Plaintiff concedes that he has not stated a hostile work
environment claim.”); Hamilton v. Cunningham, 880
F.Supp. 1407, 1412 (D.Colo.1995) (“Cunningham
apparently concedes Plaintiffs' limitations analyses ...,
having failed to address either in his brief.”); In re
Paoli R.R. Yard PCB Litig., No. 86–2229, et al., 1992
WL 323589, at *2 (E.D.Pa. Oct.21, 1992) (unpublished) ( “Plaintiffs' response to this motion completely fails to address Defendants' position with respect to [this issue] and is therefore deemed to admit
and concede its correctness.”).
*9 Given the fact that Defendants conceded the
“good cause” issue by failing to respond to it at the
appropriate time, Defendants' third argument in support of its reconsideration motion also lacks merit.
Specifically, given Defendants' concession that good
cause existed (and, through that concession, that
Plaintiffs had acted sufficiently diligently to qualify
for the requested modification), Defendants' contentions that the undersigned Magistrate Judge made
clear errors of fact in finding good cause (and, subsidiarily, sufficient diligence by Plaintiffs) are irrelevant. Further, even if considered, Defendants' allegations in this regard lack merit.
Defendants first object that the undersigned
Magistrate Judge “infer[red] good cause from Plaintiffs' conclusory and vague statements that thousands
of documents have been produced in this case, and
that depositions were needed. Nowhere did Plaintiffs
state, however, that they were unable to complete
discovery in light of a production that was too large to
review, or that they were unable to complete depositions prior to the close of fact discovery.” (Docket

Entry 109 at 6.) The Court finds now, as it did on April
2, 2010, that, although Plaintiffs could have made
their case in this regard more clearly, one reasonably
may infer from Plaintiffs' representations that they
acted sufficiently diligently by participating in the
exchange of a large volume of documents and that the
large scale of the documentary material contributed to
their failure to complete fact discovery. The Court did
not clearly err in this regard.
Next, Defendants focus on the fact that Plaintiffs
did not (and allegedly could not) assert that Defendants hampered Plaintiffs' efforts to conduct discovery.
Given that the April 2, 2010 Order did not rely on any
inference that Defendants caused any delay in discovery (see Docket Entry 107 at 9 (noting inability to
affix blame for any delays to either side)), this
straw-man argument fails to aid Defendants' cause.
According to Defendants, “[t]he April 2 Order
also incorrectly states that the parties had
‘self-selected’ a three month fact discovery period.
This is incorrect.... Fact discovery opened on April 22,
2009, at a Status Conference with the Court (see April
22, 2009 Minute Entry), and did not conclude until
December 3, 2009, a span of over seven months.”
(Docket Entry 109 at 6.) Defendants' argument in this
regard relies on a distortion of the language of the
April 2, 2010 Order wherein the Court used the word
“self-selected.” Specifically, the Court stated: “the
parties' self-selected three-month window for completion of fact discovery was unduly optimistic, particularly given the volume of documents to be exchanged and their simultaneous involvement in elaborate briefing and evidence marshaling on the claim
construction issue.” (Docket Entry 107 at 10.) The
Court thus did not state that “the parties had
‘self-selected’ a three month fact discovery period.”
*10 For reasons hopefully made clear in the
Background Section above, upon reviewing the record
in this case in preparing the April 2, 2010 Order, the
undersigned Magistrate Judge was uncertain about
what, if anything, happened (and/or was authorized to
happen) between April 22, 2009, and entry of the Joint
Stipulated Scheduling Order on September 1, 2009.
What was clear, however, was that, as of shortly before September 1, 2009, via their submission of the
Joint Stipulated Scheduling Order, the parties
“self-selected [a] three-month window [i.e., between
September 1, 2009, and December 3, 2009] for com-

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pletion of fact discovery.” Accordingly, the April 2,
2010 Order said precisely that. The undersigned
Magistrate Judge stands by the foregoing description
of the circumstances, as well as the conclusions that:
1) trying to complete fact discovery during that
three-month period with all of the other commitments
the parties bound themselves to (including, in particular, briefing of the claim construction issue) was
unduly optimistic; and 2) Plaintiffs' failure to complete fact discovery under such circumstances did not
establish a lack of diligence. The Court did not clearly
err in this regard.FN14
FN14. Defendants' lengthy discussion of
what Plaintiffs proposed as to the discovery
schedule at times prior to December 3, 2009
(Docket Entry 109 at 6–7), sheds little, if any,
light on the question of whether good cause
existed to extend the fact discovery period on
December 3, 2009. Defendants have not
shown that Plaintiffs acted in bad faith in this
regard and the Court finds no grounds for
reconsidering the April 2, 2010 Order.
Moreover, if Plaintiff's prior positions had
relevance, Defendants should have presented
that argument as a reason for the Court to
find an absence of good cause when Plaintiffs moved to modify the scheduling order.
They did not.
Finally, Defendants insist that the Court erred by
taking note of the competing demands under which the
parties labored in the fall of 2009 in finding good
cause for an extension of the discovery period beyond
December 3, 2009. (Docket Entry 109 at 8.) Notably,
Defendants acknowledge elsewhere in their brief,
however, that “[t]he parties did spend considerable
efforts on the claim construction briefing,” (id. at 3).
Moreover, Defendants have failed to cite any authority
for the proposition that a court may not take notice of
its own records in assessing whether reasons existed
why discovery was not completed during the allotted
time. Nor would any authority short of that from the
Fourth Circuit or the United States Supreme Court
persuade the undersigned Magistrate Judge that such
judicial action constitutes clear error.FN15

constituted a substantial undertaking, referenced Defendants' need to secure a brief extension of time to file one of their claim
construction briefs. (Docket Entry 109 at
8–9.) Specifically, Defendants contend that a
computer problem caused the one-day delay.
Defendants have missed the forest in focusing on a very small tree. The relevant point is
that, even with substantial personnel resources, preparation of the claim construction brief (including marshaling the substantial evidentiary material filed as exhibits
therewith) was substantially demanding
enough that Defendants had to come right
down to the wire to get it done. That analysis
remains, at a minimum, free from clear error
so egregious as to undermine the good cause
determination.
III. CONCLUSION
Defendants have not shown that the Court should
reconsider the April 2, 2010 Order. Moreover, the
absence of any substantial showing by Defendants in
this regard convinces the Court that a stay of said
order is unwarranted.
IT IS THEREFORE ORDERED that Defendants' Motion for Reconsideration of the Court's April
2, 2010 Order Amending the Schedule (Docket Entry
108) and Defendants' Motion to Stay the Discovery
Deadlines Set Forth in Magistrate Judge Auld's April
2, 2010 Order (Docket Entry 111) are both DENIED.
M.D.N.C.,2010.
Kinetic Concepts, Inc. v. Convatec Inc.
Not Reported in F.Supp.2d, 2010 WL 1667285
(M.D.N.C.)
END OF DOCUMENT

FN15. Defendants seek to make much of a
footnote in the April 2, 2010 Order that, in
the course of giving many reasons to conclude that the claim construction briefing

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.