TYNDALL v. MAYNOR
Filing
37
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 01/07/2013; that Defendant's Motion to Amend Answer (Docket Entry 29 ) is DENIED. FURTHER that Plaintiff's Motion to Amend Discovery Schedule (Docket Entr y 32 ) is DENIED, except as to mediation, which the parties shall conduct by February 15, 2013. FURTHER that, on or before January 18, 2013, the parties shall file a joint report setting out their shared or respective views on whether and, if so, why certain exhibits (Docket Entry 3 ), the Complaint (Docket Entry 5 ), and the Summons (Docket Entry 6 ) should remain under seal. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
AMOS TYNDALL, Administrator of )
the Estate of Timothy E. Helms, )
)
Plaintiff,
)
)
v.
)
)
TIMOTHY DEAN MAYNOR,
)
Individually and Officially,
)
)
Defendant.
)
1:11CV836
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendant’s Motion to
Amend Answer (Docket Entry 29) and Plaintiff’s Motion to Amend
Discovery Schedule (Docket Entry 32). For the reasons that follow,
the Court will deny Defendant’s Motion to Amend Answer and will
deny Plaintiff’s Motion to Amend Discovery Schedule, except as to
the request for an extension of the mediation deadline.
The Court
also will require the parties to show cause why the Complaint and
related documents should remain under seal.
BACKGROUND
Attorneys S. Luke Largess of Tin Fulton Walker & Owen PLLC,
Lynne M. Holtkamp of the Holtkamp Law Firm, and Barry T. Winston of
the Law Office of Barry Winston instituted this action in state
court on Plaintiff’s behalf.
(Docket Entry 5 at 16-17.)
On
October 6, 2011, Defendant removed the case to this Court via a
Notice filed by Peter A. Regulski, an Assistant Attorney General
(“AAG”) with the North Carolina Department of Justice (“NCDOJ”).
(Docket Entry 1.)1
Defendant simultaneously moved:
1) for leave to file certain exhibits (Docket Entry 3), the
Complaint (Docket Entry 5), and the Summons (Docket Entry 6) “under
seal
subject
to
this
Court’s
determination
of
whether
the
protective order entered in [a related case before the North
Carolina Industrial Commission (‘NCIC’)] is authoritative herein,
whether its terms ought to be adopted herein, or whether a new
protective order ought to be entered” (Docket Entry 2 at 3); and
2) for an extension of time from October 13, 2011, the
deadline under Federal Rule of Civil Procedure 81(c)(2) (see Docket
Entry 4 at 1), “to and including 12 December 2011 in which to
answer or otherwise to plead” (id. at 3), due to AAG Regulski’s
need for more time “to complete review [of the case and materials
from
the
related
NCIC
case]
and
prepare
an
answer
or
other
response” (id. at 2), as well as his other work demands (id. at 3).
After the Court granted both of the foregoing Motions (Docket
Entries 9, 10), Defendant moved, on December 7, 2011, for a further
1
According to said Notice, “Plaintiff seeks redress pursuant
to 42 U.S.C. § 1983 claiming Defendant, a correctional officer,
violated the Eighth Amendment rights of Plaintiff’s decedent, an
inmate in the custody of the North Carolina Department of
Correction, by his alleged use of excessive force and by his
alleged deliberate indifference.” (Docket Entry 1 at 1 (internal
parenthetical omitted).)
2
extension “up to and including 31 January 2012 in which to answer
or otherwise plead.”
(Docket Entry 11 at 2.)
In support of that
request, Defendant noted the following:
On 8 October 2011 [AAG Regulski] began to experience
serious health symptoms.
[He] was admitted to the
hospital on 11 October 2011 for emergency surgery. [AAG
Regulski] was released from the hospital on 20 October
2011 but not medically cleared to return to work. On 30
October 2011, [he] was readmitted to the hospital with
further complications and [underwent] additional surgery.
[AAG Regulski] was released from the hospital on 4
November 2011 but not medically cleared to return to
work. On 25 November 2011, [he] was readmitted to the
hospital for a third time with additional complications.
[AAG Regulski] was released this final time on 1 December
2011, but has not been cleared to return to work as of
this date.
It is unlikely [he] will be permitted to
resume work prior to 31 December 2011 and then with
limited restrictions.
(Id. at 1-2.)
The Court granted that Motion.
(Docket Entry 12.)
Thereafter, on December 31, 2011, a second AAG with the NCDOJ
appeared and answered for Defendant.
(Docket Entries 13, 14).2
Following litigation over venue (see Docket Entry 22),3 in a joint
report filed May 21, 2012, the parties agreed, in relevant part, to
these case-management deadlines:
1) “[t]he date for the completion of all discovery (general
and expert) is January 13, 2013” (Docket Entry 24 at 2 (internal
colon omitted));
2
A third AAG later appeared for Defendant, in place of the
second AAG, who simultaneously withdrew. (Docket Entries 27, 28.)
3
Plaintiff’s filing as to that issue lists Attorneys Largess,
Holtkamp, and Winston as his counsel. (Docket Entry 19 at 5-6.)
3
2) “[r]eports from retained experts under [Federal] Rule [of
Civil Procedure] 26(a)(2) are due . . . [f]rom Plaintiff by
September 17, 2012 . . . [and] [f]rom Defendant by October 30,
2012” (id. (internal colon omitted));
3) “[m]ediation should be conducted between November 1, 2012
and November 9, 2012, the exact date to be set by the mediator
after consultation with the parties” (id.); and
4) Defendant “shall be allowed until October 1, 2012 to
request leave to . . . amend pleadings” (id. at 3).4
The Court promptly adopted the foregoing agreed-upon deadlines
as part of the Scheduling Order.
(Text Order dated May 31, 2012;
Mediation Scheduling Order dated June 4, 2012; see also Docket
Entry 25 (appointing mediator).)
A short time later, the Clerk
noticed the case for trial on July 1, 2013.
Subsequently,
according
to
Defendant,
(Docket Entry 26.)
“[o]n
15
August
2012
Defendant served . . . discovery [that] was timed to coincide with
the
expert
disclosure
date
of
17
September
2012
[and
that
requested,] . . . ‘[p]ursuant to Rule 26(a)(2)(B) of the Federal
Rules of Civil Procedure, all written reports of each person you
expect to call as an expert witness in the trial of this cause.’”
(Docket Entry 34 at 4.)
Plaintiff does not dispute this fact (see
4
Said Joint Report notes that Attorneys Largess and Holtkamp
participated in the conference resulting in the parties’ agreement
on these points (Docket Entry 24 at 1) and identifies Attorneys
Largess, Holtkamp, and Winston as counsel for Plaintiff (id. at 4).
4
Docket Entry 36) and an e-mail dated September 5, 2012, from AAG
Requlski to Attorney Holtkamp (with a courtesy copy to Attorney
Largess) indicates that, the preceding day, Attorney Holtkamp left
AAG Regulski a voice-mail seeking his consent to a 30-day extension
of time to respond to those discovery requests and that, via said
e-mail, AAG Regulski so consented.
(Docket Entry 34-3 at 2.)
On October 1, 2012, Defendant filed his instant Motion to
Amend Answer, “pursuant to Rule 15(a)(2) of the Federal Rules of
Civil Procedure,” in which, as “support” therefore, he states:
1. Pursuant to Fed. R. Civ. P. 26(f) and LR16.1(b), a
Joint Rule 26(f) Report was filed in this matter on May
21, 2012.
2. Pursuant to section 5(b) of the Report, “Defendants
shall be allowed until October 1, 2012 to request leave
to join additional parties or amend pleadings.”
3. Defendant requests leave to amend his Answer to
further plead as an Affirmative Defense the Doctrine of
Sudden Emergency.
4. Copies of Defendant’s proposed Amended Answer and
Order Granting Leave to Amend are attached hereto. The
attached proposed Amended Answer is undated, and should
leave be granted, Defendant will file a dated and signed
Amended Answer.
(Docket Entry 29 at 1.)5
5
Thereafter, Plaintiff responded in
The language Defendant proposed to add appears as follows:
On 3 August 2008 Plaintiff’s decedent set fire to the
mattress in his cell, which mandated the rapid evacuation
of [Plaintiff’s decedent] and his entire cellblock.
Plaintiff’s decedent’s setting of the fire triggered
Defendant[’s] duty to extinguish the fire and rapidly
evacuate the cellblock. As a direct and proximate result
5
opposition (Docket Entry 30)6 and Defendant replied (Docket Entry
31).
In the midst of that briefing, on October 17, 2012, Plaintiff,
via Attorney Holtkamp (see Docket Entry 34-4 at 15), responded to
Defendant’s discovery requests and, as to the request, “[p]ursuant
to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, [for]
all written reports of each person [Plaintiff] expect[s] to call as
an expert witness in the trial of this cause” (id. at 13), objected
and stated that “Plaintiff will provide this information upon the
entry of a scheduling order” (id.).
By letter dated October 30,
2012, addressed to Attorneys Largess, Holtkamp, and Winston, AAG
Regulski called attention, inter alia, to the failure of Plaintiff
to serve expert reports by the Scheduling Order deadline and
Defendant’s right to oppose any effort by Plaintiff to seek leave
of court to serve them belatedly.
(Docket Entry 34-5 at 3; see
also Docket Entry 34-6 at 2 (e-mail exchange indicating that, in
addition to mailing the foregoing letter to Attorneys Largess,
Holtkamp, and Winston on October 30, 2012, AAG Regulski e-mailed it
of Plaintiff’s decedent’s actions, Defendant [], through
no fault of his own, was suddenly and unexpectedly
confronted with imminent danger to himself and others.
Defendant [] pleads the doctrine of sudden emergency as
an affirmative defense.
(Docket Entry 29-1 at 13.)
6
Said Response lists Attorneys Largess, Holtkamp, and Winston
as Plaintiff’s counsel. (Docket Entry 30 at 2.)
6
to them on October 31, 2012, as well as that Attorney Holtkamp
received said letter); Docket Entry 34-7 at 2-3 (e-mail exchange
indicating that, in addition to mailing the foregoing letter to
Attorneys Largess, Holtkamp, and Winston on October 30, 2012, AAG
Regulski e-mailed it to them on October 31, 2012, as well as that
Attorney Largess received said letter).)
By e-mail on Friday, November 16, 2012, Attorney Holtkamp
addressed another aspect of AAG Regulski’s foregoing letter, but
did not mention expert reports.
(See Docket Entry 34-6 at 2.)
Late that same day, Attorney Largess sent an e-mail to AAG Regulski
with these comments:
“Thanks for the letter, [AAG Regulski].
You
bring up lots of issues we need to address to get this case on
track.
Are you still around today to discuss briefly or will you
be in on Monday?”
(Docket Entry 34-7 at 2.)
AAG Regulski
responded to Attorney Largess the next day with proposed times for
them to talk the following Monday and Tuesday.
(Id.)
Later that
afternoon, Attorney Largess replied to AAG Regulski as follows:
Thanks for your note. I should be in by 7:30 on both
Monday and Tuesday. I mentioned some of the following in
a phone message I left late Friday.
My wife got very sick in August with the West Nile virus
and had to be hospitalized and then convalesce at home
once she got out of the really critical stage. For about
six weeks, my attention was completely diverted by her
health and a huge logjam developed at work. I let these
expert deadlines in this case pass - as you noted in your
letter. She is finally getting better and hopes to go
back to work in January, but remains on disability leave.
7
I recall at the beginning of this case that you, [AAG
Regulski], had some health problems and we gave you a
fair [sic] to file the answer due to your difficulties.
I am asking that you return that favor for me and we do
the following to reset the discovery schedule in the
case.
1.
2.
3.
We will name our experts by Dec 3.
You
can
name
yours
six
weeks
later,
mid-January.
We finish all discovery by the end of Feb,
instead of the middle of January - and we
mediate in February.
This will depend on the court agreeing to the proposal.
Why don’t you discuss among yourselves on Monday and we
can talk early Tuesday - maybe at 7:30 or 8:00.
Thanks for your consideration.
(Id.)
“On 20 November 2012, Defendant rejected the [above-quoted]
proposal.”
(Docket Entry 34 at 6; see also Docket Entry 32 at 3
(stating in filing dated November 26, 2012:
“Defendant’s counsel
pondered the request and then replied last week that they could not
consent.
Though [Defendant’s counsel] might wish to do so as a
matter of professional courtesy, [Defendant’s] counsel believed it
would be prejudicial to its client.”).)
Plaintiff filed the
instant Motion to Amend Discovery Schedule on November 26, 2012.
(Docket Entry 32.)7
Defendant then responded in opposition (Docket
7
Said Motion identifies Attorneys Largess, Holtkamp, and
Winston as counsel for Plaintiff. (Docket Entry 32 at 4.)
8
Entry 34) and Plaintiff replied (Docket Entry 36).8
DISCUSSION
Defendant’s Motion to Amend Answer
Via his instant Motion, “Defendant requests leave to amend his
Answer to further plead as an Affirmative Defense the Doctrine of
Sudden Emergency.”
(Docket Entry 29 at 1.)
“A party may amend its
[answer] once as a matter of course within . . . 21 days after
serving it . . . .”
Fed. R. Civ. P. 15(a)(1) (emphasis added).
Defendant apparently recognized that his proposed addition of a new
affirmative defense came too late to occur as a matter of course,
because he moved pursuant to the alternative provision, “Rule
15(a)(2) of the Federal Rules of Civil Procedure” (Docket Entry 29
at 1), under which “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave,” Fed. R.
Civ. P. 15(a)(2).
(Docket Entry 29 at 1.)
Defendant did not claim
to have received written consent from Plaintiff (see id.) and, with
his
response
in
opposition
to
the
instant
Motion,
Plaintiff
confirmed his denial of consent (see Docket Entry 32).
Regarding the securing of leave from the Court, the applicable
Federal Rule of Civil Procedure states that “[t]he [C]ourt should
freely give leave when justice so requires.”
15(a)(2).
Fed. R. Civ. P.
Defendant thus has the burden of showing that the
8
Plaintiff’s above-cited Reply lists Attorneys Largess,
Holtkamp, and Winston as his counsel. (Docket Entry 36 at 14.)
9
interest of justice warrants his proposed amendment; moreover,
under
this
Court’s
Local
Rules,
although
Defendant
had
no
obligation to file a brief supporting his instant Motion, such
motions “must state good cause therefor and cite any applicable
rule, statute, or other authority justifying the relief sought.”
M.D.N.C. LR7.3(j).
As documented in the Background section,
Defendant’s instant Motion offers no showing of any, much less
good, cause for his proposal and includes no argument or authority
regarding even the existence, let alone applicability to this case,
of the affirmative defense he seeks to add.
(See Docket Entry 29.)
After Plaintiff pointed out this deficiency (see Docket Entry
30 at 1), Defendant, in reply, observed that, via the parties’
joint report regarding scheduling adopted by the Court, he “was
allowed until [the date he filed the instant Motion] to seek leave
to file an amended answer . . . [and stated that,] [b]ecause the
parties had agreed in advance to th[at] time schedule and because
[he] proposed only to add an additional affirmative defense borne
of the facts alleged in the Complaint, [he] treated the proposed
amendment as a matter of course” (Docket Entry 31 at 1-2 (emphasis
added)). This contention cannot withstand scrutiny, given that the
Federal Rules of Civil Procedure expressly restrict amendment “as
a matter of course” to other circumstances, that Defendant did not
obtain written consent for the amendment from Plaintiff, and that
(by his own acknowledgment) the Scheduling Order merely permitted
10
the seeking of leave by the date in question, without altering the
requirements for the securing of such leave.
With his Reply, Defendant also, for the first time, offered
arguments and authority regarding the purported legitimacy and
applicability of his proposed new affirmative defense. (See id. at
3-5.)
Members of this Court, however, have consistently held that
“[r]eply briefs . . . may not inject new grounds . . . [and that
an] argument [that] was not contained in the main brief . . . is
not before the Court.”
Triad Int’l Maint. Corp. v. Aim Aviation,
Inc., 473 F. Supp. 2d 666, 670 n.1 (M.D.N.C. 2006) (citing M.D.N.C.
LR7.3(h)) (recommendation of Eliason, M.J., adopted by Beaty, J.);
accord, e.g., Jarvis v. Stewart, No. 1:04CV642, 2005 WL 3088589, at
*1 (M.D.N.C. Nov. 17, 2005) (unpublished) (Osteen, Sr., J.) (“[I]t
is not appropriate to present such new argument in a reply.”
(citing M.D.N.C. LR7.3(h))).
The Court will adhere to this view.
Under these circumstances, the Court will deny Defendant’s
Motion to Amend Answer.9
9
For reasons stated in Deberry v. Davis, No. 1:08CV582, 2010
WL 1610430, at *7 n. 8 (M.D.N.C. Apr. 19, 2010) (unpublished), the
undersigned United States Magistrate Judge will enter an order,
rather than a recommendation, regarding this Motion. See also
Everett v. Prison Health Servs., 412 F. App’x 604, 605 & n. 2 (4th
Cir. 2011) (“Everett moved for leave to amend her complaint . . .
to add . . . a defendant based on information obtained during
discovery, and to add a state-law claim of medical malpractice
against [that new defendant].
After a hearing, the magistrate
judge denied Everett’s motion. Everett timely objected, thereby
preserving the issue for review by the district court. . . . [T]he
district court could not modify or set aside any portion of the
11
Plaintiff’s Motion to Amend Discovery Schedule
The Federal Rules of Civil Procedure require the issuance of
a scheduling order in each case.
See Fed. R. Civ. P. 16(b)(2).
As
detailed in the Background section, the parties here (through the
active participation of Attorneys Largess and Holtkamp) proposed
and the Court (with notice to Attorneys Largess, Holtkamp, and
Winston) adopted a scheduling order that set a discovery deadline
of January 13, 2013, deadlines of September 17 and October 30,
2012, for service of expert reports by Plaintiff and Defendant,
respectively,
(Docket
and
Entry
24;
a
mediation
Text
Order
deadline
dated
Scheduling Order dated June 4, 2012.)
of
May
November
31,
2012;
9,
2012.
Mediation
Plaintiff’s instant Motion
seeks to alter these dates “due to exigent personal circumstances
. . . [of Attorney] Largess.”
(Docket Entry 32 at 1.)
In general, “[a] schedule may be modified only for good cause
and with the judge’s consent.”
Fed. R. Civ. P. 16(b)(4) (emphasis
added). “[T]he touchstone of ‘good cause’ under [Federal] Rule [of
Civil Procedure] 16(b) is diligence.” Marcum v. Zimmer, 163 F.R.D.
250, 255 (S.D.W. Va. 1995) (emphasis added); see also Fed. R. Civ.
P.
16
advisory
committee’s
note,
1983
Amendment,
Discussion,
Subdivision (b) (“[T]he court may modify the schedule on a showing
magistrate judge’s order unless the magistrate judge’s decision was
‘clearly erroneous or contrary to law.’ Fed. R. Civ. P. 72(a); 28
U.S.C.A. § 636(b)(1)(A) (2006 & Supp. 2010).”).
12
of good cause if it cannot reasonably be met despite the diligence
of
the
party
seeking
the
extension.”);
M.D.N.C.
LR26.1(d)
(providing that motions seeking to extend 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”). Plaintiff, however, has identified
nothing which would support a finding that he acted with diligence
regarding the service of expert reports.
To the contrary, the record (as shown in the Background
section) reflects that, on October 17, 2012, Plaintiff (through
Attorney Holtkamp) refused to provide expert reports to Defendant
based on the frivolous assertion that the Court had not entered a
scheduling order (Docket Entry 34-4 at 13, 15), when (in fact)
Attorney Holtkamp negotiated the agreement to set September 17,
2012, as the deadline for serving Plaintiff’s expert reports
(Docket Entry 24 at 1, 2) and received notice of the Court’s
adoption of
Further,
(as
that
the
agreement (Text
Background
Order dated May
section
details)
even
31,
2012).
after
AAG
Regulski directly informed Attorneys Largess, Holtkamp, and Winston
(via letter mailed October 30, 2012, and e-mailed October 31, 2012)
that Plaintiff had not timely served expert reports (Docket Entry
34-5 at 3; Docket Entry 34-6 at 2; Docket Entry 34-7 at 2-3), they
did nothing for more than two weeks, until at last, via telephone
and e-mail on November 16 and 17, 2012, Attorney Largess sought
13
Defendant’s consent to a post-hoc extension of the expert report
deadline, as well as a related extension of the overall discovery
deadline (Docket Entry 34-7 at 2).
Finally, Plaintiff waited
almost another week after learning that Defendant would not agree
to the proposed extension before filing the instant Motion.
Docket Entry 32 at 3, 4; Docket Entry 34 at 6.)
(See
Such conduct does
not constitute diligence of the sort required to satisfy Federal
Rule of Civil Procedure 16(b)(4)’s “good cause” standard.10
10
The Court rejects Plaintiff’s attempt to secure relief by
asserting that Attorney Holtkamp “has limited experience in federal
court . . . [and] did not enter the schedule in her calendar simply
because she was accustomed to working from a paper order” (Docket
Entry 36 at 5). First, “‘carelessness is not compatible with a
finding of diligence and offers no reason for a grant of relief.’”
Marcum, 163 F.R.D. at 254 (quoting Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992) (ellipses and emphasis
omitted)); accord, e.g., 3 James Wm. Moore et al., Moore’s Fed.
Prac. — Civil § 16.14 [b] (3d. 2009).
Second, inexperience in
federal court or unfamiliarity with electronic orders does not
explain why Attorney Holtkamp, along with Attorneys Largess and
Winston, waited a half-month to respond when Defendant raised
Plaintiff’s failure to serve expert reports. Third, at all times,
Attorneys Largess and Winston had notice of the operative deadline,
but failed to act. In that regard, the Court concludes Attorney
Largess’s inability to work during his wife’s hospitalization and
early at-home convalescence does not insulate him from all
responsibility for Plaintiff’s total disregard of the expert report
deadline. At a minimum, Attorney Largess should have asked his cocounsel to seek a timely extension.
In addition, by Attorney
Largess’s own account, his wife fell ill in August 2012 and he “was
out of the office for about one month and then worked on a reduced
schedule for an additional period of time.” (Docket Entry 32 at
2.) Affording Attorney Largess every favorable inference, he thus
had resumed work (at least part-time) by October 1, 2012, and
should have taken steps to address this situation well before
November 16 and 17, 2012. Finally, the Court cannot accept the
suggestion that Attorney Winston lacks accountability.
As
documented throughout the Background section, Plaintiff’s filings
14
Additionally, because Plaintiff did not file the instant
Motion until after the deadline for serving his expert reports had
passed, he also must establish “excusable neglect.”
Fed. R. Civ.
P. 6(b) (“When an act may or must be done within a specified time,
the court may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because of
excusable
neglect.”).
“‘Excusable
neglect’
demonstrated, nor was it intended to be.”
is
not
easily
Thompson v. E.I. DePont
Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996).
The Court’s
review of controlling authority and the record confirms that
Plaintiff has not made the requisite showing.
The
United
States
Supreme
Court
has
explained
that
the
excusable neglect inquiry “is at bottom an equitable one, taking
account of all relevant circumstances surrounding the party’s
omission.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 395 (1993).
“These include . . . [1] the
danger of prejudice to the [opposing party], [2] the length of the
delay and [3] its potential impact on judicial proceedings, [4] the
reason
for
the
delay,
including
whether
it
was
within
the
reasonable control of the movant, and [5] whether the movant acted
in this Court consistently list Attorney Winston as counsel of
record. (See, e.g., Docket Entry 19 at 6; Docket Entry 32 at 4.)
Moreover, although Plaintiff asserted more than three weeks ago
that Attorney Winston “will be removed from the pleadings” (Docket
Entry 36 at 6), the record reflects no motion to withdraw to date
(see Docket Entries dated Dec. 10, 2012, to present).
15
in good faith.”
Id. (emphasis added).11
Considering those factors
in the context of this case, the Court first observes that granting
Plaintiff’s requested relief would require a significant extension
of
the
discovery
period and
thus would
jeopardize
the
long-
scheduled trial date (or, at a minimum, would deprive the Court of
a reasonable amount of time to assess any dispositive motions
before such date).
These consequences portend possible serious
prejudice to Plaintiff’s interest in maintaining an agreed-upon and
judicially-sanctioned end-point for this case, as well as an
adverse impact on the Court’s proceedings. Moreover, (as discussed
above) Plaintiff missed the deadline for serving expert reports by
more than two months, a delay of unreasonable length under the
circumstances, particularly given the absence of an acceptable
reason for such delay and the fact that some of Plaintiff’s conduct
(such as the frivolous refusal to provide expert reports based on
the claimed absence of a scheduling order) indicate a possible lack
of good faith.
On balance, the Pioneer factors thus demonstrably
11
The fourth of the above-quoted Pioneer factors carries the
most significance. See Thompson, 76 F.3d at 534. Moreover, in
reviewing that and the other factors, courts must not focus only on
the actions (or inaction) of the party, but also “on whether [that
party’s] attorney, as [the party’s] agent, did all he reasonably
could to comply with the [deadline].” Pioneer, 507 U.S. at 396;
see also id. at 396-97 (taking note of prior decisions, “[i]n other
contexts, . . . [holding] that clients must be held accountable for
the acts and omissions of their attorneys” in declaring that, “in
determining whether [a party’s] failure to [meet a deadline] was
excusable, the proper focus is upon whether the neglect of [the
party] and [the party’s] counsel was excusable”).
16
tilt against a finding of excusable neglect.12
Plaintiff’s invocation of Defendant’s receipt of extensions of
time to file an answer (see Docket Entry 32 at 1; Docket Entry 36
at 3) does not alter the foregoing conclusions.
First, unlike
Plaintiff here, Defendant sought such extensions prior to, not
after, the passage of the applicable deadline. (See Docket Entries
12
Any lack of familiarity with federal court or electronic
orders on Attorney Holtkamp’s part does not establish excusable
neglect. See Pioneer, 507 U.S. at 392 (“[I]nadvertence, ignorance
of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect . . . .”); Thompson, 76 F.3d at 535
(ruling that “run-of-the-mill inattentiveness by counsel” does not
qualify as excusable neglect).
Moreover, Attorneys Largess and
Winston also knew about the relevant deadline, but failed to act
before it expired (as well as afterwards and even for weeks after
AAG Regulski confronted them about the matter). Attorney Largess’s
absence from work during his wife’s acute illness similarly
provides no basis for a finding of excusable neglect under the
circumstances of this case. According to Attorney Largess, after
his wife fell ill in August 2012, he “was out of the office for
about one month and then worked on a reduced schedule for an
additional period of time.” (Docket Entry 32 at 2.) Attorneys
Holtkamp and Winston had an obligation to meet deadlines during
Attorney Largess’s temporary unavailability and Attorney Largess
should have asked them to file a timely extension request.
Further, Attorney Largess returned to his office no later than
October 1, 2012, and had a duty to begin dealing with the expert
report issue long before he finally did on November 16 and 17,
2012, even if his absence from work negatively affected his
caseload. See Pioneer, 507 U.S. at 398 (ruling that, in assessing
“reason for delay,” courts should “give little weight to the fact
that counsel was experiencing upheaval in his law practice”). Nor
will the Court countenance the suggestion that Attorney Winston
lacks responsibility.
As shown in the Background section, the
record confirms that Plaintiff’s filings uniformly identify
Attorney Winston as counsel of record. (See, e.g., Docket Entry 19
at 6; Docket Entry 32 at 4.)
Indeed, despite Plaintiff’s
representation weeks ago that Attorney Winston “will be removed
from the pleadings” (Docket Entry 36 at 6), he has not moved to
withdraw (see Docket Entries dated Dec. 10, 2012, to present).
17
1, 4, 10, 11.)
Second, whereas the requests by Defendant for more
time to answer came at the inception of the case, before adoption
of case-management deadlines, Plaintiff’s instant Motion implicates
the Scheduling Order to which he agreed and which the Court
adopted.
Accordingly, entirely different legal standards govern
the availability of relief in the two contexts.
See Fed. R. Civ.
P. 6(b) (requiring additional showing of “excusable neglect” by
litigants making tardy extension requests); Fed. R. Civ. P. 16
advisory committee’s note, 1983 Amendment, Discussion, Subdivision
(b) (explaining that “good cause” standard for modification of
scheduling orders under Federal Rule of Civil Procedure 16(b)(4)
imposes diligence test); see also Ahanchian v. Xenon Pictures,
Inc., 624 F.3d 1253, 1259 (9th Cir. 2010) (ruling that, under
Federal Rule of Civil Procedure 6(b), “requests for extensions of
time
made
before
the
applicable
deadline
has
passed
should
‘normally be granted in the absence of bad faith on the part of the
party seeking relief or prejudice to the adverse party’” (internal
ellipses omitted) (quoting 4B Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1165 (3d ed. 2004)));
Thompson, 76 F.3d at 534 (“‘Excusable neglect’ is not easily
demonstrated, nor was it intended to be.”); Forstmann v. Culp, 114
F.R.D. 83, 85 (M.D.N.C. 1987) (Gordon, S.J.) (rejecting notion that
scheduling orders “can be cavalierly disregarded by counsel without
18
peril” (internal quotation marks omitted)).13
In sum, because Plaintiff has failed to show “good cause”
under Federal Rule of Civil Procedure 16(b)(4) and “excusable
neglect” under Federal Rule of Civil Procedure 6(b), the Court will
not
modify
the
deadlines
completion of discovery.
interest
in
seeing
for
service
of
expert
reports
or
The Court, however, has an independent
that
the
parties
conduct
mediation
notwithstanding their mutual failure to do so by the deadline to
which they agreed and which the Court adopted. See M.D.N.C. LR16.4
(mandating mediation for cases of this sort and requiring showing
of good cause to obtain exemption).
The Court thus will set a new
deadline for mediation.
Continued Sealing of the Complaint and Related Documents
Upon removal, the Court permitted the filing of certain
exhibits (Docket Entry 3), the Complaint (Docket Entry 5), and the
Summons (Docket Entry 6) “under seal subject to this Court’s
13
Significant factual distinctions also exist between the
circumstances that led Defendant to seek a timely extension of the
answer deadline based on the ill health of AAG Regulski and
Plaintiff’s effort to secure an untimely extension of discovery
deadlines based on the ill health of Attorney Largess’s wife. Most
notably, AAG Regulski acted as sole counsel of record for Defendant
at the time of his own health crisis (see Docket Entries 11, 13,
27), whereas Attorney Largess served as but one of three counsel of
record at the time of his wife’s health crisis (see Docket Entries
19, 24, 30, 32).
Moreover, disregarding those distinctions,
Plaintiff has not explained why Defendant’s receipt of relief on a
timely-filed extension request should entitle Plaintiff to relief
when he failed to file a timely extension request under comparable
circumstances. (See Docket Entries 32, 36.)
19
determination of whether the protective order entered in [a related
case before the NCIC] is authoritative herein, whether its terms
ought to be adopted herein, or whether a new protective order ought
to be entered.”
(Docket Entry 9 at 1.)
The Court now will require
the parties to show cause to warrant the maintenance of said
filings under seal.
In addressing this matter, the parties shall
direct their attention to the standards for sealing set by the
United States Court of Appeals for the Fourth Circuit.
See
generally Virginia Dep’t of State Police v. Washington Post, 386
F.3d 567, 575-77 (4th Cir. 2004).
CONCLUSION
Defendant’s Motion to Amend Answer fails to offer any basis
for the Court to find that the interest of justice warrants the
requested
amendment.
Further,
the
Court
will
not
consider
arguments raised in reply, which Defendant should have offered with
said
Motion
itself.
For
his
part,
Plaintiff
has
failed
to
establish good cause and excusable neglect so as to permit the
Court to allow his untimely request to alter discovery deadlines.
The Court, however, will require the parties to conduct mediation
despite their failure (for which they bear mutual responsibility)
to do so by the date to which they agreed (and which the Court
adopted).
Finally, the parties must show cause to justify the
continued sealing of the Complaint and related documents.
IT IS THEREFORE ORDERED that Defendant’s Motion to Amend
20
Answer (Docket Entry 29) is DENIED.
IT
IS
FURTHER
ORDERED
that
Plaintiff’s
Motion
to
Amend
Discovery Schedule (Docket Entry 32) is DENIED, except as to
mediation, which the parties shall conduct by February 15, 2013.
IT IS FURTHER ORDERED that, on or before January 18, 2013, the
parties shall file a joint report setting out their shared or
respective views on whether and, if so, why certain exhibits
(Docket Entry 3), the Complaint (Docket Entry 5), and the Summons
(Docket Entry 6) should remain under seal.
This the 7th day of January, 2013.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
21
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