PREMIUM PAYMENT PLAN v. SHANNON CAB CO.

Filing 79

MEMORANDUM ORDER THAT ACCORDINGLY, JUDGE ANGELL'S ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL IS VACATED, WITHOUT PREJUDICE TO PALINTIFF'S ENTITLEMENT, ON REMAND, TO RENEW ITS MOTION TO COMPEL IN CONJUNCTION WITH A MOTION TO EXTEND THE PERIOD FOR DISCOVERY IN ACCORDNCE WITH RULE 6. SIGNED BY HONORABLE LOUIS H. POLLAK ON 12/21/2010. 12/22/2010 ENTERED AND COPIES MAILED AND E-MAILED.(sg, )

PREMIUM PAYMENT PLAN v. SHANNON CAB CO.

Doc. 79

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

P R E M IU M PAYMENT PLAN, P la in tif f , v. S H A N N O N CAB CO. T/A GOLDEN L IM O SERVICES A/T/A LUXURY L IM O , D e f e n d a n t.

C iv il Action No. 04-4669

M E M O R A N D U M ORDER D e c e m b e r 21, 2010 Pollak, J.

A s I have explained at greater length in a prior opinion dated June 16, 2010, see D o c k e t No. 69, the plaintiff in this diversity case, Premium Payment Plan, has brought a b re a c h of contract case claiming that it was contractually authorized by defendant S h a n n o n Cab to purchase insurance and that after insurance was purchased and financed b y plaintiff, Shannon Cab did not make payments on the insurance. Plaintiff further a lle g e s that defendant's attorney, Willan Franklyn Joseph ("Joseph"), ratified the contract b y making claims against the insurance policy. Before the court now is an appeal by d e f e n d a n t from an order by Magistrate Judge M. Faith Angell granting plaintiff's motion to compel the production of certain documents. Docket No. 75. For the reasons stated

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below, I vacate the order. In my June 16 opinion, I affirmed in part and denied in part a previous discovery o rd e r. Docket No. 69. In that order, I upheld the portion of Judge Angell's order p e rm ittin g plaintiff to depose defense counsel Joseph, based on evidence that emerged d u rin g discovery that Joseph provided Genoveva Valle ("Valle"), the president and sole s h a re h o ld e r of the defendant, non-legal assistance with her day-to-day business tra n s a c tio n s with her insurance broker, Michael Gardner. Thereafter, in a letter dated July 6 , 2010, plaintiff's counsel Gerald W. Spivack ("Spivack") wrote to Joseph requesting " c o p ie s of any and all documents and/or files pertaining to" five insurance claimants id e n tif ie d by name and claim number, as well as "any and all documentation relating to p a ym e n ts made by your office on behalf of Shannon Cab Co." Docket No. 76-1. Spivack's letter further stated that once he "had an opportunity to review these documents I will immediately schedule your deposition for a mutually agreeable time." Id. On A u g u s t 9, 2010, Spivack faxed a follow-up letter to Joseph noting that he had not yet re c e iv e d a response to his July 6 letter and indicating that he would file a motion to c o m p e l if he did not receive a response within ten days. Docket No. 77-2. That same day, J o s e p h replied to Spivack's July 6 letter, objecting to the request for documents as u n tim e ly. Plaintiff then brought a motion to compel production of the documents, which d e f e n d a n t opposed. Docket Nos. 71­74. Judge Angell granted the motion to compel on O c to b e r 7, 2010. Docket No. 75. Defendant now appeals Judge Angell's decision on

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several grounds. Docket No. 76. A magistrate judge's adjudication of a non-dispositive motion will be set aside o n ly if it is found to be "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); a c c o r d Fed. R. Civ. P. 72(a). First, defendant argues that plaintiff did not try, as required by Local Rule 26(f), to re s o lv e the discovery dispute before filing the motion to compel. See Local Rule 26(f) (" N o motion or other application pursuant to the Federal Rules of Civil Procedure g o v e rn in g discovery or pursuant to this rule shall be made unless it contains a c e rtif ic a tio n of counsel that the parties, after reasonable effort, are unable to resolve the d is p u te ." ). This court has previously found that counsel for a party failed to comply with L o c a l Rule 26(f) when: counsel's only efforts to resolve this dispute prior to presenting it to the c o u rt took the form of the letter which originally requested the depositions f o llo w e d by a series of telephone conversations between the secretaries of th e attorneys involved in the action. There have apparently been no direct c o m m u n ic a tio n s between counsel. C ro w n Cork & Seal Co. v. Chemed Corp., 101 F.R.D. 105, 106 (E.D. Pa. 1984) (Pollak, J .). Here, by contrast, there were direct communications between counsel, and in those c o m m u n ic a tio n s defense counsel specifically objected to the plaintiff's document request a s untimely because the request was made after the close of discovery. By expressing this o b je c tio n , defendant indicated that it was unlikely to change its position and produce the re q u e s te d documents to plaintiff. (And indeed, defendant continues to press this very

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objection in this appeal.) Under these circumstances, plaintiff was not required to c o n tin u e attempting to resolve the dispute prior to filing a motion to compel. D e f e n d a n t's second argument is more meritorious. Defendant argues that plaintiff f a ile d to file a motion for an extension of time in accordance with Fed. R. Civ. P. 6(b), w h ic h requires a party seeking an extension after the time has expired to file a motion d e m o n s tra tin g that it failed to act because of excusable neglect. Rule 6(b) imposes "a s tric t requirement that litigants file formal motions for Rule 6(b) time-extensions when a tte m p tin g to file in contravention of a scheduling order." Drippe v. Tobelinski, 604 F.3d 7 7 8 , 784 (3d Cir. 2010) (citing Smith v. District of Columbia, 430 F.3d 450, 456 (D.C. C ir. 2005)). The Third Circuit has recently emphasized that "a party must make a formal m o tio n for extension of time and the district court must make a finding of excusable n e g le c t . . . , before permitting an untimely motion." Id. at 785. The requirements of Rule 6(b) are to be observed. On April 30, 2009, Judge A n g e ll issued an order requiring all remaining fact-based discovery to be completed by J u n e 1, 2009. Since that time, no subsequent order extending discovery has been re q u e s te d or granted. Plaintiff's current motion was styled as a motion to compel, not as a motion to extend the time for discovery, and the motion and Judge Angell's order make n o mention of excusable neglect. Accordingly, Judge Angell's order granting plaintiff's motion to compel is V A C A T E D , without prejudice to plaintiff's entitlement, on remand, to renew its motion

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to compel in conjunction with a motion to extend the period for discovery in accordance w ith Rule 6.

BY THE COURT:

/s/ LHP Pollak, J.

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