FEDERAL TRADE COMMISSION v. INNOVATIVE DESIGNS, INC.

Filing 52

MEMORANDUM ORDER indicating that that, for good cause shown and given the equities outlined above, Defendant's Motion to Extend the Discovery Deadline 44 is granted, in part, and denied, in part. Fact discovery is hereby extended until 11/3/ 17; that the Court will hold a Telephonic Status Conference with the parties on 10/2/17 at 4:30 p.m.; that the Court will hold a Telephonic Post Fact Discovery Status Conference on 11/20/17 at 4:00 p.m., at which time the Court will hear from the parties on, inter alia, their remaining needs relating to expert discovery, and will set an expert discovery schedule. Signed by Judge Nora Barry Fischer on 9/28/17. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FEDERAL TRADE COMMISSION,
Plaintiff,
v.
INNOVATIVE DESIGNS, INC.,
Defendant.

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2:16-cv-01669-NBF
District Judge Nora Barry Fischer

MEMORANDUM ORDER
Presently pending before the Court is Defendant Innovate Designs, Inc.’s (“Defendant”)
Motion to Extend the Discovery Deadline. (Docket No. 44). As stated in the Case Management
Order entered on December 22, 2016, fact discovery was to be completed by September 19,
2017. (Docket No. 13). In its motion, Defendant requests that the Court extend the discovery
deadline 120 days.1

Plaintiff Federal Trade Commission (“FTC”) objects to Defendant’s

requested extension, asserting that the motion is not supported by good cause. (Docket No. 48).
The Court convened a telephonic conference with the parties on September 8, 2017, at which
time the Court heard arguments from counsel for both parties relative to their respective
positions on this motion. (Docket No. 49). After consideration of the parties’ written filings, as
well as their stated positions during the telephonic arguments, the motion will be granted, in part
and denied, in part.
At the outset, the Court notes the parties have been operating under the mistaken
assumption that the Court combined fact discovery and expert discovery in this case. The Court
acknowledges that the confusion stems from the Hearing Memo entered in connection with the
Case Management Conference, which indicates that the parties contemplated engaging in fact
The Court notes that the date selected by IDI in its Proposed Order – January 19, 2018 – is
actually 122 days from the September 19, 2017 deadline. See (Docket No. 44).
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and expert discovery as to some specific witnesses and other limited issues. See (Docket No. 12)
(“In terms of discovery, the parties indicated that they do not wish to bifurcate fact and expert
discovery (with respect to David Yarbough, Robert Manni, and their labs).”). But contrary to
what the FTC asserted during the telephonic argument on September 8, 2017, the Court
concludes that the Hearing Memo did not mandate that all fact discovery and expert discovery be
conducted together.
Moreover, discovery in this case is not based on the Hearing Memo but instead is
governed by the Case Management Order. Fed. R. Civ. P. 16; LCvR 16.B. See also Rorrer v.
Cleveland Steel Container, 564 Fed. App’x 642, 645 (3d Cir. 2014) (“Rules 16(a) through (e) of
the Federal Rules of Civil Procedure set out standards governing pretrial conferences, scheduling
orders, and general case management.”). In this regard, the Court notes that it has “the inherent
authority to manage [its] dockets . . . with a view toward the efficient and expedient resolution of
cases,” Dietz v. Bouldin, __ U.S. __, 136 S. Ct. 1885, 1893 (2016), and is entitled to great
deference when interpreting its own orders. See In re Asbestos Prod. Liab. Litig. (No. VI), 718
F.3d 236, 243-45 (3d Cir. 2013).
After reviewing the Case Management Order, the Court concludes that expert discovery
has not yet been scheduled in this case. On its face, the Case Management Order only pertains to
fact discovery and contains no provision relating to expert discovery.

This is consistent with

how the Court ordinarily manages civil cases on its docket. Accordingly, regardless of the
statement in the Hearing Memo indicating that the parties intended to combine fact and expert
discovery as to some specific witnesses and issues, it was the Court’s intention in this case to
schedule only fact discovery in the Case Management Order, and then, if necessary, set an expert
discovery schedule consistent with the parties’ need for same at the subsequent Telephonic Post

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Fact Discovery Status Conference.

Thus, to the extent that Defendant’s motion seeks an

extension of time to complete expert discovery, such request is denied, without prejudice, as
premature.
The Court now turns to whether Defendant is entitled to its requested extension of 120
days to complete fact discovery. Under Rule 16, a scheduling order “may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Defendant, as the moving
party, bears the burden of demonstrating good cause for extending the discovery deadline in the
Case Management Order. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84
(3d Cir. 2010). In this context, good cause is established if the moving party has acted diligently
under the circumstances. Graham v. Progressive Direct Ins. Co., 271 F.R.D. 112, 119 (W.D. Pa.
2010).
Defendant’s motion contains a detailed, four-page list that summarizes the discovery that
the parties have completed in the case to date. (Docket No. 44 at ¶¶ 11a-pp). It also lists four
depositions scheduled to occur prior to the expiration of the discovery deadline, as well as a list
of discovery that still needs to be completed. (Id. at ¶¶ 12-13).2 According to Defendant, good
cause exists to extend the discovery deadline because its counsel, who is a sole practitioner with
far less resources than the FTC, has spent hundreds of hours in this case responding to discovery
requests and reviewing tens of thousands of documents, e-mails, and reports produced in the
FTC’s investigation and discovery in this case. In addition, Defendant asserts that the parties
encountered unforeseen technical difficulties with regard to the electronic production of e-mails,
which required technical assistance and resulted in a delay of several weeks. Defendant has also
subpoenaed documents from a number of third-parties. Although many of the third-parties have
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Although these lists include various references to expert discovery, expert discovery will be
scheduled by the Court at the Telephonic Post Fact Discovery Status Conference, as explained above.

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produced the requested documents without objection, Defendant asserts that it still needs more
time to review the documents. Other third-parties have not timely responded to the subpoenas;
and one, BRC Laboratories, Inc., has been granted an extension to respond to the subpoena in the
United States District Court for the District of Rhode Island. During the recent telephonic
argument, Defendant’s counsel reiterated all of these points and emphasized that, despite all the
work he has done in the case thus far, he is unable to complete discovery within the Case
Management Order’s deadline.
The FTC counters that the above facts have no bearing on whether Defendant has been
diligent and contends that Defendant could have issued its discovery and third-party requests
sooner. (Docket No. 48 at 2-4). In this Court’s estimation, however, the FTC’s position does not
fairly account for all of the other work that Defendant has completed during the discovery period
and ignores the disparity of resources and assistance available to the FTC’s counsel and
Defendant’s counsel, respectively. Therefore, as explained by the Court during the parties’
telephonic argument, the Court’s previous decisions cited by the FTC, which involved situations
where all the parties had extensive resources, are distinguishable. See, e.g., Trask v. Olin Corp.,
298 F.R.D. 244 (W.D. Pa. 2014); Carnegie Mellon Univ. v. Marvell Tech Grp. Ltd., 2013 WL
772698 (W.D. Pa. 2013). The other cases cited by the FTC are likewise distinguishable because
much of the delay in this case arises from circumstances over which Defendant has no control,
including technical difficulties, third-parties’ untimely responses to subpoena requests, and the
period of time that Defendant’s Motion to Determine Privilege, (Docket No. 24), has been under
advisement before the Court.3

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As the Court advised the parties during the September 8, 2017 telephonic conference, and as the
Court has noted in several of its other cases, this Court “is presently operating with four empty District
Judge seats, out of a total of ten seats, with three of those seats being vacant for a number of years.”
Cypress Ins. Co. v. Mickens Transp. Spec., 2017 WL 1541892, at *5 (W.D. Pa. 2017); see also Sloane v.

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Thus, the Court concludes that Defendant, through its counsel, has acted diligently during
the initial discovery period and, consequently, has shown good cause to modify the Court’s Case
Management Order. But, given the Court’s conclusion that expert discovery has yet to be
scheduled, the Court finds that Defendant’s request for an extension of 120 days is unwarranted
and is appropriately modified below. Accordingly,
IT IS HEREBY ORDERED that, for good cause shown and given the equities outlined
above, Defendant’s Motion to Extend the Discovery Deadline (ECF No. [44]) is GRANTED, IN
PART AND DENIED, IN PART. Fact discovery is hereby extended until November 3, 2017.
IT IS FURTHER ORDERED that the Court will hold a Telephonic Status Conference
with the parties on October 2, 2017 at 4:30 p.m.
IT IS FURTHER ORDERED that the Court will hold a Telephonic Post Fact Discovery
Status Conference on November 20, 2017 at 4:00 p.m., at which time the Court will hear from
the parties on, inter alia, their remaining needs relating to expert discovery, and will set an
expert discovery schedule.

/s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: September 28, 2017
cc/ecf: All counsel of record.

Gulf Interstate Field Services, Inc., 2016 410965, at *8 (W.D. Pa. 2016). The Court’s lack of resources
and congested docket have the combined effect of causing delay in the disposition of discovery motions,
which occurred in this case with respect to Defendant’s Motion to Determine Privilege.

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