Dunn v. Nicholas County, West Virginia County Commission et al

Filing 70

MEMORANDUM OPINION AND ORDER: directing discovery is reopened under the following terms: plaintiff may conduct as many as six depositions; the extended discovery period shall begin upon entry of this order and extend until 6/17/2016; the remainder of this case shall proceed as follows: Discovery to close by 6/17/2016; Settlement Meeting to be held by 6/24/2016; Motions in Limine to be filed by 6/28/2016, with responses due by 7/5/2016; Plaintiffs portion of proposed Pretrial Order to defenda nts due by 6/28/2016, Proposed Integrated Pretrial Order due by 7/5/2016; Pretrial Conference set for 7/8/2016 at 10:30 AM in Charleston; Proposed Jury Charge due by 7/15/2016; Final Settlement Conference at 10:30 AM on 7/25/2016 in Charleston; Trial set for 7/26/2016 at 09:30 AM in Charleston before Judge John T. Copenhaver, Jr. Signed by Judge John T. Copenhaver, Jr. on 5/11/2016. (cc: counsel of record; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MITCHELL BENNETT DUNN
and ESTHER MAE GIBSON,
Plaintiffs,
v.

Civil Action No. 2:14-25532

NICHOLAS COUNTY, WV, COUNTY COMMISSION,
d/b/a NICHOLAS COUNTY SHERIFF’S DEPARTMENT,
DEPUTY JOHN DOE #1, individually
and in his official capacity, and
DEPUTY JOHN DOE #2, individually
and in his official capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion to reopen discovery, filed by
plaintiffs Mitchell Bennett Dunn and Esther Mae Gibson
(collectively, “plaintiffs”), by counsel, on April 13, 2016.
I.
Plaintiffs’ former counsel “withdrew due to a life
threatening illness and continues to receive treatment[.]”
Reply ¶ 1; see also January 19, 2016, Order, p. 2 (acknowledging
same).

Former counsel moved to withdraw in December 2016.

Motion to Withdraw, Doc. No. 51.

See

The motion was first heard on

December 28, 2015, and was continued to January 19, 2016, when
former counsel was allowed to withdraw.

Plaintiffs were

eventually able to obtain new counsel, Mark Plants, who entered
his appearance on April 13, 2016.
Although the court’s December 24, 2014, scheduling
order set the discovery deadline as July 31, 2015, plaintiffs
request permission to conduct “limited [additional] discovery”
prior to trial.

Pl. Mem. ¶ 5.

Specifically, plaintiffs “seek

to depose the officers present the night of arrest.”

Reply ¶ 7.

Plaintiffs assert that an extension of the discovery period to
that end would “provide an opportunity to develop the case . . .
[and] would not prejudice the [d]efendant[s.]”

Pl. Mem. ¶ 9.

In response, the remaining defendants1 -- the Nicholas
County Commission and two John Doe sheriff’s deputies -- contend
that reopening discovery is unwarranted and would be
prejudicial.

In support of their position, the defendants

observe that plaintiffs “waited until the eve of the statute of
limitations to file the instant lawsuit,” Response ¶ 2, and
claim that plaintiffs’ prior counsel “represented to the Court
that he made a conscious decision to forego discovery in this
matter, as part of his trial strategy,” id. ¶ 7.

The defendants

further accuse plaintiffs of delaying in securing new counsel

1 Defendants City of Summersville, West Virginia, and Summersville
police officer B.J. Dodrill were dismissed from this case on
November 11, 2015. In this opinion, they are referred to
collectively as “the Summersville defendants.”
2

after the withdrawal of their previous counsel on January 19,
2016.

Id. ¶ 11.

Finally, the defendants assert that

“[a]llowing plaintiffs a do-over at this late stage is unfair,
will force [the defendants] to incur additional expenses,” and
is not warranted simply because new counsel disagrees with prior
counsel’s “strategy.”

Id.
II.

Federal Rule of Civil Procedure 16 provides, in relevant
part, that “[a] schedul[ing order] may be modified for good cause and
with the judge’s consent.”

Fed. R. Civ. P. 16(b)(4); Local R. Civ. P.

16.1(f)(1) (The “[t]ime limits in the scheduling order for the . . .
completion of discovery . . . may be modified only for good cause by
order.”).

The good cause standard “emphasizes the diligence of

the party seeking amendment.”

RFT Mgmt. Co., LLC v. Powell, 607

F. App’x 238, 242 (4th Cir. 2015); see also 6A Wright & Miller,
Federal Practice and Procedure § 1522.2 (3d ed.) (The good cause
standard requires “the party seeking relief [to] show that the
deadlines cannot reasonably be met despite the party's
diligence.”); 3 Moore's Federal Practice § 15.14(1)(b), at 16–72
(Matthew Bender 3d ed.) (“[I]t seems clear that the factor on
which courts are most likely to focus when making this
determination is the relative diligence of the lawyer or lawyers
who seek the change.”).

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III.
As noted, plaintiffs contend that, due to their former
counsel’s late withdrawal, as well as the attendant personal
matters affecting his ability to represent them adequately
before his withdrawal, discovery should be reopened.
The general rule is that a party to litigation “is
deemed bound by the acts of his lawyer-agent and is considered
to have ‘notice of all facts, notice of which can be charged
upon the attorney.’”

Link v. Wabash Ry. Co., 370 U.S. 626, 634

(1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 (1880)).
Nevertheless, courts have long distinguished between “a client’s
accountability for his counsel’s neglectful or negligent acts -too often a normal part of representation -- and his
responsibility for the more unusual circumstance of his
attorney’s extreme negligence or egregious conduct.”

Community

Dental Svcs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002).

The

former conduct typically binds the client, whereas the latter,
due to its extraordinary nature, often will not.

See id.;

Boughner v. Sec’y of Health, Educ. & Welfare, 572 F.2d 976, 978
(3d Cir. 1978) (holding that, under certain circumstances, the
“client should [not] suffer the ultimate sanction of losing his
case without any consideration of the merits because of his
attorney’s neglect and inattention”); see also Shepard Claims
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Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 195 (6th
Cir. 1986) (same).

This exception is most often applied in the

context of motions seeking relief from judgment under Rule
60(b).

Such motions require the movant to demonstrate

“extraordinary circumstances” justifying relief.

See Pioneer

Inv. Svcs. v. Brunswick Assocs., L.P., 507 U.S. 380, 383 (1996).
Although motions under Rule 16 require the movant to
show “good cause,” the extraordinary circumstances standard has
been described as “a close correlate of [the] good cause”
standard.

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

610 (9th Cir. 1992).

Consequently, serious neglect by an

attorney has been found to constitute good cause sufficient to
amend a scheduling order under Rule 16.

See, e.g. Matrix Motor

Co., Inc. v. Toyota Jidosha Kabushiki Kaisha, 218 F.R.D. 667,
673-74 (C.D. Cal. 2003) (citing Link, 370 U.S. 626, and Tani,
282 F.3d 1164).
Here, plaintiffs’ former counsel engaged in
practically no discovery, and failed to make a number of
required disclosures, as the now-dismissed Summersville
defendants have elsewhere pointed out.

See Summersville Motion

in Limine, Doc. No. 41 (complaining that plaintiffs’ counsel
“failed to provide [any Rule 26] disclosures . . . failed to
make any effort to schedule the settlement meeting . . . [and]
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failed to provide [the now-dismissed Summersville defendants]
with their portion of the proposed pretrial order.”);
Summersville Motion to Deem Delinquent Request for Admissions
Admitted, Doc. No. 27 (complaining that plaintiffs’ counsel
failed to provide Rule 36 responses, despite numerous reminders
and informal extensions from [defense] counsel).
More troubling, former counsel neglected to take a
deposition of any defendant or other person.

During the

attorney withdrawal hearing on December 28, 2016, former counsel
for the first time presented this as a deliberate “strategy.”
This representation is highly dubious.

Indeed, former counsel’s

failure to identify and depose the deputy John Doe defendants
and those officers who may have observed their conduct has left
the plaintiffs virtually disarmed.
Former counsel’s neglect reached beyond the discovery
process, as well.

For instance, he failed to respond to the

Summersville defendants’ motion for summary judgment until
reminded to do so by the court’s clerk.

See Response in

Opposition to Motion to File Late Response, Exs. 1-2, Doc. No.
37.

When it arrived, the response was unresponsive and cited no

evidence in opposition.
the moving defendants.

The court granted summary judgment to
See November 11, 2015, Order.

Similarly, plaintiffs’ portion of the proposed pretrial order
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was untimely, incomplete, and contained extraneous, irrelevant
material.

See Pl. Proposed PTO, Doc. No. 43.
Although former counsel’s difficulties now appear to

have been caused by a grave illness, former counsel did not
withdraw until nearly six months after the close of discovery,
by which time the damage had been done.

The court is not

insensitive to the apparent cause of former counsel’s neglectful
conduct.

However, the deficiencies in representation here are

more serious than those “neglectful or negligent acts [of
counsel] -- too often a normal part of representation,” Tani,
282 F.3d at 1168 -- for which a litigant is held responsible.
Indeed, they reach to and affect every aspect of this case and
constitute extraordinary circumstances meriting relief.
The court finds that a modest extension of the
discovery period, under the conditions set forth below, will not
unduly prejudice the remaining defendants, who thus far have
been subjected to virtually no plaintiff-requested discovery in
this case.

Considering the substantial problems relating to

plaintiffs’ prior attorney and his eventual withdrawal, and in
the interest of justice, the court concludes that good cause
exists to modify the scheduling order to permit additional,
narrowly-limited discovery.

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IV.
In light of the foregoing, the court ORDERS that
discovery be, and it hereby is, reopened under the following
terms:
- The plaintiffs may conduct as many as six
depositions.

It is noted that the City of Summersville filed in

support of its aforementioned motion for summary judgment
affidavits furnished by Summersville police chief Nowak and
officer Dodrill, as well as a report authored by deputy sheriff
Bennett.
- The extended discovery period shall begin
immediately upon entry of this order and extend until June 17,
2016.

The plaintiffs’ new counsel is admonished to move

swiftly.
It is further ORDERED that the remainder of this case
shall proceed as follows:

Deadline

Date

Discovery to close

06/17/2016

Settlement meeting

06/24/2016

Motion in limine deadline
Responses for motions in limine

06/28/2016
07/05/2016

Proposed pretrial order to defendant

06/28/2016

Integrated pretrial order

07/05/2016

Pretrial conference

07/08/2016 10:30 AM
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Proposed jury charge

07/15/2016

Final settlement conference

07/25/2016 10:30 AM

Trial

07/26/2016 9:30 AM

The Clerk is requested to transmit copies of this
order to all counsel of record and any unrepresented parties.
DATED: May 11, 2016

John T. Copenhaver, Jr.
United States District Judge

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