The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER DENYING PLAINTIFF'S OBJECTIONS TO AND APPEAL OF MAGISTRATE JUDGE'S ORDER ON PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY AND LEAVE TO DESIGNATE AN ADDITIONAL WITNESS (Doc. No. 119.)
Presently before the Court is Plaintiff Luzviminda Datin's (Plaintiff) objections to and appeal of magistrate judge's September 29, 2010, written order on Plaintiff's motion for extension of time to complete discovery and leave to designate an additional witness. (Doc. No. 119.) Also before the Court is Defendant M/V Sea Quest, Inc.'s (Defendant) response in opposition. (Doc. No. 120.) For the reasons stated below, Plaintiff's objections are DENIED.
Plaintiff brought this maritime action as personal representative of the estate of Michael J. Datin (Datin) on May 25, 2007. Datin is Plaintiff's husband. (Doc. No. 1 (Compl.).) The allegations arise out of Datin's application for and employment aboard Defendant's tuna fishing vessel, the M/V Proud Heritage (the Vessel). (Compl.) Specifically, Datin was employed by Defendant as chief engineer aboard the Vessel on three different voyages from 2004--2005, Trips T-111, T-112, and T-113. Plaintiff alleges that, during these voyages, Datin suffered from illness or injury and Defendant did not provide adequate medical care aboard the Vessel or on shore. (See Id. ¶ 11--13.) Datin died on September 9, 2005, from liver failure. (Id. ¶ 12.) Plaintiff's Complaint alleges four causes of action: (1) wrongful death and survival claim for willful or arbitrary failure to pay maintenance and cure; (2) survival claim for statutory wages; (3) wrongful death and survival claim for negligence under the Jones Act; and (4) wrongful death and survival claim for unseaworthiness. (See generally id.)
On January 9, 2009, Defendant filed a motion for leave to file an amended answer to add three affirmative defenses (Doc. No. 37) and a motion for summary judgment. (Doc. No. 38.) Before the Court could rule on the motions, the parties grappled with discovery disputes. (Doc. Nos. 39, 47, 48, 52, & 60.) After significant delays, Defendant's motions were withdrawn (Doc. Nos. 64 & 65) and then resubmitted on November 12, 2009. (Doc. Nos. 69 & 71.)
After resubmission, Plaintiff motioned to continue the hearing date on the motions so that it could perform discovery necessary to oppose. (Doc. No. 75.) On December 9, 2009, the Court granted an additional forty-five days for Plaintiffs "to file motions to compel witnesses . . . and to depose witnesses" prior to filing its oppositions. (Doc. No. 81.) Nearly a year and a half after the motions were first filed, the Court granted Defendant leave to amend three affirmative defenses and granted in part and denied in part Defendant's motion for summary judgment. (Doc. No. 106.)
On June 30, 2010, the parties filed a motion to reopen discovery. (Doc. No. 112.) As part of this motion, Plaintiff requested to depose nine witnesses and supplementally depose three witnesses. (Id. at 3, Doc. No. 116 (Order) at 2.) Plaintiff argued that the additional depositions would be required in order to properly respond to the new affirmative defenses. On September 29, 2010, Magistrate Judge Skomal denied Plaintiff's requests. (Order at 2.) Plaintiff objected soon thereafter.
Pursuant to 28 U.S.C. § 636(b)(1)(A), this Court reviews Magistrate Judge Skomal's order under a "clearly erroneous or contrary to law" standard. See also Hoar v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990) ("Matters concerning discovery generally are considered 'nondispositive' of the litigation."). "The 'clearly erroneous' standard applies to factual findings and discretionary decisions made in connection with non-dispositive pretrial discovery matters." FDIC v. Fidelity & Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D. Cal. 2000). "Clearly erroneous" review is "significantly deferential, requiring 'a definite and firm conviction that a mistake has been committed.'" Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993). On the other hand, "contrary to law" review "permits independent review of purely legal determinations by the magistrate judge." Fidelity, 196 F.R.D. at 378 (citing, inter alia, Computer Econs., Inc. v. Gartner Grp, Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999)).
In this case, Judge Skomal's discovery order involved "factual findings and discretionary decisions made in connection with non-dispositive pretrial discovery matters." Id. The Court, therefore, will review under the "clearly erroneous" standard.
Judge Skomal first denied Plaintiff's request to depose Ariel Villanueva, Marino Aguilar, Tony Joane, Nole Fernandez, Sergio Munoz, John Gomes, William C. Armstrong, and Josephine Russo. The group is composed of Datin's crewmates, and their testimony is allegedly necessary for Plaintiff to respond to Defendant's affirmative defenses. Judge Skomal's reasons for denying depositions were thorough. (Doc. No. 115 at 17--18, 20--21.) And it ultimately boiled down to considerations of probative value, expense, and prior opportunity.
Judge Skomal found additional depositions to be of limited probative value because the "record is replete" with the facts Plaintiff wishes to establish through deposition. (Id. at 21.) Additional discovery would be cumulative. (Id. at 18.) Moreover, the depositions would cost an exorbitant amount of time and money. (Id. at 13.)
Least important, but most contentious, is Judge Skomal's finding that Plaintiff had prior opportunity to perform the depositions and failed to do so. As noted above, Plaintiff requested a continuance on Defendant's motions for summary judgment and motion to amend affirmative defenses. (Doc. No. 75.) Plaintiff requested a forty-five day extension so that it could "motion to compel attendance of key witnesses for deposition, depose witnesses with information relevant to Plaintiff's opposition to Defendant's Motions and obtain the transcripts of the depositions." (Id. at 1--2.) The Court granted Plaintiff's request. (Doc. No. 81.)
During this forty-five day period, Plaintiff had the opportunity to depose Datin's crewmates-the very crewmates Plaintiff wishes to depose now. Plaintiff argues that, given the cost associated with finding and deposing the crewmates, it was unreasonable to depose witnesses relevant to affirmative defenses not guaranteed to be allowed. (Doc. 119 at 13.) ...