The opinion of the court was delivered by: Bernard G. Skomal United States Magistrate Judge
(1) GRANTING DEFENDANTS'
EX PARTE MOTION TO EXTEND EXPERT DESIGNATION (DOC. NO.99);
(2) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S EX PARTE MOTION
TO EXTEND DISCOVERY (DOC. NO. 103); & PLAINTIFF'S
(3) EX PARTE DENYING AS MOOT
MOTION TO EXTEND DISCOVERY DEADLINES (DOC. NO. 112)
Presently before the Court are various motions filed by Plaintiff Amy Gurvey and Defendants regarding discovery scheduling and disputes. On July 6, 2011, Defendants Legend Films, Inc., Legend3D, Inc., Barry Sandrew, and Jeffrey Yapp filed an ex parte motion to extend the deadline for expert designation. (Doc. No. 99.) On July 11, 2011, nunc pro tunc to June 29, 2011, Plaintiff filed an ex parte request to extend discovery, mandate production from Defendants "of all documents that exchanged hands during defendants' angel and private placement venture capital rounds since 2002," for an order granting Plaintiff's right to appeartelephonically at the next court hearing of July 7, 2011, and for an order granting Plaintiff expedited electronic filing privileges for this lawsuit. (Doc. No. 103.) In Plaintiff's ex parte motion, Plaintiff also opposes Defendants' ex parte motion to extend the deadline for expert designations. (Id. at 6.) On July 8, 2011, Defendants filed an opposition to Plaintiff's ex parte motion. (Doc. No. 101.) On July 19, 2011, nunc pro tunc to July 13, 2011, Plaintiff filed another ex parte motion to extend discovery deadlines, opposition to Defendants' ex parte motion to extend expert deadlines, and request for expedited rehearing of discovery during the week of July 11. (Doc. No. 112.) Defendants filed an opposition to Plaintiff's most recent ex parte motion on July 19, 2011. (Doc. No. 113.)
I. Defendants' ex parte motion to extend the deadline for expert designations
In their ex parte motion, Defendants request the Court extend the deadline to designate expert witnesses from June 3 to July 1, 2011. (Doc. No. 99.) Defendants do not seek to extend the deadline to exchange expert reports. Expert designations were to be made no later than June 3, 2011, and Defendants did not move for an extension of this deadline until July 6, 2011. Therefore, because Defendants moved for an extension after the time has expired for expert designations, Defendants must demonstrate good cause for an extension of the deadline as well as excusable neglect for failing to make their designations by the deadline. Fed.R.Civ.P. 6(b). Additionally, because expert designations are disclosures required by Rule 26(a), to excuse a failure to disclose, the failure must be substantially justified or harmless. Fed.R.Civ.P. 37(c).
In support of their request, Defendants assert that they had an agreement with Plaintiff's former counsel, Andre Jardini, to extend expert designations to July 1 due to an expert changing his fee quote shortly before designations were due, requiring Defendants to locate a different expert. (Id.; Doc. No. 99-3, Clifford Decl. ¶2.) On June 2, 2011, Andre Jardini filed an ex parte motion to withdraw as Plaintiff's attorney. (Doc. No. 82.) Based upon this motion to withdraw from the case, Mr. Jardini was not comfortable signing a joint motion memorializing the parties' agreement regarding expert designations. (Doc. No. 99-2, Plevin Decl. ¶5.) On June 20, 2011, Plaintiff filed a request for approval of substitution of attorney, seeking to substitute into the case to represent herself. (Doc. No. 93.) The Court grantedPlaintiff's request. (Doc. No. 94.) Plaintiff now opposes Defendants' ex parte to extend the date for designations.
In her opposition, Plaintiff argues that Defendants' ex parte motion is improper and that further expert discovery in favor of Defendants is now irrelevant in the face of controlling NY law on the issue of "highest valuation." (Doc. No. 103 at 6.) Plaintiff also asserts that she received notice of the ex parte motion by fax and she does not authorize service by fax. (Id. at 6-7.) Contrary to Plaintiff's assertion, Defendants' ex parte motion was not improper. Pursuant to Judge Skomal's Chambers' Rules, "[a] party seeking a modification [of the scheduling order] may move ex parte if the other parties will not join in a motion to amend the schedule." The Court also finds Plaintiff's argument regarding the relevancy of further expert discovery by Defendants is not proper at this stage in the proceedings, given that Defendants merely seek to designate an expert they may use at trial to present evidence. Additionally, Defendants have provided a proof of service of their ex parte motion on Plaintiff by mail. (Doc. No. 99-4.)
The Court finds that Defendants' failure to designate experts by June 3 was substantially justified under the circumstances and harmless. See Fed.R.Civ.P. 37(c). Defendants, only days before designations were due, learned of a fee change by a potential expert and sought to locate a new expert. Defendants appraised opposing counsel of the situation and sought a stipulation for a one month extension. Mr. Jardini agreed to the extension and then filed his motion to withdraw from representation before counsel could file a joint motion memorializing the agreement. There was also a lapse of time between the motion to withdraw and Plaintiff's substitution into the case to represent herself. Plaintiff has not articulated how she would be prejudiced by the Court allowing Defendants an extension to designate their expert. It appears Plaintiff will not be harmed, as Defendants will provide an expert report by the current deadline. Given these circumstances, the Court finds Defendants have shown good cause for an extension and excusable neglect for failing to move for an extension before the time to designate expired. See Fed.R.Civ.P. 6(b). Accordingly, the Court grants Defendants' ex parte motion and extends the deadline by which all parties shall exchange with all other parties a list of all expert witnesses expected to be called at trial pursuant to Fed.R.Civ.P. 26(a)(2)(A) to July 1, 2011.
II. Plaintiff's ex parte motion filed July 11, 2011
Plaintiff requests in her ex parte motion that the Court extend discovery, mandate production from Defendants "of all documents that exchanged hands during defendants' angel and private placement venture capital rounds since 2002," issue an order granting Plaintiff's right to appear telephonically at the next court hearing of July 7, 2011, and issue an order granting Plaintiff expedited electronic filing privileges for this lawsuit.
A. Plaintiff's request to appear telephonically and electronic filing privileges
As an initial matter, the Court denies as moot Plaintiff's request to appear telephonically at the next court hearing of July 7, 2011. On June 24, 2011, the Court vacated the Further Settlement Conference set for July 7, 2011. (Doc. No. 97.) Additionally, the Court denies as moot Plaintiff's request for electronic filing privileges, as that request was addressed by Judge Battaglia on July 15, 2011in an Order regarding a separate motion filed by Plaintiff on July 6, 2011. (See Doc. Nos. 100 & 110.) Judge Battaglia ordered Plaintiff to submit a new declaration, under penalty of perjury, addressing each of the six inquiries the Court must consider before granting a pro se litigant access to the ECF system. (Doc. No. 110.) To date, Plaintiff has not submitted such a declaration.
B. Plaintiff's request to extend discovery and for production of documents
Plaintiff requests the Court extend discovery in order to reschedule Defendants' depositions after the due diligence documents are produced and reviewed by Plaintiff. (Doc. No. 103 at 3-4.) Fact discovery in this case ended on May 20, 2011 and Plaintiff did not move to extend discovery until June 29, 2011. (Doc. No. 69 ¶2; Doc. No. 103.) Therefore, because Plaintiff moved for an extension after the time has expired for completing discovery, Plaintiff must demonstrate good cause for an extension of discovery as well as excusable neglect for failing to complete the discovery by the cutoff. Fed.R.Civ.P. 6(b).
In support of her request to extend fact discovery, Plaintiff asserts that depositions noticed by her former attorney, Mr. Jardini, were cancelled at Defendants' request and it was understood by Mr. Jardini that counsel had an arrangement to extend fact discovery in order to reschedule these depositions. (Doc. No. 103 at ¶3.) Plaintiff has attached to her motion a declaration from Mr. Jardini. (Doc. No. 103, Ex. 1, Jardini Decl.) Mr. Jardini states that the depositions of Defendant Jeffrey Yapp and Barry Sandrew were originally noticed for April 22, 2011. (Id. ¶4.) Mr. Jardini also noticed the deposition of Defendant Legend 3D, Inc. under Fed.R.Civ.P. 30(b)(6) for May 11, 2011. (Id. ¶5.) Mr. Jardini declares that after serving these notices, he spoke with defense counsel, Fred Plevin, who indicated that Jeffrey Yapp would be unavailable on April 22. (Id. ¶6.) Mr. Plevin and Mr. Jardini agreed to reschedule both the Yapp and Sandrew depositions to a new date and that Mr. Jardini would take the 30(b)(6) depositions of Yapp and Sandrew on the same day. (Id. ¶6.) In an email confirming this conversation, Mr. Plevin confirmed that the depositions of Yapp and Sandrew would leave only a few areas noticed for the 30(b)(6) deposition of Legend for David Martin. (Id. ¶6, Ex. 3 to Jardini Decl..) Mr. Jardini avers that on April 17, 2011, Mr. Plevin sent an email confirming that the depositions of the individual defendants would occur on June 1, 2011 and that the Rule 30(b)(6) deposition would be deferred for later scheduling. (Id. ¶7, Ex. 4 to Jardini Decl..) Mr. Jardini then later took the depositions set for June 1, 2011 off calendar due to the impasse between Mr. Jardini and Ms. Gurvey as to the handling of this case. (Id. ¶¶8-9.) Mr. Jardini ...