Reese v. Virginia International Terminals, Inc.

286 F.R.D. 282, 2012 WL 4026033, 2012 U.S. Dist. LEXIS 130871
District Court, E.D. Virginia·Decided August 3, 2012·No. No. 2:11cv216·Published·Cited by 3 cases

Opinion

ORDER

F. BRADFORD STILLMAN, United States Magistrate Judge.

Before the Court is the plaintiffs motion to extend the time allowed for discovery and to compel certain witnesses to appear for deposition, filed on June 27, 2012. ECF No. 38. On July 11, 2012, defendants Virginia International Terminals, Inc. (“VIT”) and International Longshoremen’s Association, Local 1248 (“ILA Local 1248”) each filed a brief in opposition to the plaintiffs motion. ECF Nos. 39-40. The plaintiff did not file a rebuttal brief. The motion was referred to the undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A) and the Standing Order on Assignment of Certain Matters to United States Magistrate Judges (Apr. 1, 2002). Having reviewed the motion papers identified above, the Court will decide this motion on the papers, without oral hearing, pursuant to Local Civil Rule 7(J) and Rule 78(b) of the Federal Rules of Civil Procedure.

In this action, plaintiff Terry D. Reese, Sr., asserts a so-called “hybrid” Section 301 claim against VIT and ILA Local 1248. Specifically, he alleges that his former employer, VIT, breached the collective bargaining agreement governing his employment, in violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and that his union, ILA Local 1248, breached its duty of fair representation, implied under the scheme of the National Labor Relations Act, in connection with his grievance against VIT. See generally DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164-65 & n. 14, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). As alleged in the amended complaint, these claims arise from VIT’s refusal to reinstate Reese’s employment in June 2011, after work restrictions that previously prevented him from performing his job duties were lifted by his physician on May 26, 2011.

The plaintiff now moves pursuant to Rule 16(b)(4) of the Federal Rules of Civil Procedure and Local Civil Rule 37(F) for an extension of the time allowed for him to complete discovery in this case, and pursuant to Rule 37(a) of the Federal Rules of Civil Procedure and Local Civil Rule 37(A) to compel the deposition of certain individuals, as to whom the plaintiff has previously served notices of deposition. The defendants oppose the motion on the grounds that the plaintiff has failed to establish good cause for granting an extension of time to complete discovery, and that the plaintiff has exceeded a limit of five nonparty depositions imposed by the Court’s Rule 26(f) Pretrial Order in this case.

I. MOTION TO EXTEND DISCOVERY

Discovery in this case commenced on January 23, 2012, when the Court entered a Rule 26(f) Pretrial Order in this case. ECF No. 27. On February 13, 2012, the Court entered a Rule 16(b) Scheduling Order in this case. ECF No. 28. Among other things, the Rule 16(b) Scheduling Order established a June 27, 2012, deadline for the plaintiff to complete discovery in this case. The Order further provided that: “‘Completed’ means that interrogatories, requests for production, and requests for admission must be served at least thirty (30) days prior to the established completion date so that responses thereto will be due on or before the completion date.” Rule 16(b) Scheduling Order ¶ 3, ECF No. 28.

A. Written Discovery

On May 25, 2012, the plaintiff served requests for admission on both defendants. See Scriven Deck Ex. 3, ECF No. 38 attach. 1. According to the attached certificates of service, these requests for admission were served by mail. See id. Under the Federal Rules, the defendants are required to answer these requests within thirty days after being served. Fed. R. Civ. P. 36(a)(3). Because the plaintiff opted to [285]*285serve the requests by fax and mail, rather than by personal delivery to defense counsel or the office of defense counsel, the defendants’ response period was automatically extended by an additional three days under the Federal Rules. See Fed. R. Civ. P. 6(d) (providing an additional three days for service by mail or electronic means); see also Fed.R.Civ.P. 5(b) (describing available methods of service). As calculated under the Federal Rules, the defendants’ answers to the requests for admission were due on June 28, 2012, one day after the discovery deadline. See Fed. R. Civ. P. 6(a) & (d).1

On May 28, 2012, the plaintiff served requests for the production of documents on both defendants by fax and mail. See Scriven Decl. Ex. 5, ECF No. 38 attach. 1. On May 29, 2012, the plaintiff served interrogatories on both defendants by fax and mail. See Scriven Decl. Ex. 4, ECF No. 38 attach. 1. As calculated under the Federal Rules, the defendants’ responses to these interrogatories and requests for production were due on July 2, 2012, five days after the discovery deadline. See Fed. R. Civ. P. 6(a) & (d).

Under the Federal Rules, a Rule 16(b) scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Fed. R. Civ. P. 6(b)(1); Local Civ. R. 37(F). “The good cause provision of Rule 16(b)(4) does not focus on the prejudice to the non-movant or bad faith of the moving party, but rather on the moving party’s diligence.” Lineras v. Inspiration Plumbing LLC, No. 1:10cv324, 2010 WL 4623940, at *2 (E.D.Va. Nov.3, 2010).

The Rule 16(b) Scheduling Order was unequivocal, expressly providing that “interrogatories, requests for production, and requests for admission must be served at least thirty (30) days prior to the established completion date so that responses thereto will be due on or before the completion date.” Rule 16(b) Scheduling Order ¶ 3, ECF No. 28. Given a time period of slightly more than five months to complete its discovery, the plaintiff waited more than four months before serving any written discovery in this case, doing so only after the deadline for timely service of written discovery by mail or electronic methods.

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Reese v. Virginia International Terminals, Inc., 286 F.R.D. 282, 2012 WL 4026033, 2012 U.S. Dist. LEXIS 130871 (E.D. Va. 2012).

286 F.R.D. 282 (Reese v. Virginia International Terminals, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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