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Plaintiff Not ‘Diligent’ in Discovery Effort

In a shipyard employee’s “hybrid” Section 301 suit against his union local and the terminal that fired him, the magistrate judge for the Norfolk U.S. District Court says plaintiff’s lawyer waited too long to serve discovery and denies his request for an extension of time for written discovery requests; however, the court grants an extension for the eight depositions noticed by plaintiff, as the notices of deposition were served early and the parties had an ongoing meet-and-confer dialogue over defendant’s objection that plaintiff had noticed the deposition of more than five nonparty, non-expert witnesses as allowed by the pretrial order.

Plaintiff’s claims arise from defendant Virginia International Terminals Inc.’s refusal to reinstate plaintiff’s employment in June 2011, after work restrictions were lifted by his physician on May 26, 2011.

Plaintiff now moves for an extension of time to complete discovery in this case, and to compel the deposition of certain individuals, as to whom plaintiff previously served notices of deposition.

The court’s Rule 16(b) scheduling order established a June 27, 2012, deadline for plaintiff to complete discovery in this case. The order stated “completed” means that interrogatories, requests for production and requests for admission must be served at least 30 days prior to the established completion date so that responses thereto will be due on or before the completion date.

Under the Federal Rules, a Rule 16(b) scheduling order may be  modified only for good cause and with the judge’s consent. 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.

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 of written discovery by mail or electronic methods.  While it may have been reasonable for the plaintiff to defer service of written discovery initially while awaiting a ruling on the motion to disqualify, it was not diligent for him to wait until after the deadline for serving written discovery by mail or fax, and it was not diligent to serve his written discovery by mail or fax when personal service would still have been timely.

The motion for an extension of discovery will be denied with respect to plaintiff’s written discovery requests.

Defendant incorrectly assumes none of the individuals to be deposed, several of whom are officers or managing agents of the defendant organizations, are parties to this litigation. Officers of the union local and of defendant VIT do not count toward the limit imposed by the pretrial order. Of the eight depositions noticed, only three are nonparty, non-expert depositions. The motion will be granted with respect to five witnesses and denied as to three, without prejudice to a later motion to compel based on a witness’s failure to comply with a properly served Rule 45 subpoena.

Reese v. Virginia Int’l Terminals Inc. (Stillman) No. 2:11cv216, Aug. 3, 2012; USDC at Norfolk, Va.; Wayne M. Scriven for plaintiff; Dean T. Buckius for defendant. VLW 012-3-456, 16 pp.

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