United States District Court, D. Massachusetts
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY and THE COMMERCE INSURANCE COMPANY, Plaintiffs,
SAVIN HILL FAMILY CHIROPRACTIC, INC. et al., Defendants.
ORDER ON MOTION FOR RECONSIDERATION (DOC. NO.
SOROKIN UNITED STATES DISTRICT JUDGE
before the Court is Commerce's motion for
reconsideration, Doc. No. 1282, of the Court's earlier
Order on case management, Doc. No. 1216. Since Commerce
joined this case as a new plaintiff in the Amended Complaint,
Metropolitan and Commerce have, to the Court's
recollection, made all of their filings prior to this one
together, except in one other instance.Here, Commerce
alone seeks additional depositions and to compel further
production by certain defendants. Plaintiffs offer no
explanation for why they are proceeding separately. Now, as
throughout this litigation, they are represented by the same
law firm. In light of the history of this litigation, this
unexplained behavior in which one Plaintiff seeks relief for
both Plaintiffs raises concerns. The Court sets these
concerns to the side, however, and does not consider them in
resolving this motion.
Court presumes familiarity with its prior discovery rulings,
and this Order does not recount that long history.
See Doc. Nos. 507, 591, 806, 1057, 1102, 1216
(setting the scope of discovery and establishing and
extending case management deadlines). On this backdrop,
Commerce makes two requests for reconsideration of the
Court's most recent scheduling order, Doc. No. 1216.
for reconsideration are appropriate only in a limited number
of circumstances: if the moving party presents newly
discovered evidence, if there has been an intervening change
in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.” United States v. Allen, 573
F.3d 42, 53 (1st Cir. 2009). They “are not to be used
as a vehicle for a party to undo its own procedural failures
or allow a party to advance arguments that could and should
have been presented to the district court prior to
judgment.” Id. (internal quotations and
citations omitted). Because Commerce's motion seeks
revision of the scheduling order in this case, Commerce must
also demonstrate that good cause exists for such a change at
this point. See O'Connell v. Hyatt Hotels of Puerto
Rico, 357 F.3d 152, 154 (1st Cir. 2004).
Commerce asks the Court to reopen paper discovery as to the
Clinic Defendants. Doc. No. 1283 at 10-14. Nearly two years
ago, the Court ordered the Clinic Defendants to disclose
certain patient files related to the claims in this case.
Doc. No. 507. Thereafter, Magistrate Judge Boal issued
various orders requiring the Clinic Defendants to produce
certain documents. See, e.g., Doc. No. 699. The
Clinic Defendants then produced some paper files and gave
Plaintiffs at least some access to electronic files. Doc. No.
1283 at 5-6.
August 15, 2018, the Clinic Defendants both declared
bankruptcy. Doc. Nos. 771, 772. After the Clinic Defendants
entered bankruptcy, Plaintiffs at no point asked the
Bankruptcy Court to issue a protective order requiring
preservation of the documents sought, to require the
bankruptcy trustee to take physical possession of physical
and electronic files, or to allow Plaintiffs to review the
remaining evidence. Before the September 5, 2018, hearing on a
revised schedule for this case, see Doc. No. 795,
Plaintiffs could have, but did not, seek to stay the entire
case pending resolution of the bankruptcies or advised the
Court that they would need to revisit and reopen clinic
discovery if either entity emerged from bankruptcy.
Similarly, their subsequent motion, Doc. No. 801, failed to
make such a request, despite its extensive discussion of the
Clinic Defendants' bankruptcies.
months into the bankruptcy proceedings, Plaintiffs finally
moved to lift the automatic stay that resulted from the
Clinic Defendants' bankruptcies. Doc. No. 1283 at 6. On
January 29, 2019, with the bankruptcy trustee's
concurrence, the bankruptcy stay was lifted. See
Doc. No. 1087. Neither then nor in their later motion to
revise the schedule did Plaintiffs account in any way for
reopening paper discovery as to the Clinics. Now, all the
motions to compel have been resolved, the resulting discovery
completed, the reports of Plaintiffs' experts produced,
the first depositions taken. The trial date in this matter,
which has long been firmly set, see Doc. No. 806 at
2, is now six months away.
these circumstances, reopening paper discovery at this point
would cause substantial disruption to the schedule for the
remainder of this litigation. It would affect expert
disclosures, depositions taken, and deposition preparation
underway, and interfere with the capacity of the parties to
meet the established schedule. Significantly, Commerce's
request articulates no relationship between the additional
discovery sought and the schedule now established in this
case. Commerce offers no explanation for how the additional
discovery would bear on the schedule. It does not even
articulate specifically what discovery Commerce wants or a
timetable for such discovery, let alone how this would
intersect with the existing schedule. This falls woefully
short of good cause or a basis for
points out that new counsel for the Clinic Defendants
recently entered an appearance, Doc. No. 1254, whereas the
clinics were unrepresented and seemingly headed for default
at the time of Commerce's prior motion to revise the
schedule, Doc. No. 1283 at 10. Commerce misapprehends the
significance of this fact. If the documents possessed by the
clinics are as significant to Plaintiffs' pending claims
as Commerce suggests, Commerce should have pursued them
diligently, any possible defaults notwithstanding. To the
extent the documents are significant only to the Clinic
Defendants' counterclaims, Commerce has failed to propose
a reasonable discovery plan, as described above, or to
address the issues that might arise from the documents'
Accordingly, Commerce's request to reopen written
discovery is DENIED.
Commerce requests to take the depositions of the six Employee
Defendants.When the Court revised the schedule for
this litigation in January, Doc. No. 1102, Plaintiffs did not
propose a reasonable schedule that included depositions of
the Employee Defendants. Plaintiffs similarly made no
reasonable proposal including such depositions when the Court
later revised the schedule yet again. See Doc. No.
1216. As a result, Plaintiffs are currently authorized to
take the depositions of only the ten people they identified
in their papers as their ten depositions as of right.
See Doc. No. 1216 at 9; Doc. No. 1141 at 4-5. The
ten depositions Plaintiffs chose based upon the presumptive
limit of ten did not include the Employee Defendants.
Id. Now, for the first time, Commerce proposes
taking depositions of the Employee Defendants that are
limited to two hours per deponent. Doc. No. 1282 at 2.
request is also DENIED. Commerce offers no plan for
completing the additional depositions they request within the
time that now remains for fact depositions. Plaintiffs have
already failed to meet discovery deadlines on numerous
occasions. See Doc. No. 1250. They provide neither
assurance nor, more importantly, a reasoned plan to
accomplish the additional depositions. Realistically, each
additional two-hour deposition would take at least a
half-day, including time for questions from other Defendants
and possibly the Employee Defendants' own counsel.
See Doc. No. 1216 at 11 (providing time for
Plaintiffs' questions at time-limited depositions to be
taken by Defendants). The additional depositions therefore
add at least three business days of depositions into already
tight period for fact depositions, of which only just over
sixty business days remain. The other thirty depositions
already allowed will require nearly thirty full business days
under the best of circumstances. See Doc. No. 1216
at 9-11. At this point, adding three additional days of
depositions, which, given potential scheduling issues, may
well require as many as six different dates, is therefore
very significant. The Court concludes, based on
Plaintiffs' conduct in this case, that they will not be
able to accomplish the depositions on the allowed timeline.
Their failure to offer a reasoned plan confirms the
foregoing reasons, Commerce's motion for reconsideration,
Doc. No. 1282, is DENIED in its entirety.