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noting that courts in this circuit, in assessing a request to modify a scheduling order, also consider, inter alia, the imminence of trial and prejudice to the non-moving party
Summary of this case from Lufthansa Cargo AG v. Total Airport Servs., Inc.Opinion
09 Civ. 3464 (DAB) (KNF).
June 21, 2010
MEMORANDUM and ORDER
On August 14, 2009, the assigned district judge denied the plaintiffs motion for appointment of counsel, without prejudice to the plaintiff renewing his application "at such time as the existence of a potentially meritorious claim may be demonstrated." Shortly thereafter, the assigned district judge referred the action to the undersigned to supervise, generally, the parties' pretrial activities. On September 22, 2009, the Court held an initial pretrial conference with the parties, during which it ordered the parties to complete all discovery activities by January 15, 2009. This directive, and others given to the parties during the conference, was memorialized in a September 23, 2009 scheduling order. See Fed.R.Civ.P. 16(b).
The parties participated in a telephonic status conference with the Court, on December 7, 2009. At that time, both parties informed the Court they expected to complete discovery timely. On January 25, 2010, the Court appointed counsel to represent the plaintiff, for the limited purpose of assisting the plaintiff during a settlement conference with the Court. According to the defendant's counsel, from approximately that time until about April 9, 2010, the plaintiff, through appointed counsel, and the defendant engaged in settlement discussions. Nevertheless, the parties were unable to reach an agreement settling their dispute.
the parties were unable to reach an agreement settling their dispute.
On April 19, 2010, the plaintiff pro se: (1) renewed his application for the Court to appoint counsel to represent him, for all purposes, in this action; and (2) filed a motion to reopen discovery. The defendant opposes the latter motion. The Court analyzes both motions below.
DISCUSSION
Appointment of Counsel
The plaintiffs renewed request, for the Court to appoint counsel to assist him in this action, is based on the plaintiffs contention that a chart, produced during discovery by the defendant, contains inaccurate information regarding, inter alia, his salary while employed by the defendant. According to the plaintiff, he does "not know the extent to which other information contained in the [defendant's] chart is wrong."
In determining whether to appoint counsel for an indigent civil litigant, such as the plaintiff, the Court assesses primarily "whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). In other words, the Court considers whether the claim(s) asserted by the plaintiff may have merit or "some chance of success. . . ."Id. at 60-61. In denying the plaintiffs first request for counsel, the assigned district judge invited the plaintiff to renew his application when he could demonstrate "the existence of a potentially meritorious claim." In his renewed application, the plaintiff has failed to provide the Court any information to show he has pleaded a claim that is likely to be meritorious. Though the plaintiff challenges the accuracy of a chart the defendant may use on a motion or at trial, such a challenge is not a proper basis for making a motion for court-appointed counsel. As the plaintiff has failed to demonstrate, in his renewed application, that he has a potentially meritorious claim, it would be inappropriate to appoint counsel to represent him, for all purposes, in this action.
Reopening Discovery
The plaintiff moves to reopen discovery, on the ground that he failed previously to "pose certain questions" to the defendant's counsel, owing to his inexperience with legal matters. He contends, without explanation, that reopening discovery will "help prove [his] case."
Pursuant to Fed.R.Civ.P. 16(b)(4), a scheduling order "may be modified only for good cause and with the judge's consent."See Gray v. Town of Darien, 927 F.2d 69, 74 (2d Cir. 1991) (applying good cause standard in upholding district court's denial of plaintiffs' motion to reopen discovery). "A finding of good cause depends on the diligence of the moving party."Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). District courts in this circuit have considered additional factors, specific to assessing a request to modify a scheduling order by reopening discovery, including: (1) the imminence of trial; (2) whether the request is opposed; (3) prejudice to the non-moving party; (4) whether the moving party foresaw the need for additional discovery, in light of the discovery deadline set by the court; and (5) whether further discovery is likely to lead to relevant evidence. See Am. Mfrs. Mut. Ins. Co. v. Payton Lane Nursing Home, Inc., No. CV 05-5155, 2010 WL 985201, at *3 (E.D.N.Y. Mar. 15, 2010); Pharmacy, Inc. v. Am. Pharm. Partners, Inc., No. CV 05-776, 2008 WL 4415263, at *3 (E.D.N.Y. Sept. 24, 2008).
The plaintiff has not pursued his claims diligently. During a telephonic conference with the Court on January 13, 2010, two days shy of the close of discovery, the defendant's counsel informed that Court that, to her knowledge, the plaintiff had not noticed any depositions or made any document requests. The plaintiff did not contest this assertion. Although the plaintiff submitted to a deposition by the defendant, the Court cannot conclude he worked diligently during the four months provided for discovery. Consequently, this factor militates against granting his motion.
Although the assigned district judge has not set a trial date, for this action, the defendant has requested a pre-motion conference, seeking leave to move for summary judgment. Under these circumstances, the defendant would be prejudiced by the delay necessitated by reopening discovery. Hence, while the first additional factor weighs in the plaintiffs favor, the second and third additional factors militate against granting his motion.
The Court determines the fourth additional factor to be neutral, as the plaintiff has not specified what "questions" he failed to ask the defendant during discovery. It is unclear from the plaintiffs motion whether he knew, early on during the four-month period the Court provided for discovery, that he needed the information he now seeks. In a similar vein, the fifth additional factor is neutral in the Court's assessment. The plaintiff has written that reopening discovery will likely lead to relevant evidence; however, the plaintiffs assertion is speculative, at best. See Gray, 927 F.2d at 74 (upholding denial of motion to reopen discovery where plaintiffs did not seek any discovery for six months and "only speculate as to what evidence, if any, further discovery would produce").
Bearing in mind that "[a] party's assertion that further discovery is needed, without more, will not suffice" to modify a scheduling order, see 6A Charles A. Wright, Arthur R. Miller, Mary K. Kane Richard L. Marcus, FED. PRAC. PROC. CIV. § 1522.2 (2d ed.), the Court finds that the plaintiff has failed to establish good cause for reopening discovery.
CONCLUSION
For the reasons set forth above, the plaintiffs motions, for the Court to appoint counsel to him and to reopen discovery, are denied. This order resolves Docket Entry Nos. 16 and 17.SO ORDERED: