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Carnell Construction Corporation v. Danville Redevelopment & Housing Authority

United States District Court, W.D. Virginia, Danville Division

May 22, 2015



ELIZABETH K. DILLON, District Judge.

Pending before the court is a motion by defendant Danville Redevelopment & Housing Authority (DRHA)[1] in which it seeks leave to conduct additional limited discovery prior to the retrial of this matter. (Dkt. No. 836.) For the reasons discussed below, the court will grant the motion in part and deny it in part.


Briefly summarized, this case was appealed after a third jury trial.[2] On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment in part, vacated in part, and remanded the case to this court for a fourth trial on limited issues. (Dkt. No. 800.) Specifically, the Fourth Circuit's opinion and mandate required a new trial on Carnell Construction Corporation's (Carnell) race discrimination and retaliation claims against DRHA, and also required a new trial on damages as to two of Carnell's contract claims for unpaid work against both DRHA and Blaine Square. ( See Dkt. No. 799 at 44-45 (Fourth Circuit opinion summarizing its holding).) Nothing in the Fourth Circuit's opinion suggested or required that this court allow additional discovery prior to trial, but the opinion also did not foreclose any such discovery.

In its motion, DRHA requests additional discovery on three main topics: "(1) the website; (2) the financial condition and business of Carnell Construction Corporation and its sole shareholder Michael Scales; and (3) Carnell Construction Corporation's claimed damages for loss of bonding capacity, to include any claims made against bonds issued on behalf of Carnell Construction Corporation to secure payment or performance on other projects." (Dkt. No. 836 at 1.) Each of these topics will be discussed separately below.


As noted, the Fourth Circuit's opinion and mandate did neither required nor prohibited additional discovery. Accordingly, the "well-established" rule applies here that the trial court decides whether to reopen the evidence after remand by an appellate court. United States v. Virginia, 88 F.R.D. 656, 662 (E.D. Va. 1980) (hereinafter Virginia) ; Kennedy v. Joy Techs., Inc., 2008 WL 1985231, at *2 (W.D. Va. May 7, 2008) (citing Virginia for the proposition that "whether to allow reopening of the evidence after remand by an appellate court is within the discretion of the trial court"). This court's discretion must be guided, however, by the "strong institutional grounds for precluding the reopening of litigation." Kennedy, 2008 WL 1985231, at *2 (citing E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 711 F.Supp. 1205, 1212 n.24 (D. Del. 1989)). Those grounds include that "a case is not remanded by an appellate court to give a party an opportunity to supplement the evidence presented at trial" and that, while a party upon remand "naturally would like to bolster its position... with its hindsight benefited by" the appellate opinion, "free permission of this practice would result in endless litigation." E.I. DuPont de Nemours & Co., 711 F.Supp. at 1212 n.24 (quoted in Kennedy, 2008 WL 1985231, at *2).

In deciding whether to allow additional discovery after an appeal and remand, other courts have looked to a number of factors, including the relevance and importance of the information sought through the discovery, whether the parties were precluded from developing evidence based on an erroneous legal ruling, whether the discovery relates to ongoing events relevant to the claims, and whether such discovery could have been conducted earlier. See Kennedy, 2008 WL 1985231, at *2; see also Virginia, 88 F.R.D. at 658-59 (allowing postremand discovery as to certain topics, including an area of inquiry that the court's prior legal ruling erroneously foreclosed, but not on other topics).

In Virginia, for example, the court declined to allow discovery of one subject area where the plaintiff had "an adequate opportunity" to conduct discovery on that topic prior to the earlier trial. 88 F.R.D. at 658-59; see also Kennedy, 2008 WL 1985231, at *2 (denying requested discovery after remand where party seeking it had not shown why it could not have been obtained earlier). Conversely, where the relief sought on remand requires a consideration of facts as they exist at the time of remand and not as they existed several years in the past, then discovery to update and determine facts as of the relevant date may be appropriate. See MercExchange, L.L.C. v. eBay, Inc., 467 F.Supp.2d 608, 611-12 (E.D. Va. 2006) (permitting limited discovery after remand so that the parties could update the court on factual developments occurring after the first trial, where those facts were necessary to the court's determination as to whether to grant prospective injunctive relief).

DRHA contends that none of the discovery it seeks now was available to it prior to the third trial. It also argues that all of the information it seeks is highly relevant to the claims and defenses at trial.

Carnell opposes allowing any additional discovery prior to the retrial on a number of grounds. First, Carnell points out that DRHA's prior counsel, in communicating with the former trial judge's courtroom deputy regarding the setting of the fourth trial, stated in an email message that no new discovery would be needed prior to the trial. (Dkt. Nos. 838 at 1-2 & 838-1 (Dec. 18, 2014 email from DRHA counsel Glenn Pulley to Judge Conrad's courtroom deputy clerk).) Carnell argues that DRHA is bound by that representation.[3] (Dkt. No. 838 at 1-2.) Second, Carnell points out that the parties had previously engaged in extensive discovery, including some discovery that occurred after the first trial and related to damages. ( Id. at 2.) Third, Carnell contends that DRHA has failed to establish any viable reason for what it deems "another bite at the apple" as to any of the three topics. ( Id. at 5.)

A. The website

DRHA first seeks discovery concerning the website, which appears to be primarily a vehicle for setting forth Carnell's perspective of this litigation and asking for donations to fund Carnell's litigation expenses. DRHA has attached a number of screen shots from the site. The site describes itself as "the informational website" for this lawsuit, and contains a large heading on the home page stating, "JUSTICE DELAYED IS JUSTICE DENIED!" (Dkt. No. 837-1 at 1.) DRHA states that, upon information and belief, the website did not become active until sometime in 2013 and that information has been added to it as recently as March 2014. (Dkt. No. 837 at 3-4.) Thus, according to DRHA, it could not have obtained discovery about the site prior to the most recent trial, which concluded in August 2012. ( Id. )

DRHA contends that it should be allowed to discover information about the website "including, without limitation, the identification of those who hired the company to design the Website and provided content, who is responsible for maintaining the Website, and who is receiving the money donated through the Website, " all topics which it claims are "highly relevant to DRHA's defenses." ( Id. at 4.) In particular, it contends that information about the website supports its defense that Carnell and Michael and Vincent Scales ...

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