United States District Court, W.D. Virginia, Harrisonburg Division
MEMORANDUM OPINION & ORDER
C. Hoppe, United States Magistrate Judge.
matter is before the Court on Plaintiff's motion to
continue the trial date and extend the deadline to complete
discovery (“Motion to Continue”). ECF No. 22.
Plaintiff has also moved, pursuant to Rule 56(d) of the
Federal Rules of Civil Procedure, for the Court to defer
consideration of Defendant's Motion for Summary Judgment
to give Plaintiff additional time to conduct discovery
(“Motion for Discovery”). ECF No. 30. Neither
party requested a hearing, and I find that the motions can be
resolved on the written papers. Considering the parties'
arguments and the applicable law, I find that Plaintiff has
shown good cause to continue the trial date and corresponding
discovery deadlines in this matter, and I therefore will
grant her motions.
2018, Plaintiff filed a Complaint in the Frederick County,
Virginia Circuit Court seeking damages for injuries she
allegedly sustained after tripping over a pothole in the
parking lot outside one of Defendant's stores.
See Compl., ECF No. 1-2. Defendant removed the
action to this Court under 28 U.S.C. §§ 1332 and
1441. ECF No. 1. On October 4, 2018, Chief District Judge
Michael F. Urbanski entered a Scheduling Order, setting the
matter for a three-day jury trial to begin on April 15, 2019.
ECF No. 10. The order also set a deadline of January 15,
2019, for the parties to complete discovery. See id.
January 4, 2019, fewer than two weeks before the close of
discovery, Jonathan Breeding, Plaintiff's only attorney
of record at the time, left the employment of his law firm,
ChasenBoscolo Injury Lawyers (“CIL”). Though the
parties had tentatively agreed to conduct depositions of
Defendant's representatives, Plaintiff had not issued a
formal notice of deposition. None of the remaining attorneys
at CIL were, at that time, admitted to practice before the
United States District Court for the Western District of
Virginia, and therefore could not enter their own notice of
appearance in this matter. See W.D. Va. Gen. R. 6.
Nevertheless, prior to the close of discovery, Ashley E.
Strandjord, another attorney with CIL, issued an unsigned
“Notice of Videotaped Deposition” in which she
noticed the depositions of two representatives for the
Defendant that were to take place on January 15, 2019.
Def.'s Opp'n to Mot. to Continue, Ex. A, ECF No.
23-1. In a letter dated January 11, counsel for Defendant
objected to each of the topics identified in the deposition
notice. See ECF No. 17-6. On January 14, counsel for
Defendant sent an email to Plaintiff's counsel stating
that neither he nor any representatives of Defendant would be
present for the January 15 deposition because of certain
objections to the proposed deposition topics as well as
concerns that Plaintiff's counsel was not admitted to
practice in the Western District of Virginia. Pl.'s Mot.
to Continue, Ex. 1, ECF No. 22-1. On that same day Defendant
filed a motion for a protective order seeking to limit the
scope of Plaintiff's proposed deposition. ECF No. 16. Ms.
Strandjord and Benjamin Boscolo, another attorney with CIL,
were admitted to practice before this Court on January 16,
2019. Each entered an appearance in this matter on the
following day, ECF Nos. 19, 21, at which time they filed the
Motion to Continue.
January 20, 2019, Defendant filed a Motion for Summary
Judgment. ECF No. 26. In its corresponding brief, Defendant
argued that it was entitled to judgment as a matter of law
because Plaintiff did not have evidence of an actionable
defect in Defendant's parking lot and, even if she did,
Plaintiff's contributory negligence barred her from
recovery under Virginia law. See generally
Def.'s Br. in Supp. of Mot. for Summ. J., ECF No. 27.
Though Plaintiff has filed a brief opposing Defendant's
motion on the merits, ECF No. 29, Plaintiff also seeks relief
under Rule 56(d), asking the Court to defer consideration of
the motion pending further discovery necessary to justify her
opposition, ECF No. 30.
motion to modify a scheduling order may be granted
“only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4); see also Kincaid
v. Anderson, No. 1:14cv27, 2016 U.S. Dist. LEXIS 16662,
at *3 (W.D. Va. Feb. 11, 2016). Where, as here, the motion is
filed after the deadline has already expired, the Court may
extend the time “if the party failed to act because of
excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). In
determining whether there has been “excusable neglect,
” the Court considers “the danger of prejudice to
the [non-movant], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of the
movant, and whether the movant acted in good faith.”
Thompson v. E.I. DuPont de Nemours & Co., 76
F.3d 530, 533 (4th Cir. 1996) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assoc. Ltd. P'Ship, 507 U.S.
380, 395 (1993)). Excusable neglect is “at bottom an
equitable” and “flexible” concept that
should take into account “all relevant circumstances
surrounding the party's omission.” Pioneer Inv.
Servs., 507 U.S. at 395-96.
primarily argues that she requires a continuance and
extension of the discovery deadline to conduct depositions
because her original counsel of record left the firm
shortly before the close of discovery and anticipated date
for depositions of Defendant's representatives. Defendant
faults Plaintiff's counsel for not handling this
transition better. Defendant's position is not reasonable
under the circumstances. The information before the Court
shows that Plaintiff's new counsel acted expeditiously to
become acquainted with the case, prosecute discovery, and get
admitted to this Court all in the matter of a few weeks.
See Def.'s Br. in Supp. of Mot. for Protective
Order, Exs. D, E, H, ECF Nos. 17-4, 17-5, 17-8.
also argues that Plaintiff was responsible for failing to
secure depositions of its representatives prior to the
expiration of the discovery deadline because she did not
properly notice the depositions. The only deficiency in the
notice, however, is that it was not signed. Fed.R.Civ.P.
30(a)(1), (b)(1), (b)(6); see also Fed. R. Civ. P.
45(a)(3) (“An attorney . . . may issue and sign a
subpoena if the attorney is authorized to practice in the
issuing court.”). This deficiency was excusable.
Plaintiff acted in good faith to try and secure all discovery
ahead of the discovery deadline. She submitted written
discovery requests seeking the identities of individuals
“responsible for inspecting, maintaining, and/or
remediating any dangerous condition on the [Defendant's]
premises, ” Def.'s Br. in Supp. of Mot. for
Protective Order, Ex. A, ECF No. 17-1, allowed Defendant an
extension in responding to those requests, which Defendant
appears to have exceeded, id. Exs. C, D, ECF Nos.
17-3, 17-4, and she informally agreed with Defendant to
depose its representatives at a date ahead of the discovery
cutoff, see id., Ex. D. Though Plaintiff admittedly
failed to produce a proper deposition notice, such a failure
was not “within [her] reasonable control.”
Thompson, 76 F.3d at 533 (internal quotation
omitted). Indeed, Mr. Breeding's departure from CIL only
days prior to the discovery deadline left CIL without any
attorneys who could issue a valid notice prior to the
scheduled deposition date. Under such circumstances, the
Court readily finds Plaintiff's neglect excusable.
See Pioneer Inv. Servs., 507 U.S. at 388 (explaining
that the “excusable neglect” standard clearly
permits a court, “where appropriate, to accept late
filings caused by inadvertence, mistake, or carelessness, as
well as intervening circumstances beyond the party's
control”). It further appears that Ms. Strandjord and
Mr. Boscolo acted expeditiously to secure admission to the
Western District after Mr. Breeding left, but they were
unable to do so until the discovery deadline had expired.
also asserts that it “should not be prejudiced by
Plaintiff's counsel's office's failure to account
for the persistent possibility of an attorney's departure
and resulting inability to lawfully practice in a District
where an active case was pending.” Def.'s Opp'n
to Mot. to Continue ¶ 8, ECF No. 23. Certainly, a better
approach would have been for Plaintiff's counsel to staff
the case with more than one attorney who is admitted to
practice in this district. Nevertheless, I find it
unreasonable to penalize a plaintiff for the apparently
unforeseen personnel changes at the law firm that represents
Defendant's position is eroded given that it removed the
action, without Plaintiff's consent, from the local
jurisdiction in which she originally chose to file. Moreover,
the Court finds Defendant's claims of prejudice to be
exceedingly weak considering that its counsel cancelled
depositions the day before the close of discovery,
effectively foreclosing Plaintiff's ability to conduct
discovery that she clearly was counting on to present her
Court also finds that an extension of the discovery deadline
is warranted under Rule 56(d). “As a general rule,
summary judgment is appropriate only after ‘adequate
time for discovery.'” Evans v. Tech.
Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.
1996) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)). Rule 56(d) permits the Court to allow
additional time for a party against whom judgment is sought
to take discovery where that party “shows by affidavit
or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition” to a summary
judgment motion. See Fed. R. Civ. P. 56(d)(2).
has provided a sworn declaration from her counsel of record,
appended to her Motion for Discovery under Rule 56(d). ECF
No. 30-1. In pertinent part, Ms. Strandjord states that
Plaintiff “sought discovery of Defendant's
policies, procedures, practices, and inspection and
maintenance records regarding the parking lot” where
she was injured and scheduled the deposition of
Defendant's “corporate representative, as well as
an employee responsible for parking lot inspection and
maintenance, with the agreement of counsel for
Defendant.” Id. ¶¶ 5- 6.
Nevertheless, just one day before the scheduled depositions,
counsel for Defendant declined to attend and filed a motion
seeking protection from the depositions and discovery of
certain information sought by Plaintiff. Id.
¶¶ 8-9. As a result, Plaintiff has neither
“been provided with any records, maintenance logs, or
inspection reports from Defendant, ” nor had the
opportunity to depose “anyone representing or
working” for Defendant. Id. ¶ 11. This
information, she argues, is critical to address factual
questions, such as whether the alleged hazard on
Defendant's property was open and obvious and
Defendant's knowledge and procedure with respect to
parking lot inspection and maintenance. Id. ¶
Court agrees that the discovery Plaintiff seeks could be
“essential to justify [her] opposition” to the
Defendant's motion for summary judgment. Fed.R.Civ.P.
56(d). First, a large portion of Defendant's motion
pertains to whether the harm to Plaintiff was
“reasonably foreseeable” or whether the allegedly
dangerous condition on the property was “hidden.”
Def.'s Br. in Supp. of Mot. for Summ. J. 6-7. Though
Defendant relies heavily on selected portions of
Plaintiff's deposition testimony to conclude that she
“has failed to show the existence of a triable fact
regarding whether the pothole constituted a danger about
which Costco had a duty to warn her, ” Plaintiff has
not been able to secure any records, maintenance logs, or
inspection reports, which might shed more light-and perhaps
refute the Defendant's position-on certain aspects of the
pothole. Moreover, Defendant has identified Peter Barney and
Bill Wallace, two of the individuals who Plaintiff intended
to depose, as “Costco employees who have specific
knowledge of Plaintiff's alleged incident.”
See Def.'s Br. in Supp. of Mot. for ...