The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GLF CONSTRUCTION CORP.,
Plaintiff,
v. Case No. 8:17-cv-1932-T-36AAS
FEDCON JOINT VENTURE,
et al.,
Defendants.
___________________________________/
ORDER
FEDCON Joint Venture and Western Surety move to compel GLF
Construction Corporation to complete the depositions of Mr. Francesco Senis, Mr.
Lorenzo Ellis, and Mr. Patrick Bannon. (Doc. 113). GLF opposes the motion to
compel for Mr. Senis and Mr. Ellis. (Doc. 118). GLF moves to compel FEDCON to
allow the completion of Mr. Ben Nolan’s deposition in return for making Mr. Bannon
available for more depositions.1 (Id.). FEDCON opposes GLF’s motion urging either
completing the three witnesses’ depositions or closing discovery. (Doc. 125).
The original case management order set the discovery deadline for November
9, 2018. (Doc. 25). The court generously extended the discovery deadline twice. (Doc
46, 52). At the May status conference, the court noted the parties could agree among
1 GLF’s moved to compel the completion of Mr. Nolan’s deposition within its response to
FEDCON’s motion to compel. (Doc. 118). The rule requires affirmative relief be made in a
separate motion to the court and not in a response to a pending motion. Fed. R. Civ. P. 7(b);
see Posner v. Essex Ins. Co., 178 F.3d 1209, 1222 (11th Cir. 1999). Nevertheless, the court’s
ruling also denies GLF’s motion to compel.
themselves to continue to take depositions even though the April discovery deadline
passed. (Doc. 126, 3:18–25). However, the court explained the parties should not
request additional relief from the court “based upon [their] need to take those
depositions.” (Id. at 3:25, 4:1). In other words, the court repeated what the original
case management—the terms of which were incorporated by reference in the two
subsequent case management orders—already cautioned: “The Court may deny as
untimely all motions to compel filed after the discovery deadline.” (Doc. 25 at 3).
During the May conference, the court indicated the parties could stipulate to
another thirty days from that status conference to complete discovery. (Doc. 126, 6:5–
6). The court told the parties if they could not agree to an extended timeframe to take
additional discovery, then the parties should file a motion so the court could decide if
a further extension of the discovery deadline is warranted. (Id. at 6:6–7). The parties
then delayed two months before filing the instant motions.
The case is set for a nonjury trial during the court’s October trial term, which
begins on October 7, 2019. (Doc. 52). The court has “broad discretion over the
management of pre-trial activities, including discovery and scheduling.” Johnson v.
Board of Regents of University of Georgia, 263 F.3d 1234, 1269 (11th Cir. 2001).
Often, the court is flexible with discovery deadlines to allow parties to prepare for
trial, but parties are not to abuse this generosity. Here, the parties not only test the
court’s flexibility, but also seek the court to manage their belated discovery even
though they have been cautioned multiple times that parties who proceed with
discovery after the court’s deadline do so at their own risk. The court’s flexibility has
reached its limit, and this discovery dispute is untimely. The twice extended
discovery deadline passed months ago, summary judgment motions are fully briefed,
and the nonjury trial is less than two months away.
Accordingly, FEDCON and Western Surety’s motion to compel to complete the
witnesses’ depositions is DENIED. Also, GLF’s motion to compel completion of Mr.
Nolan’s deposition (imbedded in its response to FEDCON and Western Surety’s
motion) is DENIED.
ORDERED in Tampa, Florida, on August 23, 2019.
Atrranda, Ayneth. Sarena.
AMANDA ARNOLD SANSONE |
United States Magistrate Judge