The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PB LEGACY, INC.,
and TB FOODS USA, LLC,
Plaintiffs,
v. Case No. 2:17-cv-9-JES-NPM
AMERICAN PENAEID, INC. and
ROBIN PEARL,
Defendants,
and AMERICAN MARICULTURE, INC.,
Defendant/Counterclaimant,
v.
KENNETH GERVAIS,
RANDALL AUNGST, and
PB LEGACY, INC.,
Counterclaim Defendants.
ORDER
A jury trial in this nearly five-year-old, trade-secret-misappropriation action
is specially set for November 1, 2021. (Doc. 354). And currently before the Court is
Plaintiff TB Foods USA, LLC (“TB”)’s motion to compel (Doc. 364), Defendants’
response in opposition (Doc. 376), and TB’s reply (Doc. 379). While TB filed this
motion on September 27, 2021 (just five weeks before trial), it essentially complains
that Defendants failed to produce documents responsive to a first request for
production served on December 20, 2017, a second request for production served
on February 22, 2019, and a third request for production served on May 22, 2019,
and that the Defendants also failed to provide updated information about their
finances for use at trial.
Discovery in this action closed on September 3, 2019. (Doc. 204). And
motions to compel filed after the discovery deadline are presumptively untimely.
But because Defendants have agreed to provide updated information about their
finances, and have no objection to providing certain board-meeting documents, TB’s
motion to compel is granted in part simply to set a deadline for the Defendants to
produce these documents.
I. Procedural Background
The operative complaint in this action was filed on January 26, 2017. (Doc.
20). Pursuant to Rule 16 of the Federal Rules of Civil Procedure, which directs the
Court to issue an order limiting the time to complete discovery, the original case
management and scheduling order (CMSO) set August 7, 2018, as the discovery
deadline. (Doc. 75, p.1). In April 2018—four months after the service of TB’s first
request for production—the parties moved to amend the scheduling order. (Doc.
100). The motion represented that the parties were working cooperatively to resolve
document production issues, but that witnesses in this dispute were scattered
throughout North America and Asia. Granting the motion, the Court pushed the
discovery deadline back ten months to June 28, 2019. (Doc. 105).1 Importantly, the
Court’s CMSOs expressly caution: “The Court may deny as untimely all motions to
compel filed after the discovery deadline.” (Doc. 75, p. 2; Doc. 105, p. 2).2
In April 2019—two months after the service of TB’s second request for
production—TB moved for a 30-day extension of its expert disclosure deadline from
April 29, 2019, to May 29, 2019. Plaintiff sought the extension of time to allow for
the review of genetic and breeding records concerning the shrimp at issue in this
matter. (Doc. 170, p. 2). Opposing the motion, Defendants argued, among other
things, that TB did not explain why it had failed to review the genetic and breeding
records in the two years since the filing of the lawsuit. Id. Nevertheless, the Court
granted the motion and pushed the discovery deadline back to July 22, 2019. (Doc.
170).
About one week after the service of TB’s third request for production, the
parties mediated on May 28, 2019. (Doc. 198). The next day, they jointly requested
a 45-day extension of the discovery deadline. (Doc. 199). The parties explained that
they had made substantial progress on their negotiations and that they wanted to
1 The Court’s May 24, 2018 scheduling order also explained that it wanted this action tried by
December 2020; that is, within three years of its initiation. (Doc. 105, p.1).
2 This same cautionary note is repeated verbatim in the parties’ case management reports filed on
February 24, 2017, April 30, 2018, and January 7, 2020. (Docs. 65, 104, 278).
capitalize on the good will and momentum by having their principals meet in Hong
Kong in June 2019 to potentially resolve the matter. If that was unsuccessful, they
would disclose and depose their respective experts during the summer of 2019, and
discovery would close in early September. Granting the motion, the Court issued an
amended CMSO providing for a discovery cutoff of September 3, 2019. (Doc. 204).
The parties never requested, and the Court never provided another extension of this
discovery deadline. So discovery closed more than two years ago.
Three months after the close of discovery, the parties filed a joint motion for
status conference stating a “need to address several items that have arisen” and to
“receive a determination from the Court as to whether the February [2020] trial cycle
is still appropriate.” (Doc. 264, p. 2). Notably missing from this joint motion is the
mention of any outstanding document-production issues. (See generally, Doc. 264).
At about the same time, a previously entered bankruptcy stay as to Counterclaim
Defendant Randall Aungst was lifted (Doc. 267), so the Court directed the parties to
confer and file a second amended case management report discussing any discovery
issues and outlining a proposed schedule for future events in the case. (Doc. 268).
After the parties conferred, they jointly filed their second amended CMR on
January 7, 2020. (Doc. 278). There, the parties reported that discovery was
complete. (Doc. 278, p. 2). In fact, they reported that not only was their dispositive-
motion practice complete, but that they had completed the process of meeting in
person to prepare their joint final pretrial statement. Id. Thus, according to the
schedule proposed in the parties’ second amended CMR, the only outstanding items
as of January 7, 2020, were the filing of Daubert motions, other motions to exclude
evidence, and the joint final pretrial statement; and then conducting the final pretrial
conference.
Of particular relevance to resolving the instant motion, the parties’ second
amended CMR identified only two “[u]nresolved issues” for the Court to address:
whether Aungst would be permitted to file a motion for summary judgment, and
whether the trial should be reset for March or April of 2020 (Doc. 278, pp. 4-5).
Given ample opportunity to do so and coming nearly eight months after the final
request for production, no one raised any concerns in this CMR about any document-
production issues. (Doc. 278, p. 4). In response to the CMR, the Court issued an
order on January 8, 2020, resolving the two outstanding issues, providing deadlines
for the unfinished tasks, and setting this action for trial in May 2020. (Doc. 279).
The Court conducted multiple status conferences in the nearly two years since,
and due to the COVID-19 pandemic and for other reasons, the Court entered several
orders resetting the trial term. (Docs. 298, 299, 322, 325, 337, 338, 352, 355). After
all of that, TB now presents the Court with a motion to compel documents responsive
to the requests it served in 2017 and 2019, and to compel the Defendants to
supplement their prior production with documents that have been created since, such
as recent balance sheets and income statements.
II. TB’s Three Requests for Production and the Current Motion to Compel
By TB’s account, the Defendants produced tens of thousands of pages of
documents in response to the first request for production. (Doc. 106, pp. 4-5). Mostly
displeased with the form of production, TB filed a motion to compel in July 2018
(Doc. 106), and an amended motion in September 2018 (Doc. 124). Following
conferences between the parties and additional productions by the Defendants, TB
advised the Court on October 5, 2018, that it would file a second amended motion
to compel if necessary. (Doc. 127). The Court gave TB until December 14, 2018, to
do so (Doc. 129), but no motion was filed. Apparently, the parties had reached an
accord (Doc. 364, p. 3), and TB believes the Defendants failed to fully honor it. But
TB does not explain why any purported failure to abide by the accord could not have
been presented to the Court prior to the September 2019 discovery deadline.
As for TB’s second request for documents, the Defendants responded on
March 25, 2019, and stated in part that certain responsive documents had been
produced in response to TB’s first request for documents. (Doc. 364, p. 4). TB claims
this statement was false. But TB would have known this back in March 2019, and it
makes no attempt to explain why it could not have presented this issue to the Court
before the September 2019 discovery deadline.
And as for TB’s third request for documents, the Defendants responded on
August 9, 2019, and again, they stated in part that certain responsive documents had
been produced in response to TB’s first request. (Doc. 364, p. 4). TB claims this
statement was false too. But TB would have known this in August 2019, and as with
its other requests, it makes no attempt to explain why it could not have presented
this issue to the Court before the September 2019 discovery deadline.
Apart from seeking the production of documents that TB could have moved
to compel prior to the September 2019 discovery cutoff, the motion to compel also
seeks the production of agendas and minutes for Defendants’ board meetings held
since that time, and Defendants’ recent financial statements, such as balance sheets
and income statements for their most recent fiscal year that ended on July 31, 2021.
Supported by a declaration from Robin Pearl—who is both an individual
defendant in this action and a representative of the other two defendants, American
Mariculture, Inc. (“AMI”) and American Penaeid, Inc. (“API”)—Defendants state
that all responsive documents in their possession, custody, control have been
produced; that no additional agendas or minutes for board meetings after 2019 exist
because formal meetings were not held and such documents were not created; and
that they have no objection to producing updated financial statements, but that the
statements for their most recent fiscal year ending July 31 were not yet available as
of October 5, 2021.
III. Legal Analysis
District courts have broad discretion when managing their cases to ensure a
timely and orderly resolution. Chrysler Intern. Corp. v. Chemaly, 280 F.3d 1358,
1360 (11th Cir. 2002). And the discovery deadline means what it suggests; namely,
all discovery must be completed by that date. MIDDLE DISTRICT CIVIL DISCOVERY
HANDBOOK at § I(F).
Suggesting that Defendants’ initial disclosures served on April 20, 2017, are
not consistent with Defendants’ discovery responses served in 2018 and 2019, TB
seeks to compel the production of documents responsive to its requests for breeding
and genetic records concerning the shrimp at issue in this action, including DNA
work conducted by a Dr. Perez, as well as documents responsive to its requests for
records concerning the disposition of Plaintiff PB Legacy’s shrimp (which led to the
filing of this suit in January 2017). But TB could have presented these issues to the
Court by December 14, 2018, as previously ordered (Doc. 129).3 And while TB was
aware in August 2019 of the purported shortcomings in Defendants’ document
production that it now complains of, it let the September 2019 discovery deadline
pass without mentioning them to the Court. To the contrary, in January 2020, TB
represented that discovery was complete. (Doc. 278). So with respect to documents
3 While TB’s second and third sets of requests for production were served in 2019, the subsequent
requests for disposition, breeding, and genetic records share much in common with the requests
contained in the first set.
like these, the motion to compel is exceedingly untimely (and inappropriately
disruptive) and must be denied. See Eli Research, LLC v. Must Have Info. Inc. No.
2:13–cv–695–FtM–38CM, *1-2 (M.D. Fla. Aug. 6, 2015) (denying motion to
compel filed three days after the discovery deadline; reasoning: “it is irrelevant
whether the motion is filed three days or three weeks after the deadline. The motion
is untimely.”).
As for the agendas and minutes for board meetings, TB states it does not have
any responsive documents for any meetings held after May 2019. The Defendants
respond that “there are no board meeting minutes or agenda from post-2019 to
produce.” (Doc. 376-1, p. 4). This appears to leave a gap for any meetings held from
June to December 2019, and Defendants interpose no objection to TB’s request for
them. So to the extent any such documents exist, the Defendants shall produce them.
Likewise, Defendants state they will “produce additional financial documents
when they become available.” (Doc 376, p. 8). Since their fiscal years end on July
31 each year, they must provide their financial statements for the 2019-2020 fiscal
year if not already provided, and their financial statements for the 2020-2021 fiscal
year as well.
Accordingly, TB Food’s motion to compel is GRANTED IN PART. By
October 29, 2021, the Defendants shall produce the agendas and minutes for any
board meetings conducted from June to December 2019, and the financial statements
for their 2019-2020 and 2020-2021 fiscal years ending July 31.
ORDERED in Fort Myers, Florida on October 22, 2021.
Liebe Ee Aine ML.
NICHOLAS P. MIZEL
UNITED STATES MAGISTRATE JUDGE
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