Simmons v. USI Insurance Services LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MATTHEW SIMMONS, SHEILA

MURRAY, JACK MITCHELL,

and EMILY CARTER,

Plaintiffs,

v. Case No. 8:23-cv-201-TPB-AAS

USI INSURANCE SERVICES LLC

and USI ADVANTAGE CORP.,

Defendants.

_________________________________________/

USI INSURANCE SERVICES LLC,

Counter-Plaintiff,

v.

MATTHEW SIMMONS, JACK MITCHELL,

and SOUTHEAST SERIES OF LOCKTON

COMPANIES, LLC.,

Counter-Defendants.

___________________________________________/

ORDER

Counter-Plaintiff USI Insurance Services LLC (USI) moves to reopen

discovery to conduct two new depositions and reopen two other depositions

based on the production of documents ordered by the court after an in camera

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review. (Docs. 131, 151).1 Counter-Defendants Southeast Series of Lockton

Companies, LLC (Lockton SE), Matthew Simmons, and Jack Mitchell oppose

USI’s motion. (Docs. 143, 153).2

I. BACKGROUND

On January 25, 2023, several of USI’s employees resigned and began

work at Lockton SE on the same day. (Doc. 73, pp. 5–6). Lockton SE referred

to the recruitment of employees as “Project Buccaneer.” (See Doc. 131, p. 6).

Former USI employees Matthew Simmons, Jack Mitchell, Sheila Murry, and

Emily Carter sued USI in the Thirteenth Judicial Circuit for Hillsborough

County requesting declaratory judgment that their USI employment

agreements are void and unenforceable. (See Doc. 1-3). On January 27, 2023,

USI removed the complaint to this court, and USI counterclaimed. (Docs. 1, 3).

In its counterclaim, USI sued Mr. Simmons and Mr. Mitchell for breach of their

employment agreements and fiduciary duties and sued Lockton SE for tortious

interference by its inducement of the breach and for aiding and abetting the

alleged breach of fiduciary duties. (Id.).

On August 11, 2023, USI moved the court to review in camera documents

on Lockton SE’s Amended Privilege Log. (Doc. 89). The court reviewed forty

1 Sealed Doc. 151 is the unredacted version of Doc. 131.

2 Sealed Doc. 153 is the unredacted version of Doc. 143.

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documents selected by USI and ordered Lockton SE to produce eighteen of the

forty documents but later reduced that number to seventeen documents. (See

Docs. 102, 110). Lockton SE produced these seventeen documents and others

between October 24, 2023 and November 10, 2023. (See Docs. 102, 110). The

parties’ discovery deadline was October 23, 2023 (Doc. 72). The October 20,

2023 order addressing the production required after the in camera review

reminded the parties that the October 23 deadline was not extended and

explained “this limited discovery is permitted past the deadline for purposes of

the court’s continued in camera review and resolution of this document

production dispute.” (Doc. 102, p. 10).

In the instant motion, filed over one month later, USI contends the

compelled documents provide new information relevant to its claims, and it

would be unfairly prejudiced by its inability to take deposition testimony from

the authors of these documents. (Docs. 131, 151). Specifically, USI requests

leave to: (1) continue the depositions of Anand Shelat, Vice President of

Financial Planning and Analytics at Lockton SE, and Hiram Marrero, Global

Growth Officer of Lockton SE’s parent company (Lockton Parent); and (2)

depose Troy Cook, Global Chief Financial Officer of Lockton Parent, and John

Davis, Vice President and Director of Series Finance of Lockton Parent, to

address new matters related to the documents compelled after the court’s in

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camera review. (Id.).

Counter-Defendants oppose USI’s request to reopen discovery to take

four additional depositions. (Docs. 143, 153). They argue USI had knowledge

of this “new” information before the close of discovery and cannot demonstrate

good cause or excusable neglect in requesting leave to conduct these

depositions after the close of discovery and within months of trial. (Id.).

II. ANALYSIS

“A party seeking the extension of an already-expired scheduling order

deadline must show both good cause and excusable neglect.” Payne v. C.R.

Bard, Inc., 606 F. App’x 940, 944 (11th Cir. 2015) (citing Fed. R. Civ. P. 6(b)(1)

and Fed. R. Civ. P. 16(b)(4)). To establish “good cause,” the party moving to

reopen discovery must show that the court’s already-expired scheduling order

deadline could not be met despite the party's “diligence.” See Id. A moving

party cannot establish the diligence necessary to show good cause if it had full

knowledge of the information before the scheduling deadline passed or if the

party failed to seek the needed information before the deadline. See Williams

v. Blue Cross & Blue Shield of Fla., Inc., No. 3:09-cv-225, 2010 WL 3419720, at

*1 (N.D. Fla. Aug. 26, 2010).

The “excusable neglect” standard is “more rigorous” than the “good

cause” standard. See Hughley v. Lee County, Ala., No. 3:15-CV-126, 2015 WL

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4094461, at *1 (M.D. Ala. June 9, 2015). In determining whether a party has

shown excusable neglect, courts consider “(1) the danger of prejudice to the

nonmovant; (2) the length of the delay and its potential impact on judicial

proceedings; (3) the reason for the delay, including whether it was within the

reasonable control of the movant; and (4) whether the movant acted in good

faith.” EarthCam., 703 F. App’x at 813 (citing Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Primary importance

is accorded to the absence of prejudice to the nonmoving party and to the

interest of efficient judicial administration. See Ashmore v. Sec’y, Dep’t of

Transp., 503 F. App’x 683, 685 (11th Cir. 2013) (citing Cheney v. Anchor Glass

Container Corp., 71 F.3d 848, 850 (11th Cir. 1996)). The Eleventh Circuit has

“often held that a district court has not abused its discretion by holding the

litigants to the clear terms of its scheduling order.” See Ashmore, 503 F. App’x

at 685.

The documents Lockton SE produced to USI as a result of the court’s in

camera review orders consisted of: (1) thirty-six communications between

outside counsel and the plaintiffs about scheduling meetings; (2) eight internal

communications about scheduling meetings; (3) nine internal communications

transmitting financial models and scheduling meetings to discuss those

models; (4) five communications between the plaintiffs and Lockton SE,

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including Mr. Simmons and Mr. Mitchell’s term sheets; (5) four redacted

financial models; and (6) one junk attachment to an email. (See Docs. 102, 111;

Doc. 143-1, ¶ 20). USI claims these compelled documents contain “new”

information about a “loan” Lockton SE obtained from Lockton Parent and

information about Lockton Parent’s employees review of the financial models

Lockton SE prepared, namely, Mr. Davis, Mr. Cook, and Mr. Marrero. (See

Docs. 143, 153)

Discovery began on February 24, 2023, when the court ordered the

parties to commence expedited discovery. (Doc. 36). As early as March 2023,

Lockton SE produced documents that identified Mr. Davis and Mr. Cook as

recipients of financial modeling information. For example, the March 22, 2023

production from Lockton SE contained redacted financial models that were

emailed from Mr. Shelat to Mr. Davis and Mr. Cook, among other Lockton SE

and Lockton Parent employees.3 (See Doc. 143-1, ¶ 22; Doc. 153-1). On March

30, 2023, Manoj Sharma, Lockton SE’s Chief Operating Officer, testified he

discussed Lockton SE’s financing with Mr. Davis. (Doc. 143-1, ¶ 23; Doc. 153-

2, pp. 68:13–70:16; 71:2–71:20; 72:8–74:7). Mr. Sharma testified again on April

12, 2023 at the evidentiary hearing on USI’s motion for preliminary injunction

3 On June 29, 203, Lockton SE also produced several virtual meeting invitations

regarding “Project Buccaneer” to employees of both Lockton SE and Lockton Parent.

(See Doc. 143-1, ¶ 24, Doc. 153-3).

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that Lockton SE secured a loan from Lockton Parent to finance “Project

Buccaneer.” (See Doc. 76, p. 129:8–18).

Almost two months after the close of discovery and with the summary

judgment motions fully briefed, USI now requests that this court permit it to

take four additional depositions, including an apex deposition,4 on matters

irrelevant to the legal issues before the court on summary judgment and

unnecessary for this action to fairly proceed to trial. USI can show neither the

good cause nor excusable neglect necessary for the court to reopen discovery to

depose Mr. Cook, Mr. Davis, and to reopen the depositions of Mr. Marrero and

Mr. Shelat. See Sweet v. Lockheed Martin Corp., No. 1:08-CV-2094-WBH-SSC,

2009 WL 10664952, at *3 (N.D. Ga. Aug. 21, 2009) (denying motion to reopen

discovery where movant did not dispute they “had the opportunity to take the

depositions . . . during the [] discovery period but chose not to do so”); see also

In re 3M Combat Arms Earplug Prod. Liab. Litig., No. 3:19-MD-2885, 2021 WL

6327368, at *2 (N.D. Fla. Aug. 19, 2021) (holding the plaintiffs would be

4 The request to depose Mr. Cook is further complicated by the apex doctrine. See,

e.g., Sun Cap. Partners, Inc. v. Twin City Fire Ins. Co., 310 F.R.D. 523, 527, 529 (S.D.

Fla. 2015) (granting protective orders and precluding depositions of CEO and general

counsel); Skytruck Co., LLC v. Sikorsky Aircraft Corp., No. 2:09-CV-267-FTM-99SPC,

2011 WL 13141023, at **1–2 (M.D. Fla. May 11, 2011) (granting protective order and

precluding deposition of President and CFO). Mr. Cook is the Global Chief Financial

Officer, and a Board Member for Lockton, Inc. USI has not established Mr. Cook has

any unique knowledge of the facts at issue or information that could not be obtained

by other less intrusive means.

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prejudiced by the costs and burdens of preparing for and taking a deposition

out of time in the middle of preparing for trial, and “[t]his alone is a sufficient

basis to deny Defendants’ motion”).

Il. CONCLUSION

USI’s motion to reopen discovery to conduct limited depositions based on

production of in camera documents (Docs. 131, 151) is DENIED.

ORDERED in Tampa, Florida on January 25, 2024.

Aranda. Agneh Sarioug

AMANDA ARNOLD SANSONE

United States Magistrate Judge