Green v. City of Buffalo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

KEVIN GREEN,

JULIAN PEREZ,

DECISION

Plaintiffs, and

v. ORDER

CITY OF BUFFALO,

BATTALION CHIEF RONALD K. BOURGEOIS, 23-CV-1166-LJV(F)

Individually and in his Official Capacity as

Battalion Chief,

COMMISSIONER WILLIAM RENALDO,

Individually and in his Official Capacity as

Commissioner,

DEPUTY COMMISSION RAMO SUAREZ,

Individually and in his Official Capacity as

Deputy Commissioner,

MAYOR BYRON BROWN,

Defendants.

_____________________________________

APPEARANCES: TIVERON LAW PLLC

Attorneys for Plaintiff

STEVEN M. COHEN, of Counsel

2410 North Forest Road, Suite 301

Amherst, New York 14068

HODGSON RUSS LLP

Attorneys for Defendants

JOSHUAN I. FEINSTEIN,

JOSHUA B. LEVITT,

ADAM W. PERRY, of Counsel

The Guaranty Building, Suite 100

140 Pearl Street

Buffalo, New York 14202-4040

In this § 1983 action, alleging race, gender and political discrimination in

connection with Plaintiffs' attendance and dismissal from a Buffalo Fire Academy

training program in 2020, by papers filed March 28, 2025, Plaintiffs move for an order

amending the current Scheduling Order to extend the time for completion of discovery.

(Dkt. 36) ("Plaintiffs' motion").1 Plaintiffs' motion is supported by the Attorney

Declaration of Steven M. Cohen, Plaintiffs' counsel (Dkt. 36-1) ("Cohen Declaration I").

According to Plaintiffs, during the course of seven depositions conducted by the parties

during March 2025 ("the March depositions"), 10 additional non-party witnesses were

identified whose depositions Plaintiffs assert are now required. Cohen Declaration I

(Dkt. 36-1) ¶¶ 8, 11; (Dkt. 42-5) (Copy of Letter by Steven M. Cohen to Defendants'

Attorney dated March 28, 2025) ("the Cohen Letter"). In the Cohen Letter Plaintiffs

identified Robert Jackson, Billy Lumadue, Jamie Matie, Morgan Walsh, Bridget Young,

Mary Jo Allis, Recruit Matthew Kieta, Shatorah Donovan, Joseph Tomizzi and

Firefighter William Miller as the newly discovered witnesses. See (Dkt. 42-5). Plaintiffs

also state that Plaintiffs' counsel recently learned from unidentified "witnesses" of

"potentially relevant documents" which require additional time for Plaintiffs to review.

Cohen Declaration I (Dkt. 36-1) ¶ 11; Cohen Letter (Dkt. 42-5) at 1. Plaintiffs do not

provide any facts as to when Plaintiff learned of the existence of such documents nor

has the source of such documents been disclosed to Defendants. Plaintiffs did not

request any specific period of time within which to complete such tasks.

Defendants oppose Plaintiffs' motion and in a cross-motion, filed April 14, 2025

(Dkt. 42), request the court preclude, pursuant to Fed.R.Civ.P. 37(c)( ("Rule 37(c)"), any

use, including at trial, of the 10 witnesses recently disclosed by Plaintiffs and any

documents referenced in the Cohen Letter and Cohen Declaration I ¶ 10. See

1 The first Scheduling Order, filed February 9, 2024, required discovery to be completed by January 24,

2025 (Dkt. 11); an Amended Scheduling Order filed January 10, 2025 (Dkt. 25) required all discovery to

be completed by February 28, 2025; by Text Order filed February 19, 2025, to accommodate Plaintiffs'

counsel's unavailability, all fact discovery was to conclude March 28, 2025 (Dkt. 27).

Defendants' cross-motion (Dkt. 41-1) at 11-15. Defendants also request an award of

Defendants' attorneys fees in connection with Defendants' opposition to Plaintiffs'

motion and in support of Defendants' cross-motion pursuant to Rule 37(c). Defendants'

Memorandum of Law (Dkt. 42-1) at 14-15. Defendants' opposition is predicated on the

fact that Plaintiffs have known of the existence of five of the putative witnesses --

Jackson, Kieta, Allis, Lumadue and Walsh -- for several years prior to the March

depositions, see Declaration of Joshua B. Levitt (Dkt. 42-2) ¶¶ 14-21, and that the

remaining witnesses were not, contrary to Plaintiffs' averment, revealed for the first time

during the March depositions. See Levitt Declaration ¶ 22 (averring that Young,

Donovan, and Tomizzi were first mentioned during depositions by Plaintiffs' attorney);

Matie's name does not appear in any deposition transcript nor is there any record of this

person being associated with the Buffalo Fire Academy. Id. ¶ 23 (referencing

Declaration of Paul Eason, Deputy Buffalo Fire Commissioner (Dkt. 41-14 ¶ 5).2

Further, Defendants point out that it is likely Plaintiffs have had access to the

unidentified documents well-prior to Plaintiffs' motion, see Levitt Declaration (Dkt. 42-2)

¶¶ 25-27, but that Plaintiffs failed to provide Defendants with any information concerning

the documents, particularly exactly when Plaintiffs acquired knowledge of their

existence, and including copies thereof. Levitt Declaration (Dkt. 42-2) ¶ 25. Defendants

assert that Jackson appeared on several occasions at Cohen's office with boxes of

documents which were examined by Cohen and others and that such gatherings

2 Firefighter Miller was mentioned at the deposition of Shannon Street, a non-party, only by Plaintiffs'

attorney, Mr. Cohen. See Defendants' Memorandum of Law (Dkt. 42-1) at 9. Plaintiffs do not dispute

Defendants' statement.

occurred in 2020, 2021 and 2022. See (Dkt. 42-8) Transcript of Deposition of Shannon

Street at 4, 7.

1. Plaintiffs' Motion.

Defendants therefore contend Plaintiffs cannot establish good cause for Plaintiffs'

motion as required by Fed.R.Civ.P. 16(b)(4). Defendants' Memorandum of Law (Dkt.

42-1) at 1 (citing Getman v. Vondracek, 731 F.Supp.3d 524, 529 (W.D.N.Y. 2024) ("In

the good cause analysis, 'the primary consideration is whether the moving party can

demonstrate diligence[,]'"); “The burden of showing diligence rests on the moving party.”

Id. "[I]t is plaintiff's burden to show good cause under Rule 16(b)(4)." Id.; Cardew v.

New York State Dept. of Corrections and Community Supervision, 743 F.Supp.3d 523,

527 (W.D.N.Y. 2024) (“[G]ood cause exists where the moving party is unable to comply

with a required deadline despite the exercise of due diligence.”). Whether diligence can

be established "is not answered by a narrow reference to what a party has (or has not)

done since the entry of the most recent scheduling order." Cardew, 743 F.Supp.3d at

527 ("[c]ourts routinely deny motions to amend [for lack of diligence] because 'good

cause may not be established where the facts . . . "were previously known to plaintiff."

Id. (quoting Wilkins v. Time Warner Cable, Inc., 10 F. Supp. 3d 299, 319 (N.D.N.Y.

2014) (quoting Alexander v. Westbury Union Free Sch. Dist., 829 F. Supp. 2d 89, 118

(E.D.N.Y. 2011)). The request therefore turns on whether the party seeking

amendment "had ample time to pursue the discovery that it now" seeks or "claims is

essential." Id. (quoting Burlington Coat Factory Warehouse Corp. v. Esprit De Corp.,

769 F.2d 919, 927 (2d Cir. 1985)).

In opposition to Defendants' cross-motion, Plaintiffs fails to rebut Defendants'

factual averments concerning Plaintiffs assertions that Plaintiffs' awareness of the

identity of the '10' new witnesses derived solely from the recent March depositions. See

Declaration of Steven M. Cohen (Dkt. 48) ¶ 4 ("Cohen Declaration II") ("The motion to

extend was not an 'eleventh-hour' tactic but rather a necessary procedural step

following recent depositions in March, during which previously unknown individuals with

potentially material knowledge were identified.") (underlining added). Based on the now

unrefuted statements to the contrary provided by Defendants, Plaintiffs' assertion

appear to lack any basis in fact. Nowhere in Plaintiffs' response to Defendants'

opposition and cross-motion do Plaintiffs attempt to rebut Defendants' representations

regarding Plaintiffs' long-term prior familiarity with Robert Jackson, Matthew Kieta, Mary

Jo Allis (Plaintiff Perez's mother), Billy Lumadue, or Morgan Walsh. Nor do Plaintiffs

make any effort to rebut Defendants' descriptions of Bridget Young, Shatorah Donovan,

Joseph Tomizzi or Firefighter William Miller as having been identified not by any

deponent but by Plaintiffs' counsel during the depositions supporting that Plaintiffs had,

contrary to Plaintiffs' assertions, prior knowledge of the existence of such witnesses well

before the March depositions and that, contrary to Plaintiffs' statement in the Cohen

Letter, Ms. Matie's name does not appear in any of the depositions. See Broad v. DKP

Corp., 182 F.3d 898, 898 (2d Cir. 1999) (concluding the plaintiff, by failing to defend his

assertion of diversity jurisdiction in response to the defendant’s motion to dismiss for

lack of jurisdiction, conceded to the defendant’s argument that there was a defect in the

jurisdictional facts). In that connection, Plaintiffs also failed to timely disclose the

identity of these witnesses as required by Fed.R.Civ.P. 26(a)(1)(A)(i) and 26(e)(1).

Thus, the court finds that Plaintiffs failed to exercise reasonable diligence in taking the

depositions of these 'new' witnesses despite having "ample time and opportunity" to do

so. See Baburam v. Federal Express Corporation, 318 F.R.D. 5, 8 (E.D.N.Y. 2016)

(denying the plaintiff’s request to extend discovery where the requesting party failed to

establish that despite due diligence, discovery could not be timely completed).

Courts have denied motions to amend under similar circumstances. See

Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 927-28 (2d

Cir. 1985) (denying as frivolous plaintiff’s motion to extend discovery, made three

months after defendants moved for summary judgment, so as to depose additional

witnesses whose identities were known to the plaintiff prior to the filing of the summary

judgment motion, stating, “A party who both fails to use the time available and takes no

steps to seek more time until after a summary judgment motion has been filed need not

be allowed more time for discovery absent a strong showing of need.”); Apace

Communications, Ltd. v. Burke, 2012 WL 6681785, at * (W.D.N.Y. Dec. 21, 2012)

(denying plaintiff’s motion to extend discovery made after the discovery deadline’s

expiration where the plaintiff sought to depose a witness whose identity was known to

the plaintiff prior to the deadline yet the plaintiff made no attempt to contact the witness

and thus did not act with due diligence); Baburam, 318 F.R.D. at 8 (plaintiff’s counsel’s

motion after the close of discovery to extend the deadline for discovery to permit taking

four additional depositions was denied where the plaintiff’s counsel was aware for

months of the identities of the witnesses whose depositions were sought, but failed to

explain why the depositions could not be timely scheduled).

The same may be said of Plaintiffs' supposed need to review the documents

Plaintiffs allegedly recently acquired access to. As Defendants surmise, these

documents were previously made available to Plaintiffs by Robert Jackson. See Levitt

Declaration (Dkt. 42-2) ¶ 27 (citing deposition of Shannon Street during which Plaintiffs'

counsel recalled that Jackson provided the documents to Plaintiffs' counsel during

meetings conducted with Plaintiffs' counsel in 2020, 2021, and 2022). See Transcript of

Shannon Street Deposition (Dkt. 42-8) at 4, 7). Moreover, Plaintiffs fail to assure that

the documents contain relevant information. See Cohen Declaration I (Dkt. 36-1) ¶ 10

("In addition, this office learned of additional potentially relevant documents in speaking

with witnesses.") (underlining added). That Plaintiffs failed to more timely ascertain

whether the alleged documents are even relevant to Plaintiffs' claims despite the

repeated opportunity to do so well-prior to Plaintiffs' motion, cuts against finding

Plaintiffs exercised due diligence with respect to the documents. Finally, Plaintiffs'

assertion that Plaintiffs' "conduct is entirely consistent with the letter and spirit of the

Federal Rule [of Civil Procedure] which contemplate an evolving discovery process,"

Cohen Declaration II ¶ 5, is mistaken. If this were so, it would render Rule 16(b)(4) a

dead letter contrary to the Second Circuit's clear admonition that "compliance with

discovery orders . . . is necessary to the integrity of our judicial process. A party who

flouts such orders does so at his peril." Update Art, Inc. v. Modiin Publ., Ltd., 843 F.2d

67, 73 (2d Cir. 1988). Moreover, Plaintiff fails to cite any authority for this novel

proposition and the court's research fails to reveal any.

In Plaintiffs' response to Defendants' opposition and cross-motion, Plaintiffs

contend that Defendants' opposition to Plaintiffs' motion is "factually inaccurate." Cohen

Defendant II (Dkt. 48) at ¶ 4. However, as discussed, supra, at 3, 5, Plaintiffs fail to

rebut any of Defendants' detailed and averred facts demonstrating Plaintiffs had prior

knowledge of the witnesses Plaintiffs now seek to depose thus allowing Plaintiffs ample

time within which to depose, prior to the March 28, 2025 discovery cut-off date, such

witnesses. Such facts fully support finding Plaintiff's lack of diligence in belatedly

pursuing such discovery. Thus, there is no merit to Plaintiffs' contention that

Defendants' opposition to Plaintiffs' motion is factually inaccurate. Plaintiffs' reliance on

Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000), see (Dkt. 48-1) at

2, is also unavailing. In Parker, the court considered a motion to amend a pleading

pursuant to Fed.R.Civ.P. 15(a), a less stringent standard than Rule 16(b)'s good cause

test for a motion to amend a scheduling order, and, instead, affirmed the district court's

finding plaintiff had failed to demonstrate good cause for the proposed amendment to

the scheduling order. Parker, 204 F.3d at 340 ("'good cause' depends on the diligence

of the moving party"). Citing several state cases, Plaintiff again further asserts that

"litigation is dynamic, and discovery may need to evolve accordingly.” (Dkt. 48-1) at 4.

However, as discussed, supra, at 7, such a motion runs contrary to Rule 16(b).

Similarly, Plaintiffs' attempt, (Dkt. 48-1) at 3, to distinguish Freeman v. Guiliani, 2025

WL 81370 (S.D.N.Y. Jan. 13, 2025) and Ritchie Risk-Linked Strategies Trading

(Ireland), Ltd. V. Coventry First LLC, 280 F.R.D. 147, 156 (S.D.N.Y. 2012), adopting

report and recommendation (S.D.N.Y. Jan. 9. 2012), on which Defendants rely, see

(Dkt. 41-1) at 8, 9, 10, 11, (Dkt. 49) at 7, is also unavailing. Notwithstanding some

factual differences as Plaintiffs point out (Dkt. 48-1) at 3, the essential holding in both

cases is that withholding information of which the disclosing party was aware at that

time established by the scheduling order is a violation of Rule 26(e)(1)(A) and is subject

to sanctions pursuant to Fed.R.Civ.P. 37(c) and Rule 37(c)(1)(A) (preclusion and

authorizing an award of attorneys fees) to prevent "sandbagging" an adversary. See

Freeman, 2025 WL 81370, at *5; Ritchie, 280 F.R.D. at 156. Plaintiffs' response lacks

credulity: "the identities and relevance of these witnesses only emerged through

deposition testimony, . . . that unfolded at the end of the discovery timeline." (Dkt. 48-1)

at 3 (underlining added). This unsupported assertion files in the face of the undisputed

record which forcefully demonstrates, without contradiction by Plaintiffs, Plaintiffs' prior

awareness of both the witnesses' identities and the documents Plaintiffs' claim to have

only recently become aware. As such, Plaintiffs' assertions can only be labelled as

false.

2. Cross-Motion to Preclude.

Preclusion of testimony is a matter of the court's discretion. In determining

whether to preclude testimony, the court considers the following factors:

the party's explanation for the failure to comply with the discovery order; (2) the

importance of the testimony of the precluded witness; (3) the prejudice suffered

by the opposing party as a result of having to prepare to meet the new testimony;

and (4) the possibility of a continuance.

Softel, Inc. v. Dragon Med. & Sic. Commc'ns, Inc., 118 F.3d.d 955, 951 (2d Cir. 1997)

(citing Outley v. City of New York, 837 F.2d 587, 590-91 (2d Cir. 1988)) ("the Softel

factors").

Further, “although a ‘bad-faith’ violation of the Rule 26 is not required in order to exclude

evidence pursuant to Rule 37, it can be taken into account as part of the party's

explanation for its failure to comply.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 296

(2d Cir. 2006) (italics in original) (affirming district court’s exclusion of witness and

financial report where discovery which had been closed for one and a half years would

have to be reopened just before trial and there was no substantial justification for failing

to earlier disclose). See Holland v. Goord, 2012 WL 6652443, at *4 (W.D.N.Y. Dec. 20,

2012) (denying the defendant’s motion to reopen discovery and precluding defendant

from presenting witnesses who were not timely identified where the defendant failed to

show substantial justification for failing to comply with discovery obligations, or that the

nondisclosure was not harmless, and citing Haas v. Delaware and Hudson Ry. Co.,

Fed.Appx. 84, 86–87 (2d Cir. June 24, 2008) (“Although the late discovery of Sheehan's

information was apparently due to plaintiff's counsel's neglect and not ‘bad faith,’ bad

faith is not required [for preclusion] and counsel has offered no adequate explanation for

this untimely disclosure.”)).

Here, the court finds all four Softel factors support preclusion. First, and

foremost, Plaintiffs' explanation for the reason Plaintiff failed to disclose any of the 10

witnesses Plaintiffs now seek to depose is illusory and false. As discussed, supra, at 3,

5, the record provides no basis for Plaintiffs' repeated assertion that the witnesses'

identities arose only during the March 2025 depositions of non-party witnesses.

Second, as to the importance of the witnesses' testimony, the record, undisputed by

Plaintiffs, also demonstrates that nearly all of the 10 witnesses have no knowledge of

the 2020 training program at the Buffalo Fire Academy, the subject of the lawsuit. See

Levitt Declaration (Dkt. 42-2) ¶¶ 18-20; Eason Declaration (Dkt. 42-4) ¶¶ 2-5. As to

prejudice to Defendants, the third Softel factor, Defendants were misled by Plaintiffs into

formulating their discovery strategy in reliance upon Plaintiffs' unsupplemented Rule

26(a)(1) disclosures and conducted numerous depositions without knowledge of the

possibly relevant documents Plaintiffs now seek to discover. To allow Plaintiffs to

review such documents at this late stage of the case, would, as Defendants assert,

"make a mockery” of Rule 26(a)(1)(A) and 26(e)(1)(A) and compel Defendants to attend

numerous additional depositions of spurious evidentiary value at Defendants' expense.

Defendants’ Memorandum (Dkt. 42-1) at 9. While a continuance is a possibility, the

court, given the undisputed facts in this record, finds no justification for prolonging the

discovery phase of this case to Defendants' detriment. Accordingly, Defendants' cross-

motion for preclusion of the 10 proposed witnesses and Plaintiffs' asserted additional

documents, is GRANTED.

3. Defendants' Requests for Attorneys Fees.

It is "generally appropriate to require a party that has not complied with its

discovery obligations to pay for reasonable fees and costs incurred by the moving party

in seeking disclosure and/or in seeking discovery sanctions." Ritchie, 280 F.R.D. at 156

(citing Izzo v. ING Life Ins. and Annuity Co., 235 F.R.D. 177, 188 (E.D.N.Y. 2005)).

Here, Plaintiffs' motion was for the reasons explained at length is wholly without merit

requiring Defendants' response including Defendants' preclusion request. The court

therefore finds Plaintiffs' motion was not substantially justified and cannot be fairly

considered as harmless. Accordingly, Plaintiffs shall reimburse Defendants for

Defendants' reasonable attorneys fees incurred in connection with Defendants'

opposition to Plaintiffs' motion and Defendants' cross-motion for preclusion

CONCLUSION

Based on the foregoing, Plaintiffs' motion (Dkt. 36) is DENIED; Defendants'

cross-motion for preclusion (Dkt. 42) is GRANTED. Defendants shall within 20 days

submit an application for such expenses incurred in connection with Defendants'

opposition to Plaintiffs' motion and Defendants' cross-motion together with

contemporaneous documentation; Plaintiffs' opposition shall be filed within 10 days

thereafter; Defendants' reply, if any, shall be filed within five days. Oral argument shall

be at the court's discretion.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: September 30, 2025

Buffalo, New York