explaining that “[p]leadings often are designed to include all possible claims or defenses, and parties are always free to abandon some of them,” and that “[w]here abandonment by a counseled party is not explicit but such an inference may be fairly drawn from the papers and circumstances viewed as a whole, district courts may conclude that abandonment was intended”
How later courts described this case
- explaining that “[p]leadings often are designed to include all possible claims or defenses, and parties are always free to abandon some of them,” and that “[w]here abandonment by a counseled party is not explicit but such an inference may be fairly drawn from the papers and circumstances viewed as a whole, district courts may conclude that abandonment was intended”
- finding it "appropriate,” particularly where party is represented by counsel, to "infer from [the partyl’s partial opposition that [the] claims ... that are not defended have been abandoned,” since "[generally ... a partial response reflects a decision by a party’s attorney to pursue some claims or defenses and to abandon others”
- holding that "when a party, whether pro se or counseled, fails to respond to an opponent's motion for summary judgment, a district court may not enter a default judgment," but "must examine the movant's statement of undisputed facts and the proffered record support and determine whether the movant is entitled to summary judgment"
- holding that in cases where a counseled party makes only a partial response to a motion for summary judgment, referencing some claims or defenses but not others, “a court may, when appropriate, infer from a party’s partial opposition that relevant claims or defenses that are not defended have been abandoned.”
Written by the judges who cited it.
The opinion
12-1475-cv
Jackson v. Federal Express
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2013
6
7 (Argued: January 15, 2014 Decided: September 9, 2014)
8
9 Docket No. 12-1475-cv
10
11 - - - - - - - - - - - - - - - -
12 MONIQUE JACKSON,
13 Plaintiff-Appellant,
14
15 v.
16
17 FEDERAL EXPRESS,
18 Defendant-Appellee.
19 - - - - - - - - - - - - - - - -
20
21 B e f o r e: WINTER, STRAUB, and HALL, Circuit Judges.
22
23 Appeal from a grant of summary judgment by the United
24 States District Court for the District of Connecticut (Robert
25 N. Chatigny, Judge) dismissing appellant’s claims and denying
26 her pro se request to reopen discovery. We write to clarify a
27 district court’s obligations in granting summary judgment where
28 a motion for such judgment is fully or partially unopposed. We
29 affirm.
30 EDWARD SCARVALONE, Doar Rieck Kaley
31 & Mack, LLC, New York, NY, for
32 Plaintiff-Appellant.
33
34
35 DAVID P. KNOX, Federal Express
36 Corporation, Memphis, TN, for
37 Defendant-Appellee.
38
39
40
1
2 WINTER, Circuit Judge:
3
4 Monique Jackson appeals from Judge Chatigny’s grant of
5 summary judgment dismissing her medical leave, disability,
6 employment discrimination, and retaliation claims and denial of
7 her pro se request to reopen discovery. We write to clarify the
8 obligations of a district court in granting summary judgement
9 under Fed. R. Civ. P. 56. We affirm.
10 BACKGROUND
11 We view the record in the light most favorable to appellant.
12 Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223-
13 24 (2d Cir. 1994) (on de novo review of summary judgment, “all
14 ambiguities must be resolved and all inferences drawn in favor
15 of” the non-moving party). The following facts are undisputed,
16 unless noted otherwise.
17 Appellant is an African-American woman who worked as a
18 senior service agent at Federal Express (“FedEx”) from 1996 to
19 May 2007. In 2006, appellant filed an internal human resources
20 (“HR”) complaint against her manager, Franklin Benjamin, claiming
21 that he sexually harassed her, and against the operations
22 manager, Billy Lipscomb, claiming that he ignored her complaints.
23 Both managers were subsequently transferred to different
24 facilities. After a short interval during which appellant was
25 supervised by new managers, Ralph Sylvester became appellant’s
26 direct manager.
2
1 FedEx’s termination policy provides that “if an employee
2 receives any combination of three warning letters or performance
3 counseling letters in a twelve-month period, the employee is
4 subject to termination.” After appellant was disciplined five
5 times between September 2006 and May 2007, FedEx terminated her.
6 On March 16, 2010, appellant filed the present complaint
7 against FedEx alleging, inter alia, that Sylvester and Benjamin
8 were friends and that Sylvester terminated her in retaliation for
9 complaining about Benjamin’s sexual harassment. The complaint
10 further alleged that Sylvester used racial slurs in her presence,
11 pressured her to return to work while she was on medical leave
12 recovering from an automobile accident, refused to accommodate
13 her work to lingering injuries after she returned, and terminated
14 her in part because of her age and race. The complaint asserted
15 claims for: (i) retaliation for filing an internal complaint of
16 sexual harassment, 42 U.S.C. § 2003e-3(a); (ii) termination
17 because of her race, 42 U.S.C. § 2003e-2(a); (iii) violation of
18 the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; (iv)
19 violation of the Americans with Disabilities Act, 42 U.S.C. §
20 1201.01 et seq.; and (v) age discrimination, 42 U.S.C. § 610 et
21 seq.
22 After the court-ordered schedule of seven months for
23 discovery had expired, FedEx moved for summary judgment on all
24 claims. In compliance with Fed. R. Civ. P. 56(c) and Local Rule
3
1 56(a)(1), it submitted a statement of 124 facts that FedEx
2 claimed to be undisputed. The motion was accompanied by sworn
3 declarations from Sylvester and two FedEx HR managers and
4 excerpts from appellant’s deposition. Each of the 124 factual
5 assertions cited specific support in the record. Appellant,
6 through counsel, responded with a Local Rule 56(a)(2) statement
7 of undisputed and disputed facts, additional documentary
8 evidence, and an opposition brief. Appellant’s Rule 56(a)(2)
9 statement explicitly admitted 111 of FedEx’s statements of
10 undisputed facts and denied 13. The admitted facts included
11 numerous matters undermining appellant’s non-retaliation claims.
12 Details are discussed infra. The denials concerned the
13 investigation of Benjamin’s conduct, Sylvester’s use of racial
14 epithets, and the circumstances of appellant’s termination. Part
15 II of her response to FexEx’s statement of undisputed facts
16 claimed that the following “issues of material fact” were
17 disputed:
18 1. Plaintiff filed a harassment
19 complaint against a FEDEX employee in
20 February of 2000 [sic], after which, her
21 performance rating declined. . . . The
22 decline was motivated, in part, by the
23 filing of the internal complaint.
24 2. When Plaintiff “zeroed” timecards in
25 March of 2007, and was reprimanded for
26 it, she did so under the express
27 instruction of Sylvester. . . .
28 Sylvester’s motivation to write-up and
29 subsequently terminate Jackson was . . .
30 motivated, in large part, to retaliate
4
1 against Jackson for filing an internal
2 complaint against Benjamin.
3
4 Her opposition brief stated that “[d]iscovery has yielded the
5 existence of issues of fact with respect to one of [appellant’s]
6 claims: Title VII retaliation,” and argued that summary judgment
7 should be denied as to that claim.
8 The district court concluded that appellant “tacitly admits
9 that there are no issues of fact with regard to the [non-
10 retaliation] claims,” and dismissed them “in the absence of
11 opposition.” It also noted that it had “[r]eview[ed]” appellee’s
12 statement of undisputed facts and confirmed the lack of a dispute
13 as to those facts. The district court then discussed the Title
14 VII retaliation claim in detail and granted summary judgment in
15 favor of FedEx on that claim.
16 While the motion for summary judgment was briefed and
17 pending, appellant, acting pro se although still represented by
18 counsel, filed a request to reopen discovery in order to permit
19 the deposition of certain FedEx employees, including Ralph
20 Sylvester, and to obtain time-keeping reports (“FAMIS reports”)
21 that appellant had prepared. Appellant stated in a letter to the
22 court that her attorney “failed to subpoena [her] former
23 operational manager Ralph Sylvester . . . [and] allow[ed]
24 discovery to close on February 1, 2011.” The letter was returned
25 to appellant because it was not signed by her counsel. Counsel
26 responded with a letter to the court explaining that he had
5
1 previously requested production of the FAMIS reports, but FedEx’s
2 counsel had stated that “they were not in possession, custody, or
3 control of this document.” He further stated that the deposition
4 of Sylvester was “largely unnecessary” because it likely would
5 “be favorable to FedEx.”
6 Appellant had sent a letter to her counsel, which predated
7 the letter to the court, asking him to withdraw because she did
8 not think he had her “best interest at heart” and that she was
9 “truly dissatisfied that [he] allowed discovery to close” without
10 the FAMIS reports. Appellant’s counsel moved to withdraw, and
11 the district court granted the request on October 20, 2011.
12 Appellant then filed a pro se motion to reopen discovery
13 reiterating the reasons given in her previous letter. The court
14 denied the motion in the order granting summary judgment.
15 Appellant then brought this appeal pro se. On November 13,
16 2012, we dismissed appellant’s retaliation claim as lacking “an
17 arguable basis in law or fact,” but we appointed pro bono counsel
18 to brief the grant of summary judgment on the claims deemed
19 abandoned by the district court.1
20 DISCUSSION
21 a) Summary Judgment on the Non-Retaliation Counts
22 We review a district court’s grant of summary judgement de
1
We express our gratitude to counsel for this service.
6
1 novo, because such a motion may be granted only when the moving
2 party shows that there is no genuine dispute as to any material
3 fact and it is entitled to judgment as a matter of law. Fed. R.
4 Civ. P. 56; Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001).
5 Relying on Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373
6 F.3d 241 (2d Cir. 2004), appellant argues the district court
7 failed to carry out its responsibilities in entering summary
8 judgment when, after a “review” of the assertions of undisputed
9 facts, it dismissed the non-retaliation claims as “unopposed.”
10 We disagree.
11 Rule 56 allows a party to seek a judgment before trial on
12 the grounds that all facts relevant to a claim(s) or defense(s)
13 are undisputed and that those facts entitle the party to the
14 judgment sought. Vt. Teddy Bear, 373 F.3d at 244. A statement
15 of facts deemed by the moving party to be undisputed must be
16 submitted by that party for each such fact. Fed. R. Civ. P.
17 56(c); D. Conn. Local R. 56(a)(1). Such a statement must
18 reference admissible evidence (when presented at trial in the
19 form of testimony or other permissible method) in the record
20 tending to prove each such fact, e.g., deposition testimony,
21 admissions, answers to interrogatories, affidavits, etc., see
22 Fed. R. Civ. P. 56(c)(2) (nonmovant may object that cited
23 material is inadmissible); D. Conn. Local R. 56(a)(3) (specific
24 citation to evidence must be to “the affidavit of a witness
7
1 competent to testify as to the facts at trial” or to “evidence
2 that would be admissible at trial”); Raskin v. Wyatt Co., 125
3 F.3d 55, 66 (2d Cir. 1997) (“only admissible evidence need be
4 considered by the trial court in ruling on a motion for summary
5 judgment,” and the Federal Rules of Evidence govern such
6 admissibility). The non-moving party need not respond to the
7 motion. However, a non-response runs the risk of unresponded-to
8 statements of undisputed facts proferred by the movant being
9 deemed admitted. Fed. R. Civ. P. 56(e)(2); see, e.g., Jones v.
10 Lamont, No. 05 Civ. 8126, 2008 WL 2152130, at *1 (S.D.N.Y. 2008)
11 (“In view of [pro se] plaintiff’s failure to respond to the
12 motion, the well supported factual allegations set forth in
13 defendants’ Rule 56.1 statement are deemed admitted.”), aff’d,
14 379 Fed. App’x 58 (2d Cir. 2010).
15 A non-response does not risk a default judgment, however.2
16 See Vt. Teddy Bear, 373 F.3d at 246 (contrasting Rule 55 default
17 with summary judgment requirements). Before summary judgment may
18 be entered, the district court must ensure that each statement of
19 material fact is supported by record evidence sufficient to
20 satisfy the movant’s burden of production even if the statement
21 is unopposed. Id. at 244 (district court must examine an
2
As Vermont Teddy Bear discussed, many default rules such as Rule 55,
Rule 4(a), Rule 16(f), and Rule 37(b)(2) are based on the “ancient common law
axiom that a default is an admission of all well-pleaded allegations against
the defaulting party,” while “[m]otions for summary judgment . . . lack these
ancient common law roots.” 373 F.3d at 246.
8
1 unopposed motion for summary judgment “to determine if it has met
2 its burden of demonstrating that no material issue of fact
3 remains for trial” and that “the citation to evidence in the
4 record supports the [unopposed] assertion” (internal quotations
5 omitted)). In doing so, the court may rely on other evidence in
6 the record even if uncited. Fed. R. Civ. P. 56(c)(3). And, of
7 course, the court must determine whether the legal theory of the
8 motion is sound. Thus, Rule 56 does not allow district courts to
9 automatically grant summary judgment on a claim simply because
10 the summary judgment motion, or relevant part, is unopposed.
11 However, as discussed infra, a partial response arguing that
12 summary judgment should be denied as to some claims while not
13 mentioning others may be deemed an abandonment of the unmentioned
14 claims.
15 In the present case, the district court fulfilled all these
16 requirements. It “[r]eview[ed]” the statement of undisputed
17 facts submitted by appellee, which included relevant citations to
18 the record. Based on those statements, it concluded that
19 appellee was entitled to judgment as a matter of law and granted
20 summary judgment. Appellant argues, not that substantive error
21 was committed, but that the district court failed to write a
22 sufficiently elaborate essay.
23 Much of appellant’s argument rests on an overreading of
24 Vermont Teddy Bear. That decision involved a pro se defendant
9
1 who failed to oppose a Rule 56 motion and had a judgment entered
2 against him that included, inter alia, a permanent injunction,
3 statutory damages of $150,000, and reimbursement for litigation
4 expenses. 373 F.3d at 243. Although the legal claims involved
5 multi-factor balancing tests, the district court had simply
6 endorsed the notice of motion as granted, with slight
7 modifications. Id. We vacated and remanded. Id. at 247.
8 We do not quarrel with Vermont Teddy Bear. We simply hold
9 that it has no bearing on this case.
10 First, Vermont Teddy Bear involved a pro se litigant, and we
11 are less demanding of such litigants generally, particularly
12 where motions for summary judgment are concerned. See Ruotolo v.
13 IRS, 28 F.3d 6, 8 (2d Cir. 1994) (district court “should have
14 afforded [pro se litigants] special solicitude before granting
15 the . . . motion for summary judgment”); Tracy v. Freshwater, 623
16 F.3d 90, 101-02 (2d Cir. 2010) (discussing various forms of
17 solicitude shown to pro se litigants). Second, the district
18 court decision appeared to be the equivalent of a default
19 judgment. Third, this court was left without a record sufficient
20 for appellate review. None of these critical elements is found
21 in the present appeal.
22 First, appellant was represented by counsel during discovery
23 and at the time of the motion for summary judgment. Moreover,
24 counsel responded to the motion, and the motion was fully
10
1 submitted before the conflict with appellant over discovery
2 developed. Therefore, the concern we show over ensuring that a
3 pro se litigant understands the stakes in such a motion, see
4 Ruotolo, 28 F.3d at 8 (“The failure of a district court to
5 apprise pro se litigants of the consequences of failing to
6 respond to a motion for summary judgment is ordinarily grounds
7 for reversal.”), is simply irrelevant in the present matter.3
8 Second, there is nothing in the record of this matter that
9 suggests that the district court was entering a default judgment.
10 The motion for summary judgment complied with Rule 56 and, unlike
11 the circumstances in Giannullo v. City of New York, 322 F.3d 139,
12 142 (2d Cir. 2003), each statement of proposed undisputed facts
13 was supported by a citation to the record sufficient to prove
3
We also note that, in Vermont Teddy Bear, the pro se was a defendant
who had had a serious judgment entered against him. A grant of summary
judgment to a plaintiff who bears the burden of proof of material facts must
be supported by a strong proffer of evidence. The evidentiary proffer
accompanying the motion must show the lack of any dispute of material facts
that the plaintiff-movant has the burden of proving and that those undisputed
facts entitle the plaintiff-movant to judgment. A defendant, of course, takes
a risk in not responding to such a motion but may still prevail because Rule
56 requires the court to examine and verify that the plaintiff-movant’s
submission suffices to support an entry of judgment. Vt. Teddy Bear, 373 F.3d
at 244 (citing Amaker, 274 F.3d at 681).
However, where, as here, a defendant moves for summary judgment against
a plaintiff who bears the burden of proving the factual elements of the claims
asserted, the risk of a plaintiff not opposing a motion in whole or in part is
even greater. To be sure, the district court must examine the defendant-
movant’s submission for evidentiary and legal sufficiency. But when a
defendant-movant submits an evidentiary proffer sufficient to defeat a claim,
a plaintiff who bears the burden of proof cannot win without proffering
evidence sufficient to allow a trier of fact to find in its favor on each fact
material to its claim(s). See Powell v. Nat’l Bd of Med. Exam’rs, 364 F.3d 79,
84 (2d Cir. 2004) (once defendant-movant “demonstrates an absence of a genuine
issue of material fact,” plaintiff bears burden of production to show
“specific facts showing that there is a genuine issue for trial” for each such
fact). The present appeal is from the grant of just such a defendant’s
motion.
11
1 each such fact. Appellant, who bore the burden of proving the
2 facts essential to each of her claims, made no proffer with
3 regard to any of her claims except for the retaliation claim.
4 The district court noted that its review of FedEx’s statements of
5 undisputed facts confirmed the lack of any dispute of material
6 facts with regard to the non-retaliation claims. The court’s use
7 of the term “unopposed” does not necessarily suggest a default
8 rationale; it simply reflects the plain consequences of an
9 appellant’s failing to make a sufficient response to a properly
10 supported Rule 56 motion.
11 Moreover, there is a relevant distinction to be drawn
12 between fully unopposed and partially opposed motions for summary
13 judgment in counseled cases. While the opponent to such a motion
14 is free to ignore it completely, thereby risking the admission of
15 key facts and leaving it to the court to determine the legal
16 merits of all claims or defenses on those admitted facts, a
17 partial opposition may imply an abandonment of some claims or
18 defenses. Generally, but perhaps not always, a partial response
19 reflects a decision by a party’s attorney to pursue some claims
20 or defenses and to abandon others. Pleadings often are designed
21 to include all possible claims or defenses, and parties are
22 always free to abandon some of them. Moreover, preparation of a
23 response to a motion for summary judgment is a particularly
24 appropriate time for a non-movant party to decide whether to
12
1 pursue or abandon some claims or defenses. Indeed, Rule 56 is
2 known as a highly useful method of narrowing the issues for
3 trial.
4 Where abandonment by a counseled party is not explicit but
5 such an inference may be fairly drawn from the papers and
6 circumstances viewed as a whole, district courts may conclude
7 that abandonment was intended. Such an inference would have been
8 proper here. Appellant’s counsel responded to each of Fed Ex’s
9 proposed undisputed facts; appellant’s opposition brief noted
10 that “discovery has yielded the existence of issues of fact with
11 respect to one . . . claim[];” and the brief argued only that
12 summary judgment should be denied as to that one claim.
13 In contrast, Vermont Teddy Bear involved a motion totally
14 unopposed by a pro se party, and the district court’s failure to
15 analyze any of the complex legal and factual issues suggested
16 that it had entered a default judgment. Moreover, even if a
17 partial response had been made in Vermont Teddy Bear, an
18 examination of the legal validity of an entry of summary judgment
19 should have been made in light of the opposing party’s pro se
20 status.
21 Rule 56 also requires that a grant or denial of summary
22 judgment is accompanied by an explanation. Fed. R. Civ. P.
23 56(a). However, absent some indication of a material issue being
24 overlooked or an incorrect legal standard being applied, we do
13
1 not require district courts to write elaborate essays using
2 talismanic phrases. See, e.g., United States v. Cossey, 632 F.3d
3 82, 87 (2d Cir. 2011) (“strong presumption” on review of
4 sentencing that the district court “considered all arguments
5 properly presented to [it], unless the record clearly suggests
6 otherwise”); cf. In re Mazzeo, 167 F.3d 139, 142 (2d Cir. 1999)
7 (Fed. R. Civ. P. 52(a) explanation of reasoning does not require
8 “punctilious detail or slavish tracing of the claims issue by
9 issue and witness by witness” (internal quotations and
10 alterations omitted)); Badgley v. Santacroce, 815 F.2d 888, 889
11 (2d Cir. 1987) (same). All that is required is a record
12 sufficient to allow an informed appellate review, the subject to
13 which we now turn.
14 Unlike Vermont Teddy Bear, the record here is easily
15 sufficient to allow an informed appellate review. Appellant’s
16 non-retaliation claims did not turn on multi-factor balancing
17 legal tests or mixed issues of fact or law on which the movant
18 bore the burden of proof. Here, the district court’s legal
19 reasoning is perfectly obvious. Even a cursory examination of
20 the record reveals that plaintiff’s case, apart from the
21 retaliation claim, collapsed with her deposition. Plaintiff’s
22 deposition testimony contradicted important allegations in her
23 complaint, e.g., she testified that she never heard Sylvester use
14
1 a racial epithet,4 did not believe that her termination was based
2 on race or age, was not denied medical leave, was simply asked
3 about her expectations for returning to work when on that leave,
4 and was not asked to do work that her injury prevented. Most of
5 the critical facts asserted by FedEx as undisputed were,
6 therefore, referenced to appellant’s deposition testimony.
7 In such a case, there is no need for a district court to
8 robotically replicate the defendant-movant’s statement of
9 undisputed facts and references to the record or otherwise serve
10 as an assistant to our law clerks. See Miranda v. Bennett, 322
11 F.3d 171, 175, 177 (2d Cir. 2003) (“an opinion or lengthy order”
12 is not required in every case, and review will proceed even in
13 the face of inadequate findings by the district court “if we are
14 able to discern enough solid facts from the record to permit us
15 to render a decision” (quotations omitted)). After all, we have
16 our own responsibility to independently confirm the lack of a
17 genuine dispute of material facts. Moreover, our review of a
18 grant of a motion for summary judgment is de novo, leaving a non-
19 movant-appellant free to point out any perceived deficiencies in
20 the movant-appellee’s summary judgment papers, and, there being
21 no findings of fact subject to Rule 52(a)(6) plain error review,
4
Contrary to the allegations in the complaint, appellant specifically
denied hearing Sylvester “say anything that was racially derogatory or
racially prejudiced or biased.” She did mention one individual who allegedly
“heard [Sylvester] use the racial N word, something like that,” but her
deposition failed to identify a single admissible, non-hearsay-based incident
of racially derogatory language.
15
1 leaving this court free to correct legal errors. None have been
2 identified in the present matter.
3 To sum up, when a party, whether pro se or counseled, fails
4 to respond to an opponent’s motion for summary judgment, a
5 district court may not enter a default judgment. Rather, it must
6 examine the movant’s statement of undisputed facts and the
7 proferred record support and determine whether the movant is
8 entitled to summary judgment. Where a partial response to a
9 motion is made -- i.e., referencing some claims or defenses but
10 not others –- a distinction between pro se and counseled
11 responses is appropriate. In the case of a pro se, the district
12 court should examine every claim or defense with a view to
13 determining whether summary judgment is legally and factually
14 appropriate. In contrast, in the case of a counseled party, a
15 court may, when appropriate, infer from a party’s partial
16 opposition that relevant claims or defenses that are not defended
17 have been abandoned. In all cases in which summary judgment is
18 granted, the district court must provide an explanation
19 sufficient to allow appellate review. This explanation should,
20 where appropriate, include a finding of abandonment of undefended
21 claims or defenses.
22 In the present matter, therefore, the process contemplated
23 by Rule 56 has thus been satisfied with regard to dismissal of
24 the non-retaliation claims.
16
1 b) Reopening Discovery
2 We also affirm the district court’s decision to deny
3 appellant’s pro se motion to reopen discovery. We will reverse
4 a district court’s ruling regarding discovery only “upon a clear
5 showing of an abuse of discretion.” In re DG Acquisition Corp.,
6 151 F.3d 75, 79 (2d Cir. 1998).
7 Relying on Dunton v. County of Suffolk, 729 F.2d 903 (2d
8 Cir. 1984), as amended, 748 F.2d 69 (2d Cir. 1984), appellant
9 argues that the district court abused its discretion in not
10 reopening discovery when it learned of a conflict between
11 appellant and her attorney. However, in Dunton, there was an
12 ongoing conflict of interest between a defendant and his
13 attorney, who also represented the municipality. The defendant
14 denied that he had a strong interest in avoiding personal
15 liability under 42. U.S.C. § 1983 by arguing that he was acting
16 within the scope of his official duties, while the municipality
17 had a strong interest in avoiding liability under Monell by
18 arguing that he was acting on personal motives. Id. at 908-09.5
5
In Dunton, a municipality provided counsel to a police officer who,
upon seeing his wife engaged in illicit behavior in a car with another man,
pulled the man from the vehicle and beat him up. The officer in Dunton
alleged a current conflict of interest. He argued that, while it would have
been in his best interest to assert that he was entitled to qualified immunity
from Section 1983 liability because he was acting within the scope of his
duties, his attorney “repeatedly stat[ed] that [the officer] acted not as a
police officer but as an ‘irate husband.’” 729 F.2d at 907. The officer
argued that counsel, in doing so, was motivated to show that the officer was
not acting within the scope of his duties to avoid Monell liability for the
municipality. Id. at 907 (citing Monell v. Dep’t of Social Servs., 436 U.S.
658 (1978)). We held that there was an “imminent threat of serious conflict,
17
1 The situation here, however, is a disagreement over legal
2 tactics, not a conflict of interest. Appellant’s attorney never
3 represented FedEx, and no motives-based conflict as in Dunton has
4 been alleged.
5 Even if a client does have a disagreement with her attorney
6 on a matter such as the conduct of discovery, “all litigants are
7 ‘bound by the concessions of freely retained counsel.’”
8 Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277,
9 289 (2d Cir. 2011) (quoting Hoodho v. Holder, 558 F.3d 184, 192
10 (2d Cir. 2009); see also Link v. Wabash R.R. Co., 370 U.S. 626,
11 634 (1962) (“[In] our system of representative litigation . . .
12 each party is deemed bound by the acts of his lawyer-agent.”).
13 Therefore, the district court correctly treated the pro se motion
14 as belatedly seeking to reopen discovery.
15 There was no abuse of discretion in the denial of the
16 motion. Appellant and her attorney had seven months to conduct
17 discovery. See Burlington Coat Factory Warehouse Corp. v.
18 Espirit De Corp., 769 F.2d 919, 927 (2d Cir. 1985) (when a party
19 has “ample time in which to pursue the discovery that it now
20 claims is essential,” a district court has broad discretion to
21 deny a request for further discovery); see also Fed. R. Civ. P.
22 26(b)(2)(C)(ii) (court “must” limit scope of discovery where “the
[and] disqualification would have been appropriate here even before any
proceedings began.” Id.
18
1 party seeking discovery has had ample opportunity to obtain the
2 information by discovery in the action”). The scheduled time for
3 discovery was over, and a fully briefed motion for summary
4 judgment was pending when the request to reopen was made. A
5 reopening under those circumstances would seriously undermine the
6 orderly scheduling of discovery and summary judgment motions.
7 Moreover, no extra time would have produced the timecards
8 appellant requested because FedEx previously represented that
9 they did not have such materials. Finally, the hoped-for-
10 tripping-up of Sylvester was the legal equivalent of a
11 potentially counterproductive -- in the revelation of more
12 adverse evidence -- lottery ticket of little value.
13 Appellant also argues that the district court abused its
14 discretion by only briefly stating its reasons for denying the
15 motion to reopen discovery. We again disagree. The district
16 court “substantially” adopted FedEx’s reasons for denying the
17 motion: (i) the motion was untimely, filed nine months after the
18 close of discovery and well past the scheduling order’s
19 deadlines; (ii) it “fail[ed] to demonstrate good cause for
20 reopening discovery”; and (iii) the motion was futile. However,
21 a district court is not required to “write an opinion or lengthy
22 order in every case,” and a court may “properly adopt a party’s
23 arguments on a given issue instead of issuing an order setting
24 out a free-standing elaboration of the court’s views.” Miranda,
19
1 322 F.3d at 177. The court did not abuse its discretion in
2 denying the request or in not elaborating on the obvious reasons
3 for denying it.6
4 CONCLUSION
5 For the reasons stated, we affirm.
6
6
Appellant’s request that, if we remand, we also vacate the district
court’s November 2012 grant of summary judgment on the retaliation claim is
denied as moot.
20