The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING THE PLAINTIFFS'APPEAL OF MAGISTRATE JUDGE'S ORDERS REGARDING REOPENING OF DISCOVERY AND BRIEFING SCHEDULE FOR DISPOSITIVE MOTIONS
This case involves a lawsuit brought by the plaintiffs following the stabbing of Givon Pendleton and Bradley Autman at the D.C. Jail in December, 2002. Before the court is the plaintiffs' appeal of Magistrate Judge Kay's Memorandum Order reopening discovery and his Minute Order denying as moot the plaintiffs' motion for a dispositive motions schedule, both issued December 12, 2007. The plaintiffs argue that Judge Kay failed to make a finding of "good cause" when he granted the defendant's motion to reopen and extend discovery; that a substitution of counsel does not constitute good cause for reopening discovery; that, even if it did, the defendants did not truly lose their lead counsel before the discovery deadline expired and have shown no pre-deadline due diligence; that the law of the case precludes an extension of discovery for the defendants; and that reopening discovery will unduly prejudice the plaintiffs. The defendants maintain that Judge Kay did apply the correct standard, that he clearly articulated the basis of his finding of excusable neglect, that loss of counsel is good cause for an extension, and that the plaintiffs will incur no prejudice from an extension. Because the court concludes that Judge Kay correctly applied the appropriate legal standards, and because his factual findings are not clearly erroneous, the court denies the plaintiffs' appeal.
On December 11, 2002, Dominic Jones, an inmate at the D.C. Jail, fatally stabbed Givon Pendleton, a pretrial detainee at the D.C. Jail. Am. Compl. ¶ 2. On December 13, 2002, an unknown inmate at the D.C. Jail stabbed inmate Bradley Raymond Autman in the neck.*fn1 Id. at 3. The following day, a third stabbing, this time of inmate Mikal Gaither, took place in a housing unit of the D.C. Jail. Id. at 4. Gaither died as a result of the stabbing wounds the following day. Id.
Decedent Givon Pendleton's mother, Pearl Beale, and stabbing victim Bradley Raymond Autman bring this suit against the District of Columbia; Odie Washington, the director of the D.C. Department of Corrections; Marvin Brown, the retired Warden of the D.C. Jail; Dennis Harrison, the Deputy Warden; and Steven Smith, the current Warden. See Am. Compl. According to the plaintiffs, these stabbings occurred soon after a population explosion at the jail following the expiration of a judicially created population cap and were the result of "unconstitutional conditions at the Jail as well as negligence of District officials in operating that facility." Id. ¶ 5.
The plaintiffs filed suit in this court on June 10, 2004. On December 19, 2005, the court referred the case to Magistrate Judge Kay for all discovery and discovery-related disputes. Order (Dec. 19, 2005). Within a little more than four months, the plaintiffs had filed three separate motions for sanctions alleging numerous discovery violations, stonewalling and violations of court orders. On March 30, 2006, the court referred these motions to Judge Kay. Order (Mar. 31, 2006). On January 31, 2007, Judge Kay issued a Minute Order deferring a ruling on the plaintiffs' sanctions motions until the close of all discovery. Min. Order (Jan. 31, 2007). Contemporaneously, this court denied the defendants' motion for summary judgment without prejudice and declared that it would entertain dispositive motions after the close of discovery. Min. Order (Jan. 31, 2007).
On April 10, 2007, Judge Kay ordered that all discovery would close on October 9, 2007. Order (Apr. 10, 2007). On September 25, 2007, Judge Kay granted a request by the defendants for an extension of discovery to November 9, 2007. Min. Order (Sept. 25, 2007). On October 25, 2007, Judge Kay granted a further extension, unopposed by the plaintiffs, setting November 5, 2007 as the deadline for defendants to serve their expert reports and November 19, 2007 as the deadline for the close of discovery. Min. Order (Oct. 25, 2007). On November 23, 2007, the defendants moved for an extension of time to complete discovery. Defs.' Mot. to Reopen Discovery and Schedule Dispositive Mot. Deadline ("Defs.' Mot."). Specifically, they sought (1) to late file their expert reports; (2) to take depositions of plaintiffs' experts "and any other necessary fact witnesses, including plaintiff Bradley Autmon, and Melvin Reese"; and (3) to file a dispositive motion after discovery. Id. at 1. Defendants explained that "[o]n or about November 9, 2007, former counsel of record began Administrative Leave." Id. at 2. C. Vaughn Adams, current counsel, was assigned to the case on November 19, 2007, entering his appearance on November 21, 2007. Id. at 1-2. Additionally, Shameka Gainey entered her appearance on November 23, as did Zuberi Williams on November 27. Id. at 2. Defendants represent that because of "personnel changes and the shortage of staff attorneys because of attrition, reassignment of this case could not be more timely made." Id. at 4. Under Federal Rules of Civil Procedure 6(b), they asked the court to enlarge the discovery close date and accept their late filed motion on the basis of excusable neglect. Id. Counsel Vaughn cited other circumstances for his untimeliness, including the fact that he entered appearance in another case for a trial scheduled to begin a day later, and that he did not learn of this assignment until November 20, whereupon her entered his appearance the next day. Id.
On December 7, 2007, the plaintiffs filed an opposition. They noted that the court had already set five deadlines for serving expert reports and five deadlines for closing discovery.
Pls.' Opp'n to Def.'s Mot. at 2. Moreover, in the fourth extension granted on September 25, 2007, the court ruled that there would be "no further extensions." Id. The plaintiffs also complain that the defendants did not cite Rule 16(b)(4) for the standard governing modifications of scheduling orders. Id. at 4. Under that rule, the court must make a finding of "good cause," which includes evidence of due diligence by the movant. Id. As the defendants' former counsel did not leave until November 9, the defendants, the plaintiffs maintain, did not explain why they failed to move for an extension of the expert report deadline before the November 5 deadline. Id. at 5. Moreover, the defendants did not assign a new attorney to the case until November 20, one day after the close of discovery. Id. at 7. Finally, the plaintiffs opposed any postponement of the dispositive motion briefing schedule, as "compound[ing] the prejudice suffered by Plaintiffs and continu[ing] to reward Defendants for their ongoing failure to follow the law, the orders of this Court, and the applicable procedural rules." Id. at 8.
On December 12, 2007, Judge Kay issued a Memorandum Order granting in part and denying in part the defendants' motion. Judge Kay recognized that, "[p]ursuant to Fed. R. Civ. P. 6(b), the Court may, for good cause, extend the time in which an act may be done on the basis of a motion made after the time for doing such act has expired, if the party failed to act because of excusable neglect." Mem. Order (Dec. 12, 2007) at 1. Judge Kay noted the personnel changes in the defendants' legal office; stated that "[d]uring the time this Court has been charged with handling discovery disputes in this matter only this counsel has appeared on behalf of Defendants," id. at 2 n.3; and cited in particular the defendants' representation that "new counsels need additional time to familiarize ...