United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
DEBORAH A. ROBINSON United States Magistrate Judge
Charlesworth Rae commenced this action on May 15, 2015,
alleging discrimination and retaliation in violation of Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, 42
U.S.C. § 1981 and the D.C. Human Rights Act, D.C. Code
§ 2-1401.01, et seq. ("DCHRA") against
Defendants Children's National Medical Center and seven
of its employees. See Complaint (ECF No. 1).
Defendants moved to dismiss the complaint on May 10, 2015.
See Defendants' Motion to Dismiss (ECF No. 3);
Plaintiffs Response to Defendants' Motion to Dismiss (ECF
No. 5). Plaintiff moved for a preliminary injunction on
August 20, 2015. See Motion for Preliminary
Injunction (ECF No. 9). For the reasons set forth on the
record during the March 24, 2016 status hearing, the assigned
District Judge granted Defendants' motion in part,
dismissing Counts I, IV, VI, and VII of Plaintiffs original
complaint, and denied Defendants' motion with respect to
Counts II, III, and V. Plaintiffs motion for preliminary
injunction was also denied. The court granted Plaintiff's
oral motion to file an amended complaint.
filed his amended complaint on May 24, 2015. See
First Amended Complaint (ECF No. 22). A scheduling conference
was subsequently held, and the court set January 27, 2016, as
the date for the completion of discovery. See Minute
Entry 9/6/2016. A post-discovery status hearing was
conducted on February 9, 2017. During the hearing, counsel
for the Plaintiff concurred with defense counsel's
representation to the court that discovery was complete, but
for a few outstanding supplementations. See
Transcript (ECF No. 31) at 3:7-9 (COURT: "Mr. Colvin, is
it your understanding that discovery is complete at this
point? MR. COLVIN: That is correct, Your Honor."). The
following month, Plaintiff moved for "the substitution
of himself as pro se Plaintiff ... in place of [Mr. Colvin]
[.]" See Motion to Substitute Counsel (ECF No.
action was subsequently referred to the undersigned United
States Magistrate Judge for full case management.
See Minute Order and Entry 3/15/17. Plaintiffs
Motion to Reopen Discovery ("Plaintiffs Motion"),
filed on March 21, 2017, is pending for determination by the
undersigned. Upon consideration of the motion,
Defendants' Memorandum in Opposition to Plaintiffs Motion
to Reopen ("Defendants' Opposition") (ECF No.
35), and Plaintiff's Reply to Defendants' Opposition
(ECF No. 39), the motion will be granted, in part.
OF THE PARTIES
contends that he has satisfied the requisite "good
cause" standard, justifying an extension of the
discovery period to allow him to depose five of the
individual Defendants, three employees of Children's
National Medical Center ("CNMC") and a 30(b)(6)
corporate witness.Plaintiffs Motion at 1. Additionally,
Plaintiff submits that "there are a number of other
outstanding discovery issues that Defendants have not so far
satisfied, " including Defendants' failure to
respond to Plaintiff's request for admissions, and to
produce a privilege log with respect to documents withheld
from production on privilege grounds. Plaintiff's Motion
at 2-3. In opposition, Defendants assert that Plaintiff did
not notice any depositions during the period allotted for
discovery, despite his knowledge of the discovery deadline as
a signatory to the proposed schedule included in the
parties' meet and confer statement. See Meet and
Confer (ECF No. 27). Defendants challenge Plaintiff's
assertion that his counsel failed to keep him apprised of the
discovery proceedings, and state that "[a]s Plaintiff
selected his former counsel, he must live with the positives
and consequences of the choices he made."
Defendants'Opposition at 4. Defendants submit that
Plaintiff never served interrogatories; Plaintiff "long
since ... abandoned" his requests for admissions, and
took no action prior to the close of discovery to preserve
any discovery disputes. Id. at 2. On these bases,
Defendants contend that Plaintiff has failed to demonstrate
good cause to justify reopening the discovery proceedings.
Further, Defendants contend that they would be prejudiced by
an extension of the discovery period because
"Defendants' would suffer avoidable legal fees
associated with any redrafting or revisions [of
Defendants' Motion for Summary Judgment] necessary after
additional discovery." Id. at 6.
in his reply, reasserts the arguments delineated in his
motion, and contends that he has satisfied the requisite
showing of good cause, articulated by this court in
Childers v. Slater, 197 F.R.D. 185, 188 (D.D.C.
2000). Plaintiffs Reply at 5-10.
Rule of Civil Procedure 16(b)(4) provides for modification of
a scheduling order upon a showing of "good cause"
and the consent of the court. To determine whether a litigant
has established a sufficient showing of "good cause[,
]" the court must consider: "(1) whether trial is
imminent; (2) whether the request is opposed; (3) whether the
non-moving party would be prejudiced; (4) whether the moving
party was diligent in obtaining discovery within the
guidelines established by the court; (5) the foreseeability
of the need for additional discovery in light of the time
allotted by the district court; and (6) the likelihood that
discovery will lead to relevant evidence."
Childers, 197 F.R.D. at 188. Of these factors,
"the primary factor in determining whether good cause
exists is the diligence of the party[.]" A Love of
Food I, LLC v. Maoz Vegetarian USA, Inc., 292 F.R.D.
142, 144 (D.D.C. 2013).
requests that this court reopen discovery proceedings,
pursuant to Fed.R.Civ.P. 16(b), for 45 days, to allow him to
depose nine witnesses, including five individual Defendants,
three employees of CNMC and a 30(b)(6) designee of CNMC.
Plaintiff's Motion at 1. In his attempt to demonstrate
good cause, Plaintiff points to his counsel's lack of
diligence as the reason for his failure to take depositions,
and to preserve his discovery disputes, within the scheduled
discovery period. Further, Plaintiff asserts that upon
learning of his counsel's failure to depose any witnesses
in accordance with the original litigation strategy, he
discharged his counsel, ordered the transcript of the status
hearing and filed the pending motion to rectify his
balance of the six factors enumerated by this court in
Childers weighs in Plaintiff's favor. As to the
first prong, there is no evidence of the immediacy of trial.
No trial date has been set and this motion reflects
Plaintiff's first request for an extension of the
discovery period, made within two weeks of the filing of the
transcript of the post-discovery status conference and the
day after he resumed his self-representation. See United
States v. Sci. Applications Int'l Corp., 301 F.R.D.
1, 4 (D.D.C. 2013) ("The trial is not imminent because
no  trial date has been set."). As to the second
prong, the undersigned has taken into account that
Plaintiff's motion to reopen discovery is clearly
objected to by Defendants.
undersigned, however, finds the principal ground of
Defendants' opposition- potential prejudice-unpersuasive.
At the status hearing before the undersigned, the only
prejudice hypothesized by Defendants' counsel was that
the reopening of discovery would result in the expenditure of
additional effort and time by counsel to edit and revise
Defendants' motion for summary judgment, which according
to Defendants' counsel, was near completion. The
undersigned perceives no inordinate imposition, let alone any
prejudicial effect, which would result from the customary
obligation of retained counsel to amend motions and memoranda
in accordance with any court order. Unlike a request to amend
to add additional parties or claims, or to attempt to depose
witnesses unknown to the non-movant, here Defendants were on
notice of Plaintiffs intent to take depositions at the outset
of the discovery proceedings and the testimony sought is
relevant, if not integral, to Plaintiffs claims. Defendants
cite no authority in support of the proposition that the need
to edit a memorandum constitutes a showing of prejudice
sufficient to defeat a motion to reopen discovery.
court's fourth and principal consideration is whether
Plaintiff was diligent in his attempts to obtain the desired
information and preserve his disputes within the discovery
period allocated by the court. Relying primarily on
Hussain v. Nicholson,435 F.3d 359, 364 (D.C. Cir.
2006), Defendants argue that the lack of diligence exhibited
by Plaintiff's retained counsel is equally attributable
to Plaintiff, and thus Plaintiff is not entitled to an
extension of time to conduct depositions. See
Defendants' Opposition at 3. The facts warranting the
denial of reopening in Hussain, however, are
distinguishable from those present in the instant case. In
Hussain, the plaintiff moved to reopen discovery
after the close of discovery and after the defendant
moved for summary judgment. Here, Plaintiff went beyond the
actions of Mr. Hussain who simply complained of his
counsel's lack of diligence after the fact; and sought to
order the transcript of the post-discovery status conference
at which his lawyer represented that discovery was largely
concluded, resumed his pro se status, and filed the pending
motion. The court is unaware of how Plaintiff's conduct
could be described as anything less than diligent. While in
Hussain, the district court did attribute the
shortcomings of Mr. Hussain's counsel during discovery to
him as the client, the thrust of the court's
consideration rested equally on the fact that the plaintiff
"had not been completely deprived of discovery" and
had conducted "lengthy depositions" at the