granted in part and r the filing dispositive Civ. No. 1:15-CV-1060 ion of the deadline fo ; , to extend the deadline to complete certain , to extend the deadline to complete on certain issues while reserving on others. As on certain issues while reserving ; & TOWN OF ; & TOWN nded discovery period, the Court received a Letter- nded discovery period, the Court Town of aintiff’s counsel requests time to obtain a computer aintiff’s counsel requests time ptember 30, 2015. Dkt. No. 6, Am. Compl. The Compl. 30, 2015. Dkt. No. 6, Am. ptember Defendants. Plaintiff, On February 8, 2017, the Court held a telephone On February 8, 2017, the Court inter alia Id. I. BACKGROUND DECISION & ORDER A. Plaintiff’s Complaint ; INVESTIGATOR BRIAN ; INVESTIGATOR . Town of Guilderland Police Department Town of Guilderland Town of Guilderland Police Department Town of Guilderland This action was commenced An Amended 1, Compl. on August 27, 2015. Dkt. No. On the eve of the close of the already-exte - v - Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 1 of 10 1 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case Complaint was then filed as of right on Se motions. Dkt. 48, Pl.’s Lt.-Mot. In addition, Pl Dkt. motions. expert and engage in expert disclosure. several rulings conference on the record and made requests are Plaintiff’s below, set forth during that conference, and summarized denied in part alleges Complaint thatAmended 14, 2014, Plaintiff and an on the evening of November GUILDERLAND, GUILDERLAND, DANIEL J. STEWART United States Magistrate Judge discovery, as well as a corresponding extens limited Motion from Plaintiff’s counsel seeking, Plaintiff’s Motion from H&M HENNES & MAURITZ L.P.; OFFICER TODD & MAURITZ L.P.; OFFICER TODD H&M HENNES ROBERTS, Department Guilderland Police LEACH, (BKS/DJS) UNITED STATES DISTRICT COURT STATES DISTRICT UNITED OF NEW YORK DISTRICT NORTHERN EARLE, RANDOLPH C. SENIOR INVESTIGATOR THOMAS FUNK, SENIOR INVESTIGATOR

DJ S . Id at ¶¶ Id.

1 ation of the Fourth and then released Plaintiff in the so contacted the Guilderland one or more of the security officers told officers the security of one or more voluntarily waited until police arrived to voluntarily waited until police arrived to the register attendant at which point the discrepancy ntiff intended to purchase some clothes. Am. some to purchase ntiff intended to the H&M store located inside the Crossgates store located to the H&M at ¶¶ 33 & 112. Defendant Guilderland Police at ¶¶ 33 & 112. Defendant Guilderland ) excessive force in viol at ¶ 27. After “swip[ing]” Plaintiff’s card, at ¶ 27. After “swip[ing]” the iped, which showed the correct information. iped, which showed the correct information. Id. ed Plaintiff, and walked him through Crossgates ed Plaintiff, and walked him sweatpants and brought the item to the register in brought the item sweatpants and -2- Id. Plaintiff had on his possession at the station were egistered” as a Visa card ending with 7505. egistered” as a Visa e most recent conference, is that the Plaintiff initially swiped the e most Plaintiff attempted to use a payment card associated with to use a payment Plaintiff attempted at ¶¶ 30-31. H&M employees al at ¶¶ 30-31. H&M employees Id. at ¶ 53. As part of the follow-up investigation, at ¶ 53. As part of the follow-up Officer Roberts Id. at ¶¶ 43-46 & 50-52. Guilderland Police at ¶¶ 43-46 & 50-52. Guilderland Id. at ¶¶ 35-38. After an investigation, lasting at ¶¶ 35-38. After an investigation, about two hours, the officers . at ¶ 32. Plaintiff indicates that he Id Id. . at ¶ 26. At the register, . at ¶ 26. At the register, Id The Court’s understanding, The based upon th 1 The Amended Complaint alleges the following claims against the Defendants: (1) illegal against the Defendants: claims alleges the following Complaint The Amended The employee contacted H&M store security, and contacted H&M store security, and The employee Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 2 of 10 2 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case Mall, located in Guilderland, New York, where Plai New York, in Guilderland, Mall, located acquaintance – both African American males – went males American – both African acquaintance Compl. at ¶¶ 23-25. Plaintiff selected a “pair of at ¶¶ 23-25. Compl. order to pay.” his “MasterCard ending with 3605.” account H&M employee told Plaintiff that the card “r told H&M employee at ¶¶ 55-56. (2 detention in violation of the Fourth Amendment; returned to H&M and had Earle’s MasterCard sw 28-29. to wait inside the store. Plaintiff Police Department. card.” payment “straighten out the issue with his theOfficer Todd Roberts arrived at store,arrest that the credit cards that allegedly determined validly his and not stolen. Crossgates Mall parking lot. Mall in handcuffs. card and then, when questioned further, supplied his MasterCard was noted.

DJ S , a discovery . at ¶¶ 58-163. The . at ¶¶ 58-163. inter alia Id H&M their complete point of sale H&M their complete ed regarding the cash register readout and ed regarding the cash register readout on several occasions, solicited the Court to in plaintiff for use of a stolen credit card was error in printing out two digits on the receipt.”). ition in this lawsuit was the that operative event ition in this lawsuit was the that 42 U.S.C. § 1981; (4) illegal detention under New detention under § 1981; (4) illegal 42 U.S.C. xpressed its view that such a wide ranging demand the Amended Complaint and asserted numerous the Complaint Amended for November 14, 2016; rebuttals were to be served for November That Scheduling Order specifically provided that That Scheduling Order specifically -3- ey had reasonable suspicion and/or probable cause ey had reasonable 48. The H&M Defendants also rely on a common law also rely on a common 48. The H&M Defendants to be completed by September 28, 2016, and Defendants’ by September to be completed duling Order was issued, setting forth, duling Order was issued, setting forth, B. Discovery History desire to obtain from Defendant desire to obtain from . 2016. Dkt. No. 17. Id During the Rule 16 Conference a discussion ensu During the Rule 16 Conference a Following the Rule 16 Conference, the parties, A Rule 16 Conference 2, 2015, and the on the was the Court on December held with Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 3 of 10 3 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case deadline to serve their expert disclosures was set deadline to serve their expert disclosures 28, 2016. by November pos initial related technical issues. The Plaintiff’s and the Court e with all manuals, billing software, was not proportionally relevant to the needs of this particular case. service of Plaintiff’s expert disclosure was service of Plaintiff’s expert disclosure at ¶ 64 (“The sole Compl. glitch. Am. was a computer which led to his arrest and detention, defendants relied upon to arrest and deta information Plaintiff’s counsel indicated his deadline of December 27, December deadline of an at the cash register made that the H&M computer York law. New York State and battery under and (5) assault State law; Defendants have answeredGuilderland Police th that including a claim defenses, affirmative Dkt. No. 9 at ¶¶ 47- to detain the Plaintiff. Law § 218. Dkt. No. 12 at ¶ 32. as New York General Business privilege codified Pretrial Sche following date, a Uniform Fourteenth Amendments; (3) discrimination under under (3) discrimination Amendments; Fourteenth

DJ S 2 Dkt. No. 35, Pl.’s Lt. for that card for a limited period a limited that card for for . Upon receipt and review of the records, t, I authorized and directed that a subpoena t, I authorized and directed that a Id tiff’s credit card report in order to determine card report in tiff’s credit ecorded for Mr. Earle’s transaction. Dkt. No. ecorded for Mr. edit card, which was issued to an individual located in ties, I directed that such report be provided to ties, I directed that ance in obtaining the credit card history for the ance in obtaining on the date in question.” e mediation deadline to August 22, 2016, and I e mediation the parties. Dkt. No. 43, Text Order, dated June sactions were registered. Dkt. No. 27, H&M Lt.- sactions were registered. fendant’s proposed subpoena, Plaintiff’s counsel computer software and operation manual of the operation manual software and computer New York, on November 14, 2014, in the amount of $20.75. of amount 14, 2014, in the New York, on November -4- records; I also noted that the discovery deadline was records; I also noted that the discovery review all transaction records in camera d Apr. requests, the Court 27, 2016. As to Plaintiff’s discovery in camera review. Dkt. No 32, Text Order, dated March 15, 2016. Approximately one 2016. Approximately 32, Text Order, dated March 15, review. Dkt. No in camera The records that were produced disclosed that the cr 2 On December 12, 2016, just prior to the expiration of the discovery period, Plaintiff’s 12, 2016, just prior to On December Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 4 of 10 4 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case the Court issued an Order allowing disclosure to 7, 2016. 34, H&M Lt.-Mot. In stating his position on De 34, H&M Lt.-Mot. In stating his credit card number which the cash register at H&M r which the credit card number renewed requests regarding “disclosure of the intervene and rule on discoveryintervene a Court Defendants sought 22, 2016, December issues. First, on to Plain dispute over access based upon a conference H&M requested Court assist later, Defendant month what cards he was authorized to use and what tran what cards he was me for an in Crossgates software being run at the H&M store Mot. Following a telephone conference with the par a telephone conference with the Mot. Following Dkt. No. 39, Orderof time. date the reserved until after receipt of 27, 2016, I extended th currently set for December directed the parties to continue to engage in discovery. Based upon the written arguments submitted to the Cour submitted Based upon the written arguments and Loan Association, which issued the subject Visa card, to be issued to the Astoria Savings produce to the Court for an New York City, contained a charge from H&M in Albany, New York City, contained a charge from Dkt. No. 43.

DJ S long since passed. There long since passed. ealing with the all issues raised personnel files for the three non-party ld a conference with the parties in order l issues including: 1) the need to depose a l issues including: 1) the need to e lingering with the parties. of the In light aintiff’s desire to “engage an expert witnessaintiff’s desire to “engage an expert remained in effect. Dkt. No. 47, Text Order, remained ster at Crossgates and the H&M network”; and ster at Crossgates and the H&M network”; to depose three non-party witnesses, each of whom are to depose three non-party witnesses, each of whom of H&M who worked the register during theof H&M who worked the register discovery deadline, the Court received a Letter- discovery deadline, the Court received anted an extension of the discovery deadline to anted an extension deposition of H&M’s global system IT manager. manager. IT deposition of H&M’s global system the Scheduling Order had the Scheduling Order -5- onference, I made several rulings on the record while onference, I made ed that an Order would follow d 2) Plaintiff’s request for copies of 3 Counsel indicated in his letter that he endeavored 3 As noted above, on February 8, 2017, the Court he Within his Letter-Motion, Plaintiff raises severa his Letter-Motion, Within Days prior to the expiration of the newly set Days prior to the expiration of the Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 5 of 10 5 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case . former employees of H&M, but that only two were able to attend a deposition noticed for January 31, 2017. of H&M, but that only two were able to attend a deposition noticed for employees former witnesses 3) Pl prior to the scheduled depositions; point-of-sale regi concerning operation of the H&M by Plaintiff during the made demands 4) document Id to address these discovery issues. During that c reserving on others; I further indicat counsel submitted a Letter-Motionsubmitted counsel 1, 2017. until February be extended that discovery requesting the expert to extend was made disclosure at that time No request 46, Pl.’s Lt.-Mot. Dkt. No. those deadlines set forth in deadlines, and indeed Motion from Plaintiff’s counsel seeking a conference with the Court in order to resolve more Plaintiff’s counsel seeking a conference Motion from to extend the discovery deadline. Dkt. No. 48, Pl.’s Lt.-Mot. discovery disputes and, once again, was also no mention of any enduring discovery disput of any enduring was also no mention gr of the deadline, the Court expiration impending 14, 2016. dated December employee the former non-party witness, namely, transaction with Plaintiff; February 1, 2017, and accordingly extended the dispositive motion filing deadline to March 17, filing deadline to March and accordinglyFebruary 1, 2017, the dispositive motion extended 2017; all otherScheduling Order provisions of the

DJ S . IV C

, 221 R.

. ED all strictly enforce any . (internal quotation marks and . (internal quotation marks Id Kassim v. City of Schenectady , 2010 WL 2680230, at *2 (N.D.N.Y. , 2010 WL P. 16(b)(1) & (b)(3)(A). Once issued, a P. 16(b)(1) & (b)(3)(A).

duling Order] to a district court’s effective . rns that “[t]he Court sh e provides that a court must issue a scheduling court must e provides that a , 2009 WL 1813219, at *3 (N.D.N.Y. June 25, 1813219, , 2009 WL IV d by the court, in consultation with the litigants, C e time to join other parties, amend the pleadings, join other parties, amend to e time

a showing of good cause.” N.D.N.Y.L.R. 16.1(f). a showing of good cause.” N.D.N.Y.L.R. -6- R.

. ED II. DISCUSSION A. The Effect of the Scheduling Order A. The Effect of Syracuse Univ. v. Otis Elevator Co. Wilcox v. RBS Citizens, N.A. Rule 16 of the Federal Rules of Civil Procedur Rule 16 of the Federal “The importance of the [Uniform Pretrial Sche [Uniform of the “The importance In order to obtain relief from a scheduling order, a party must demonstrate good cause for a scheduling demonstrate In order to obtain relief from order, a party must Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 6 of 10 6 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case scheduling order “may be modified only for good cause and with the judge’s consent.” F only for be modified scheduling order “may at the conference. Hereinbelow, I summarize the rulings made during the conference during and issue made the rulings I summarize Hereinbelow, at the conference. parties. raised by the to any other issue rulings as order in a civil action and such order “must limit th limit and such order “must order in a civil action complete F discovery, and file motions.” P. 16(b)(4). In addition, Local Rule 16.1 expressly wa P. 16(b)(4). In addition, Local Rule these, order, and the Court shall not modify deadlines that it establishes in any case management except upon even upon stipulation of the parties, control of a case, cannot be overstated.” and management paper, idly entered, piece of Such an order “is not a frivolous F.R.D. 363, 365 (N.D.N.Y. 2003). by counsel without peril.” which can be cavalierly disregarded citation omitted). “Deadlines imposed under a Rule 16 scheduling order are not mere suggestive under a Rule 16 scheduling order are not mere imposed “Deadlines citation omitted). deadlines establishe guideposts; they are meaningful intended to insure that the ends of justiceadjudication of and efficient and the need for prompt controversies are met.” July 1, 2010). the requested alteration.

DJ S Kassim v. City of Kassim v. City Carnrite v. Granada Carnrite ., 192 F.R.D. 66, 67 ., 192 F.R.D. 66, , 2005 WL 6021864, at , 2005 WL . (quoting . (quoting Id of the two former employees whom employees of the two former position. During the conference, the position. During the conference, se is where there was an intervening event se is where there e the Court agrees to extend the discoverye the Court agrees to extend the ng that the file may contain information which contain information ng that the file may e if there is any regarding relevant information will be in New York City, where the witness will be in New York City, where -7- on for the separation from H&M. Defense counsel on for the separation from Corkrey v. Internal Rev. Serv Rev. v. Internal Corkrey Duval v. U.S Xpress Enterprises, Inc. Duval v. U.S Xpress party with diligence, then cannot establish that it has proceeded ithdrew his request for the files Id. B. Plaintiff’s Discovery Requests for purposes of completing this de for purposes of completing . (quoting Id table could not have reasonably been met.” been met.” not have reasonably table could 175 F.R.D. 439, 446 (W.D.N.Y. 1997)). “Good cause requires a greater showing “Good cause requires a greater 1997)). 446 (W.D.N.Y. 175 F.R.D. 439, , 221 F.R.D. at 366 (citing , 221 F.R.D. at March 31, 2017 With regard to Plaintiff’s current request for an extension regard to Plaintiff’s current request With of the discovery deadline, the With regard to personnelWith files of the nonparties, I note first that during the telephone Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 7 of 10 7 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case Court finds that the Plaintiff has established good cause for an extension of time in order to complete good cause for an extension of time Court finds that the Plaintiff has established a deposition and therefor of a non-party employee, (N.D.N.Y.2000)). If the moving (N.D.N.Y.2000)). If the moving inquiry should stop. the court's deadline to 2009) (citations omitted). To demonstrate good cause “a party must show that despite their show that despite “a party must good cause To demonstrate omitted). 2009) (citations the time diligence Hosp. Group, Inc., than excusable neglect.” of good cau 13, 2005)). On example *2 (N.D.N.Y. Oct. conference. or the court at the initial by the parties that was not foreseen Schenectady the deposition parties agreed that the venue of apparently resides. conference, Plaintiff’s counsel w it appears that counsel employee, he has already deposed. However, with regard to the remaining determin requests a copy of the file so that he may dishonesty as well as to glean the specific reas objected to this discovery on relevance grounds, noti

DJ S . March 31, 2017 ork. Dkt. No. 48 at p. written discovery demands entative. Attorney Oliver notes that despite entative. Attorney Oliver notes that , to submit narrowly tailored, and relevant, narrowly tailored, and , to submit the Court’s practice of reviewing practice of the Court’s police en. This individual was a fact witness and was demands by this date will allow the Defendant allow by this date will demands s held at the demand of Plaintiff’s counsel and s held at the demand d. If after a good faith attempt there remains a there remains faith attempt d. If after a good t demands because of the technical nature of the t demands invitation and instead directed counsel for H&M invitation and instead ssgates and the H&M netw tiff’s counsel requested that the Court perform an the Court perform requested that tiff’s counsel At the time of the conference, counsel had not yet At the time -8- intends upon fashioning intends upon fashioning red/received, the ruling made during the conference red/received, the ruling made February 28, 2017 file question and review it with Plaintiff’s counsel in an attempt review it with Plaintiff’s counsel file question and review of the personnel file, in line with the personnel review of Finally, Plaintiff’s counsel requests additional time to obtain an expert regarding theFinally, Plaintiff’s counsel requests additional time Next, Plaintiff’s counsel indicates that he Plaintiff’s Next, Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 8 of 10 8 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case supplemental discovery demands; service of these service of discovery demands; supplemental deadline of to respond prior to the expiration of the newly extended discovery stands and Plaintiff is granted until stands and Plaintiff based upon the most recent deposition of an H&M repres recent based upon the most individualthe fact that the deposition of that 13, 2017, he needs the was conducted on January documen transcript in order to prepare appropriate sense to the Court. This makes subject matter. the Court is presently to have the transcript expedited. While him obtained the transcript and I urged unsure whether such transcript has been orde operation of H&M’s point-of-sale register at Cro 3. The basis for this request is the recently held above-referenced deposition of H&M’s global of technicalmanager systems. This deposition wa Swed Stockholm, required the witness to travel from is both irrelevant, and possibly privileged. Plain privileged. and possibly is both irrelevant, in camera in camera personnel files. However, the Court declined that personnel files. the obtain a copy of to immediately if anything should be discloseto agree upon what its for Court to the submitted be can document that document, particular a to regard with dispute review.

DJ S the after Kassim v. City untimely expert testimony is real expert testimony untimely deadline, and now, four months deadline, and now, four at p. 4. The Court disagrees. at p. 4. The Court he seeks leave to retain an expert, who he seeks leave to Id. his Letter Request for an extension of the re than one year that followed the Rule 16 re than one year that followed p. 8. It is not clear whether the impetus to hire p. 8. It is not clear whether the impetus H&M representative, but such claim is of no H&M representative, but such claim intiff expects to employ . . . perhaps a consumer intiff expects to employ inception of the case, but has apparently taken no inception of the case, but has apparently ding his opinion, this should allow Plaintiff the allow Plaintiff opinion, this should ding his ourt’s Scheduling Order. No request to extend the not establish due diligence nor good cause for the -9- r own. Second, the Plaintiff’s counsel has known r own. Second, the Plaintiff’s nd, presumably, allow time for Defendants to depose for Defendants allow time nd, presumably, iginally noticed in October 2016, which was iginally noticed in October 2016, il Case Management Plan submitted to the Court prior submitted Plan il Case Management serve expert disclosure, Plaintiff is seeking to retain an expert. prior to the expiration of that prior to the expiration of Plaintiff’s counsel contends that because the technical manager that because counsel contends Plaintiff’s tion caused by the proliferation of , 221 F.R.D. at 366 (citation omitted). Rather, Rather, (citation omitted). , 221 F.R.D. at 366 As an initial point, it should be noted that Earle’s counsel “does not simply seek the untimely “does not simply it should be noted that Earle’s counsel As an initial point, The reasons offered by Plaintiff’s counsel in Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 9 of 10 9 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case not noticed as an expert by H&M. as an expert by not noticed was asked questionswas asked provi thatresulted in him an expert to counter his testimony.” opportunity “to retain disclosure of an expert who has already issued a report and is ready to be deposed.” and is ready to be deposed.” expert who has already issued a report disclosure of an of Schenectady to prepare and issue a report, a would need time the very from glitch” theory about “the computer action evidence on it during the mo to purse expert the expert and perhaps even obtain one of thei one of the expert and perhaps even obtain the parties’ Civ Indeed, as part of Conference. incorrectlyfraud/IT swiped and the information how credit cards could be expert to determine Dkt. No. 15 at displayed, and perhaps other experts.” to the Rule 16 Conference, it was noted that “Pla to the Rule 16 Conference, it was an expert was triggered by the deposition of the since that witness’s deposition was or moment expert disclosure deadline originally set in the C experts was submitted deadline for to the deadline the expiration of after do Court’s established expert deadlines simply requested extension. “The disrup

DJ S , , 221 F.R.D. March 31, 2017 error a defect in the ; and it is further granted in part and denied granted in part May 5, 2017 Kassim v. City of Schenectady Kassim v. Such objections shall be filed with the Clerk with Such objections shall be filed “[a] party may not assign as “[a] party may -10- P. 72(a), the parties have fourteen (14) daysP. 72(a), the parties have fourteen which to file within

. will not be permitted.” be permitted.” will not IV C

R. , it is hereby ED , that the Plaintiff’s discovery-related requests are , that the Plaintiff’s discovery is extended to fact to complete , that the deadline , that the Clerk of the Court serve a copy of this, that the Clerk of the Court serve Order on the parties in . as set forth above; and it is further as set forth above; WHEREFORE ORDERED ORDERED Albany, New York ORDERED Pursuant to F Case 1:15-cv-01060-BKS-DJS Document 50 Filed 02/28/17 Page 10 of 10 of 10 Page 02/28/17 Filed 50 Document 1:15-cv-01060-BKS-DJS Case at 367 (internal quotation marks and citations omitted). and citations marks quotation at 367 (internal in part written objections to the foregoing discovery order. written objections to the foregoing noted in Rule 72(a) the Court. As specifically of and the deadline to file dispositive motions is extended to is extended dispositive motions to file and the deadline objected to.” order not timely SO ORDERED Date: 28, 2017 February and attorneys must know such must and attorneys accordance with the Local Rules.

DJ S