PAMELA MATHY, United States Magistrate Judge
Came on this day to be considered: (1) the motion of defendants and third party plaintiffs, Gutierrez et alia (collectively referred to as "defendants") to re-urge motion to amend pleadings filed November 30, 2000 (docket no. 109), the response of third party defendant Paragon Communications, Inc. (referred to herein as "AOL/Time Warner") filed December 4, 2000 (docket no. 110); (2) AOL/Time Warner's motion to extend certain scheduling order deadlines filed December 12, 2000 (docket no. 111), defendants' opposition filed December 15, 2000 (docket no. 112) and AOL/Time Warner's reply filed December 19, 2000 (docket no. 113); and (3) the status of this case.
Summary of Aspects of the Procedural History
The procedural history of these three consolidated cases is somewhat complicated. The following summary is set forth not as a complete summary of the procedural history but to provide a context for the motions under review and to assist the parties and the District Court when evaluating how this Order relates to the report and recommendation on dispositive motions issued this date and to a pending appeal to the District Court of a related issue (see docket nos. 117, 119 and 121).
On January 11, 2000, these three cases were consolidated in cause number SA-99-CA-880-FB. The cases generally concern the allegedly unauthorized broadcast of championship boxing matches. Following the disposition of a pre-answer motion to dismiss in SA-99-CA-880-FB, the District Court entered Orders to govern the disposition of the consolidated cases — the Order Concerning Consent Trials, Discovery, Pretrial Matters and Pretrial Order (docket no. 49), an Advisory regarding discovery (docket no. 50) and a Scheduling Order (docket no. 59). The Scheduling Order, filed April 17, 2000, provided, among other things, that the deadline for filing motions to amend was July 27, 2000, the discovery cut-off date was September 29, 2000 and the deadline for filing dispositive motions was October 30, 2000.
Plaintiff Prostar and J J complain about the broadcast of a September 13, 1997 match and plaintiff Top Rank complains about the broadcast of a September 18, 1998 match.
This scheduling Order superceded and voided the time deadlines provided in any pre-consolidation scheduling order, such as docket no. 4 entered in SA-99-CA-880-FB. Similarly, the post-consolidation Order Concerning Consent Trials, Discovery and Pretrial Matters (docket no. 49) controls if there would be any variation between its provisions and the provisions of any such Order entered pre-consolidation, such as docket no. 3 entered in SA-99-CA-880-FB.
On or about March 20, 2000, defendants served amended notices of intent to depose corporate representatives of plaintiffs Prostar, Inc., Entertainment by J J, Inc. and Top Rank, Inc. (collectively referred to as "plaintiffs" unless otherwise noted) with accompanyingduces tecum requests. In response, plaintiffs filed a motion to quash. On April 4, 2000, the District Court granted the motion to quash (docket no. 53), noting:
Apparently, it is undisputed plaintiffs are entitled to some compensation for the showing of their product in a commercial establishment irrespective of defendant Gutierrez' purported innocent good faith in doing so. There does not appear to be any
scienter or
mens rea requirement in the statute. The Court observes this dispute is becoming one of biblical proportions, far in excess of what should be the settlement value or amount in controversy. For the time being, the motion to quash (docket no. 45) is GRANTED in its entirety until such time as a resolution occurs between Mr. Gutierrez and Paragon concerning who is responsible for payment" (docket no. 53 at 1-2).
On July 26, 2000, defendants filed a motion to amend pleadings in order to "assert additional affirmative defenses" and "to include additional allegations" (docket no. 76 at 2). Defendants tendered an amended pleading with his motion which was filed one day before the July 27, 2000 deadline to amend pleadings as established in the April 17, 2000 scheduling Order. AOL/Time Warner's response included in its response an argument to support a cross-motion to strike the portion of the proposed amended third party complaint that alleged that AOL/Time Warner violated the implied warranty provisions of the Texas UCC and on the ground that such a claim was without merit (docket no. 79). On July 27, 2000, AOL/Time Warner filed a motion to supplement pleadings to add a counterclaim for attorney's fees and court costs under the Texas Deceptive Trade Practices Act (docket no. 77). On August 4, 2000, the parties filed an agreed motion to extend the deadlines for discovery and for filing dispositive motions (docket no. 78). The parties stated that on August 2, 2000, they submitted their disputes to mediation and "agreed to stay all discovery and seek an order extending the deadlines to complete discovery and file dispositive motions, to enable the parties to focus on settlement negotiations and avoid incurring additional costs and attorneys' fees while negotiations are on-going" (docket no. 78 at 1).
The proposed second amended answer appended to the motion included a new paragraph 7 in the section captioned defendants' affirmative defenses, which pleaded that plaintiff's claims are barred because defendant Armando Gutierrez was a bona fide purchaser for value of the fights in question "without notice that his reception of the fights was for residential rather than commercial use and, thus, may have been unauthorized" (docket no. 76, attachment at 12).
Included within the proposed second amended answer was an argument that plaintiffs had failed to state a claim upon which relief could be granted because 47 U.S.C. § 605 does not apply to programming over a cable network and " 47 U.S.C. § 503 does not apply to situations where the cable operator has authorized the defendant to receive the cable communication" (docket no. 76, attachment at 12-13). In addition the proposed second amended third party complaint added paragraphs 14, 15 and 16 to allege, in sum, that Gutierrez is a implied third party beneficiary of plaintiffs' contract with AOL/Time Warner; that AOL/Time Warner engaged in false, misleading or deceptive acts under § 17.45 of the Texas Business and Commerce Code; and AOL/Time Warner breached warranties provided by §§ 2.312, 2.314 and 2.315 of the Texas Business and Commerce Code.
As noted by defendants, AOL/Time Warner's combined response and motion to strike did not address expressly the added defense or the Fed.R.Civ.P. 12(b)(6) argument (docket no. 81).
On August 22, 2000, the District Court entered an Order that addressed the agreed motion to extend deadlines and AOL/Time Warner and defendants' motion to amend. The Court granted the agreed motion to extend discovery to December 13, 2000 and to extend the deadline for filing dispositive motions to January 10, 2001 (docket no. 82). The Order denied defendants' motion to amend, AOL/Time Warner's cross motion to strike defendants' proposed amended pleading and AOL/Time Warner's motion to amend "subject to re-urging, if necessary, in the event the parties are unable to resolve this matter through mediation and/or settlement discussions." The Order also stated: "All other provisions of the Scheduling Order, signed April 16, 2000, shall remain in full force and effect" (docket no. 82 at 2).
On September 5, 2000, defendants filed a motion to resume discovery against plaintiffs (docket no. 84). Defendants alleged that "[t]he controversy could not be settled [in mediation]" and that the consolidated cases "will need to proceed to trial" (docket no. 84 at 2). Defendants argued that because settlement negotiations had failed, it should be entitled to receive the documents requested in the duces tecum notice and depose the corporate representatives of plaintiffs (docket no. 84 at 2). On September 25, 2000, the District Court entered an Order which denied defendants' motion to resume discovery against plaintiff (docket no. 91). The import of the Order reiterates that the District Court had decided that "until it is determined which defendant — defendant Gutierrez or third-party defendant Paragon Communications, Inc. ("Paragon") — is responsible for payment" to plaintiffs, "discovery between Gutierrez and plaintiffs is to be held in abeyance" (docket no. 91 at 1).
On January 9, 2001, one day before the deadline for the filing of dispositive motions, AOL/Time Warner filed a motion to extend the deadline for the filing of dispositive motions. AOL/Time Warner sought to file a second dispositive motion "that raises issues of federal piracy law not addressed in [its] original motion for summary judgment" (docket no. 117). Plaintiffs opposed the motion. On January 16, 2001, Magistrate Judge John Primomo denied the motion to extend (docket no. 117). On January 23, 2001, AOL/Time Warner appealed that Order, filing its objections/appeal before the District Court and tendering its proposed supplemental motion for summary judgment (docket no. 119). That appeal is pending before the District Court.
On February 1, 2001, this case was referred to the undersigned for pretrial management.
Pending Motions
The pending motions and related pleadings addressed in this Order are defendants' motion to re-urge the motion to amend pleadings filed November 30, 2000 (docket no. 109) and AOL/Time Warner's motion to extend certain scheduling order deadlines filed December 12, 2000 (docket no. 111). Other pending dispositive motions are addressed in a simultaneously issued report and recommendation.
Defendants' Motion to Re-Urge
The motion to re-urge the motion to amend, asks for leave to re-urge a motion to amend pleadings, originally filed by defendants on July 26, 2000 and denied by the District Court on August 22, 2000, "subject to re-urging if necessary, in the event the parties are unable to resolve this matter through mediation and/or settlement negotiations" (docket no. 82 at 2). The District Court's pretrial order provides, in sum, that requests for extension of a scheduling order deadline must be filed before the expiration of that deadline and that [t]he Court will be strongly disinclined to grant any extensions of time" (docket no. 49 at 2, ¶ 3). Because the District Court's August 22, 2000 Order did not preclude the re-urging of the motion to amend even though the deadline for amending had already expired, this Order undertakes a further examination of the motion to re-urge and does not summarily deny the motion as untimely.
The substance of defendants" argument, presented in the proposed pleading, that plaintiffs failed to state a claim under the Federal Communications Act has been addressed in connection with defendants" and AOL/Time Warner's pending cross-motions for summary judgment.
As noted in the summary of the procedural history above, the deadline to amend pleadings was July 27, 2000.
Although defendants did file the motion to re-urge several months ago (November 30, 2000), nevertheless, the motion was filed more than two months after both AOL/Time Warner and defendants had filed motions for summary judgment (see docket nos. 86 and 87, filed September 13 and 14, 2000, respectively) and almost three months after settlement negotiations ended without success (see docket no. 84 at 2, filed September 5, 2000, referencing unsuccessful settlement). The motion to amend contains no explanation as to why the motion to re-urge was not filed in a more timely fashion. As noted, the District Court denied defendants' original motion to amend without prejudice to re-urging in the event settlement failed. Indeed, it would appear that the motion to re-urge should have been tendered on or about September 5, 2000 — when defendants told the Court that settlement had not been successful and that the cases "will need to proceed to trial" (docket no. 84 at 2). Defendants have offered no sufficient explanation as to why defendants waited several more months before seeking to re-urge its motion to amend.
Moreover, that several month delay increases the prejudice to the parties were the motion to re-urge to be allowed. As it stands, by the time the response time expired on the motion to re-urge (that is, by December 14, 2000), the discovery deadline already had expired (on December 13, 2000). The motion to re-urge contains no sufficient explanation as to why defendants should be permitted to amend their answer and third party complaint and, at the same time, deprive their party opponents of the opportunity to conduct discovery on the new defense and third party claims. The motion to re-urge does not request an extension of the discovery deadline and, within days of the filing of the motion to re-urge (that is, on December 15, 2000), as discussed further below, defendants strenuously opposed the extension of the discovery deadline.
In sum, the motion to re-urge should be denied for lack of timeliness.
AOL/Time Warner's Motion to Extend
In the motion to extend certain scheduling order deadlines filed December 12, 2000, AOL/Time Warner asks that "[i]f its motion for summary judgment is not granted in its entirety, [AOL/Time Warner] wants to take the depositions of two additional fact witnesses, to properly prepare this case for trial" (docket no. 111 at 2). AOL/Time Warner does not name the two individuals in its motion, and, instead of asking that discovery be allowed only for the two required depositions, asks that the discovery deadline be extended from December 13, 2000 to January 31, 2001 and, further, that the dispositive motion deadline be extended from January 10, 2001 to February 28, 2001 (docket no. 111 at 2). AOL/Time Warner states that plaintiffs Top Rank, Inc. and Entertainment by J J, Inc. do not oppose the motion but Gutierrez did. There is no reference as to conference with plaintiff Prostar, Inc. (docket no. 111 at 3). Therefore, this motion does not comply with Local Rule CV-7's conference requirement.
Defendants filed a separate response and opposition, asking that: discovery not be reopened, the dispositive motion deadline not be extended and this "case proceed to trial as rapidly as possible" (docket no. 112 at 2). Thus, defendants are prepared to go to trial on the evidence developed thus far in discovery.
Although the District Court did deny defendants' motion to resume discovery against plaintiffs, the District Court did not stay discovery between defendants and AOL/Time Warner and, indeed, after settlement negotiations failed four AOL/Time Warner employees were deposed (docket no. 111 at 2). Gutierrez was deposed prior to settlement negotiations (id.).
AOL/Time Warner's motion does not explain why discovery should be extended across-the-board or why the Court, several months after the filing of certain dispositive motions and when the dispositive motion deadline had already been extended once before, should consider a new round of dispostive motions. Even as read to apply only to the proposal to depose two witnesses, AOL/Time Warner's motion does not provide a reason why those witnesses could not have been deposed within the scheduling order deadlines.
In addition, on January 16, 2001, another Magistrate Judge denied a later-filed motion by AOL/Time Warner to extend the time for the filing of dispositive motions from January 10, 2001 to January 24, 2001 (docket nos. 114, 115 and 117). Although the January 16, 2001 Order did not expressly refer to the portion of AOL/Time Warner's motion which asks that the dispositive motion deadline be extended until February 28, 2001, the January 16, 2001 Order must be considered to have implicitly denied that request. In other words, if sufficient justification has not been established to justify extending the dispositive motion deadline to January 24, 2001, it would seem a matter of course that sufficient justification has not been established to extend that same deadline to February 28, 2001. No argument has been presented to the undersigned asking the undersigned to reconsider another Judge's ruling on a later-filed motion that partially disposes of the earlier filed, pending motion. Although the January 16, 2001 Order is on appeal to the District Court (docket no. 119), unless it is overturned by the District Court it is "law of the case" for the undersigned.
In sum, the motion to extend certain deadlines should be denied.
The Status of this Case
The same day as entering this Order, the undersigned has issued a report and recommendation considering the remaining pending dispositive motions in this case. If the District Court accepts the report, in addition to the possible consideration of certain procedural matters, the parties will be preparing to try the remaining claims in this case. Therefore, the remaining portions of this Order establish deadlines for the remaining matters to be addressed by the parties prior to trial, that is, the filing of the final proposed pretrial order, any motions in limine and responses to any motions in limine. These deadlines have been selected without prejudice to a party asking for reconsideration based on the timing of the District's Court's review of the pending report since it is the intention of the undersigned to enter a procedural order to further the final disposition of this case but not to require the parties to prepare a final proposed joint pretrial order before the District Court has entered its Order on the pending report.
Although the Local Rules have been amended effective December 1, 2000 to require the filing of certain pretrial submissions instead of a pretrial order (Local Rule CV-16(e)), the District Court previously entered a pretrial order (docket no. 49) that expressly required the filing of a joint proposed pretrial order. Therefore, unless otherwise directed by the District Court, this Order effectuates that prior Order and requires the filing of a joint proposed pretrial order.
Upon consideration thereof,
IT IS ORDERED that defendants Gutierrez et alia's motion to re-urge motion to amend pleadings (docket no. 109) is DENIED.
IT IS ALSO ORDERED that AOL/Time Warner f/k/a Paragon Communications's motion to extend certain scheduling order deadlines (docket no. 111) is DENIED.
IT IS ALSO ORDERED that the parties shall file a joint proposed pretrial order in the format previously indicated by the District Court (docket no. 49) and any motions in limine on or before June 4, 2001.
IT IS ALSO ORDERED that any responses to any motions in limine shall be filed on or before June 11, 2001.
IT IS SO ORDERED.