UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLESWORTH RAE,

Plaintiff,

v. Civil Action No. 15-736 (KBJ/DAR)

CHILDREN’S NATIONAL MEDICAL CENTER, et al., Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff 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,

and the D.C. Human Rights Act,

, 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); Plaintiff’s 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 Plaintiff’s original complaint, and denied Defendants’

motion with respect to Counts II, III, and V. 1 Plaintiff’s motion for preliminary injunction was

also denied. The court granted Plaintiff’s oral motion to file an amended complaint.

1 Additionally, the court dismissed all claims brought under Counts II and III alleging violations of (1) the Age Discrimination in Employment Act; (2) Title VII of the Civil Rights Act of 1964 that arose from events that 2 Rae v. Children’s National Medical Center, et al.

Plaintiff 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. 2 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. 31).

This action was subsequently referred to the undersigned United States Magistrate Judge

for full case management. See Minute Order and Entry 3/15/17. Plaintiff’s Motion to Reopen

Discovery (“Plaintiff’s Motion”), filed on March 21, 2017, is pending for determination by the

undersigned. Upon consideration of the motion, Defendants’ Memorandum in Opposition to

Plaintiff’s 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.

CONTENTIONS OF THE PARTIES

Plaintiff 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

occurred prior to March 21, 2014, and (3) the D.C. Human Rights Act that arose from events that occurred prior to February 12, 2014. 2 On September 22, 2016, counsel of record entered her appearance for Defendants. Notice of Appearance (ECF No. 28). Thereafter, on November 8, 2016, Torrance Colvin entered his appearance for Plaintiff, approximately two months after the start of discovery. Notice of Appearance (ECF No. 30). 3 Rae v. Children’s National Medical Center, et al.

employees of Children’s National Medical Center (“CNMC”) and a 30(b)(6) corporate witness. 3

Plaintiff’s 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.

. 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.”

.

Plaintiff, 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,

(D.D.C. 2000). Plaintiff’s Reply at 5-10.

3 Plaintiff seeks to depose the following individuals: Defendant Sarah Donegan, Defendant Darryl Varnado, Defendant Ursula Tachie-Menson, Defendant Zandra Russell; Defendant Kurt Newman; current Children’s National Medical Center (“CNMC”) employees Henry Choi, Yolanda Dyson, and Keith McGlen (Chief of Security); and CNMC’s corporate designee. Plaintiff’s Motion at 1. 4 Rae v. Children’s National Medical Center, et al.

APPLICABLE STANDARD

Federal 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,

. 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.,

(D.D.C. 2013).

DISCUSSION

Plaintiff 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 counsel’s

deficiencies. 5 Rae v. Children’s National Medical Center, et al.

The 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.,

(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.

The 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

Plaintiff’s intent to take depositions at the outset of the discovery proceedings and the testimony

sought is relevant, if not integral, to Plaintiff’s 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.

The 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 6 Rae v. Children’s National Medical Center, et al.

allocated by the court. Relying primarily on Hussain v. Nicholson,

(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 administrative

level.

at 363 (citing Hussain v. Principi,

(D.D.C. 2004), aff’d sub nom.

Hussain v. Nicholson,

(D.C. Cir. 2006)). Here, the record is devoid of evidence

indicating that Plaintiff received any discovery from the Defendants, with the exception of initial

disclosures and the few admissions which were not objected to by defense counsel.

Upon consideration of the final two prongs, the undersigned finds that the opportunity to

take depositions, and to seek a resolution of the discovery disputes, is crucial to Plaintiff’s ability

to substantiate his claims of discrimination. Were the undersigned to deny Plaintiff’s request for

a relatively brief extension of the discovery period, Plaintiff would be dramatically disadvantaged

at the summary judgment stage of the proceedings, having attained little to no discovery. 7 Rae v. Children’s National Medical Center, et al.

Furthermore, the undersigned finds that a denial of Plaintiff’s motion at this stage of the

proceedings would simply occasion the filing by Plaintiff of a motion to reopen discovery,

pursuant to Federal Rule of Civil Procedure 56(f), after Defendants file their motion for summary

judgment, ultimately prolonging the litigation process, and perhaps, increasing the likelihood that

all parties would incur additional costs and expend additional time on this matter.

CONCLUSION

For all of the foregoing reasons, it is, this 4th day of May, 2017,

ORDERED that Plaintiff’s Motion (ECF No. 34) is hereby granted in part and it is;

FURTHER ORDERED that the discovery period is extended to and including Friday,

June 16, 2017, to allow Plaintiff to take up to five depositions; and it is;

FURTHER ORDERED that all motions to compel with respect to the discovery

conducted to date shall be filed by no later than Monday, May 15, 2017, and that oppositions and

replied shall be filed in the time prescribed by the Local Rules; and it is

FURTHER ORDERED that a post-discovery status conference is scheduled for 2:00 p.m.

on Monday, June 19, 2017; and it is;

FURTHER ORDERED that the stay of the deadline for the filing of dispositive motions

is extended through Monday, June 19, 2017.

/s/ . DEBORAH A. ROBINSON United States Magistrate Judge