IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PREMIUM PAYMENT PLAN,

Plaintiff,

v.

SHANNON CAB CO. T/A GOLDEN

LIMO SERVICES A/T/A LUXURY

LIMO,

Defendant.

Civil Action No. 04-4669

MEMORANDUM ORDER

December 21, 2010 Pollak, J.

As I have explained at greater length in a prior opinion dated June 16, 2010, see

Docket No. 69, the plaintiff in this diversity case, Premium Payment Plan, has brought a

breach of contract case claiming that it was contractually authorized by defendant

Shannon Cab to purchase insurance and that after insurance was purchased and financed

by plaintiff, Shannon Cab did not make payments on the insurance. Plaintiff further

alleges that defendant’s attorney, Willan Franklyn Joseph (“Joseph”), ratified the contract

by making claims against the insurance policy. Before the court now is an appeal by

defendant from an order by Magistrate Judge M. Faith Angell granting plaintiff’s motion

to compel the production of certain documents. Docket No. 75. For the reasons stated

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below, I vacate the order.

In my June 16 opinion, I affirmed in part and denied in part a previous discovery

order. Docket No. 69. In that order, I upheld the portion of Judge Angell’s order

permitting plaintiff to depose defense counsel Joseph, based on evidence that emerged

during discovery that Joseph provided Genoveva Valle (“Valle”), the president and sole

shareholder of the defendant, non-legal assistance with her day-to-day business

transactions with her insurance broker, Michael Gardner. Thereafter, in a letter dated July

6, 2010, plaintiff’s counsel Gerald W. Spivack (“Spivack”) wrote to Joseph requesting

“copies of any and all documents and/or files pertaining to” five insurance claimants

identified by name and claim number, as well as “any and all documentation relating to

payments made by your office on behalf of Shannon Cab Co.” Docket No. 76-1.

Spivack’s letter further stated that once he “had an opportunity to review these documents

I will immediately schedule your deposition for a mutually agreeable time.” Id. On

August 9, 2010, Spivack faxed a follow-up letter to Joseph noting that he had not yet

received a response to his July 6 letter and indicating that he would file a motion to

compel if he did not receive a response within ten days. Docket No. 77-2. That same day,

Joseph replied to Spivack’s July 6 letter, objecting to the request for documents as

untimely. Plaintiff then brought a motion to compel production of the documents, which

defendant opposed. Docket Nos. 71–74. Judge Angell granted the motion to compel on

October 7, 2010. Docket No. 75. Defendant now appeals Judge Angell’s decision on

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several grounds. Docket No. 76.

A magistrate judge’s adjudication of a non-dispositive motion will be set aside

only if it is found to be “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A);

accord Fed. R. Civ. P. 72(a).

First, defendant argues that plaintiff did not try, as required by Local Rule 26(f), to

resolve the discovery dispute before filing the motion to compel. See Local Rule 26(f)

(“No motion or other application pursuant to the Federal Rules of Civil Procedure

governing discovery or pursuant to this rule shall be made unless it contains a

certification of counsel that the parties, after reasonable effort, are unable to resolve the

dispute.”). This court has previously found that counsel for a party failed to comply with

Local Rule 26(f) when:

counsel’s only efforts to resolve this dispute prior to presenting it to the

court took the form of the letter which originally requested the depositions

followed by a series of telephone conversations between the secretaries of

the attorneys involved in the action. There have apparently been no direct

communications between counsel.

Crown Cork & Seal Co. v. Chemed Corp., 101 F.R.D. 105, 106 (E.D. Pa. 1984) (Pollak,

J.). Here, by contrast, there were direct communications between counsel, and in those

communications defense counsel specifically objected to the plaintiff’s document request

as untimely because the request was made after the close of discovery. By expressing this

objection, defendant indicated that it was unlikely to change its position and produce the

requested documents to plaintiff. (And indeed, defendant continues to press this very

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objection in this appeal.) Under these circumstances, plaintiff was not required to

continue attempting to resolve the dispute prior to filing a motion to compel.

Defendant’s second argument is more meritorious. Defendant argues that plaintiff

failed to file a motion for an extension of time in accordance with Fed. R. Civ. P. 6(b),

which requires a party seeking an extension after the time has expired to file a motion

demonstrating that it failed to act because of excusable neglect. Rule 6(b) imposes “a

strict requirement that litigants file formal motions for Rule 6(b) time-extensions when

attempting to file in contravention of a scheduling order.” Drippe v. Tobelinski, 604 F.3d

778, 784 (3d Cir. 2010) (citing Smith v. District of Columbia, 430 F.3d 450, 456 (D.C.

Cir. 2005)). The Third Circuit has recently emphasized that “a party must make a formal

motion for extension of time and the district court must make a finding of excusable

neglect . . . , before permitting an untimely motion.” Id. at 785.

The requirements of Rule 6(b) are to be observed. On April 30, 2009, Judge

Angell issued an order requiring all remaining fact-based discovery to be completed by

June 1, 2009. Since that time, no subsequent order extending discovery has been

requested or granted. Plaintiff’s current motion was styled as a motion to compel, not as

a motion to extend the time for discovery, and the motion and Judge Angell’s order make

no mention of excusable neglect.

Accordingly, Judge Angell’s order granting plaintiff’s motion to compel is

VACATED, without prejudice to plaintiff’s entitlement, on remand, to renew its motion

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to compel in conjunction with a motion to extend the period for discovery in accordance

with Rule 6.

BY THE COURT:

/s/ LHP

Pollak, J.

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