UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RUTHERLAN ENTERPRISES, INC., 

Plaintiff,

 Civil Action 2:11-cv-859

v. Judge Gregory L. Frost

 Magistrate Judge Elizabeth P. Deavers

SUBSTRUCT SYSTEMS, LLC,

Defendant.

ORDER

This matter is before the Court for consideration of Plaintiff’s Motion for Sanctions and

to Extend Time to Complete Discovery. (ECF No. 22.) Defendant filed its Response in

Opposition to Plaintiff’s Motion on February 12, 2013. (ECF No. 23.) Plaintiff filed its Reply

on February 22, 2013. (ECF No. 25.) For the reasons that follow, Plaintiff’s Motion is

DENIED. 

I.

According to the Complaint, Plaintiff Rutherlan Enterprises has owned and operated

Island Ace Hardware (“ACE”) on the Hawaiian Island of Kauai since 1987. (Compl. ¶ 9, ECF

No. 1.) Defendant Substruct Systems specializes in the design and programming, as well as the

distribution, sale, service and support of point-of-sale (“POS”) computer systems used in the

operation of retail businesses including hardware stores. In December 2008, Plaintiff and

Defendants, through their representatives, entered into a contract. Under the terms of the

contract, Defendant was to provide Plaintiff with new computers, peripheral devices, and

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software (hereinafter referred to as the “System”). Id. at ¶ 13. Plaintiff contends that, in

choosing to enter into the contract, ACE’s representative relied on representations that

Defendant’s representative made with respect to the System’s capabilities and the installation

procedure, as well as the representation that Defendant’s expert personnel would correct any

defects that might arise in the installation, initialization or implementation of the System. Id. at ¶

14. According to Plaintiff, upon installation of the System ACE, employees and management

discovered that it suffered from numerous defects and purported performance deficiencies. Id. at

¶¶ 17, 18. Ultimately, Plaintiff contends that the System’s defects required ACE to uninstall the

System and reinstall its previous POS system. Plaintiff asserts numerous claims, including

claims for breach of contract, unjust enrichment, and fraudulent misrepresentation.

II.

A district court is required to enter a scheduling order, which limits the time “to join

other partiess, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P.

16(b)(3). Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified

only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The primary

measure of Rule 16’s ‘good cause’ standard is the moving party’s diligence in attempting to meet

the case management order’s requirements.” Inge v. Rock Financial Corp., 281 F.3d 613, 625

(6th Cir. 2002); accord Lear v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (“[A] court

choosing to modify the schedule upon a showing of good cause, may do so only if it cannot

reasonably be met despite the diligence of the party seeking the extension.” (internal quotation

marks and citation omitted)). 

Federal Rule of Civil Procedure 37(b)(2) sets forth a laundry list of sanctions, including

dismissal, that a court could impose when a party fails to comply with its discovery orders. Fed.

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R. Civ. P. 37(b)(2). Rule 37(b)(2) adds that “the court must order the disobedient party, the

attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees,

caused by the failure, unless the failure was substantially justified or other circumstances make

an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Several factors are relevant to a

district court’s decision to impose Rule 37 sanctions including “whether the party’s failure to

cooperate in discovery is due to wilfulness, bad faith, or fault.” Freeland v. Amigo, 103 F.3d

1271, 1277 (6th Cir. 1997). Further, Rule 16(f) allows for sanctions, including any sanction

authorized by Rule 37, if a party “fails to obey a scheduling or other pretrial order.” Fed. R. Civ.

P. 16(f). As under Rule 37, Courts have wide latitude in imposing sanctions under Rule 16(f). 

See Estes v. King’s Daughters Med. Ctr., 59 F. App’x 749, 753 (6th Cir. 2003) (“The district

court has discretion to impose whatever sanction it feels is appropriate, under the

circumstances.”). 

III.

A. Motion for Extension of Time

Plaintiff seeks a five-month extension of the January 31, 2013 discovery cutoff date.1

Plaintiff contends that a series of events outside of its control prevented it from completing

discovery by the cutoff date, which warrants an extension of the discovery cutoff date. 

Defendant provides a different version of events, however, and asserts that Plaintiff’s failure to

complete discovery is product of its lack of diligence. (Op. 2-8, ECF No. 23.) The Court finds it

unnecessary to adopt one party’s statement of events over the other, because even under

Plaintiff’s version it has failed to establish good cause to extend the discovery cutoff date. 

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In fact, Plaintiff indicates that “it may take an additional six months (or more)” to

complete the discovery. (Mot. Ex. 1 (Bahgat Aff., ¶ 32), ECF No. 22.)

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1. Plaintiff’s Version of Events

The Court entered its scheduling Order on May 31, 2012, in which it set January 31,

2013 as the date by which all discovery was to be completed. (ECF No. 13.) Plaintiff’s version

of events is set forth in its counsel’s affidavit attached to its Motion for Extension. (Mot. Ex. 1,

ECF No. 22.) Plaintiff contends that it contacted Defendant on August 13, 2012 to attempt to

schedule the depositions of two ACE employees and various representatives of Defendant. Id. at

2. Over the course of the following month, the parties worked to coordinate their respective

schedules to schedule the depositions, to no avail. Id. at 3. In late September the parties agreed

that they would each select random dates and notice the depositions of the other’s employees

with the understanding that the depositions would be rescheduled at a later date. Id. at 3. 

Defendant noticed the depositions of Plaintiff’s employees, which ultimately went forward on

November 13 and 14. Plaintiff, however, was allegedly unable to serve notices for the

depositions of Defendant’s employees until December 7, 2012 due to Hurricane Sandy, which

struck Plaintiff’s counsel’s hometown in New Jersey in late October. Id. 

Upon receiving Plaintiff’s notices of deposition in early December, Defendant informed

Plaintiff that none of the three depositions could proceed as scheduled for various reasons. 

Plaintiff resumed attempts to schedule one of Defendant’s representatives for deposition in

January 2013. Plaintiff set the deposition of Defendant’s representative to take place on January

14, 2013. Id. at 5. Plaintiff did not notice the deposition or schedule the attendance of a court

reporter. Plaintiff later became unavailable on January 14, 2013. Plaintiff has not rescheduled

that employee’s deposition, nor has it scheduled the four additional depositions that Plaintiff still

seeks to take in this case. 

In addition to its purported inability to coordinate the depositions as set forth above,

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Plaintiff contends that additional actions of Defendant justify extending the discovery cutoff

date. Defendant has allegedly indicated from the outset of this case that it did not plan to dispute

liability for breach of contract. During the November 2012 depositions of Plaintiff’s

representatives, however, Plaintiff contends it became clear that Defendant would indeed dispute

liability. Plaintiff posits that it will now be required to retain an expert witness to address

Defendant’s theory of the case. 

Plaintiff also contends that Defendant only recently revealed that it plans to file for

bankruptcy, which will require additional time to discover financial information related to

Defendant and one of its individual representatives. Finally, Plaintiff maintains that in the spirit

of cooperation he offered to take one of Defendant’s representative’s depositions in New Jersey. 

Defendant, however, refused unless Plaintiff agreed to reimburse its travel expenses. Plaintiff

seeks modification of the Court’s Scheduling Order to extend the January 31, 2013 discovery

cutoff date to June 28, 2013. (Mot. 1, ECF No. 22.)

2. Analysis 

Even if the Court accepts the version of events set forth above, Plaintiff has failed to

establish good cause to extend the discovery cutoff date. Again, the “primary measure of Rule

16’s ‘good cause’ standard is the moving party’s diligence in attempting to meet the case

management order’s requirements.” Inge, 281 F.3d at 625. Plaintiff has been anything but

diligent in its pursuit of meeting the Court’s scheduling deadlines. First, despite the Court

entering its Scheduling Order in May 2012, Plaintiff apparently made no attempt to schedule

depositions until three months later in August. (Pl.’s Mot. Ex. 1 at 2, ECF No. 22-1.) Within a

month the parties agreed to select random dates and notice the depositions. Plaintiff, however,

failed to do so until over two months later in December 2012. Id. at 3. Plaintiff maintains that

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Hurricane Sandy caused the two-month delay. But Hurricane Sandy hit New Jersey in late

October, which was one month after the parties agreed to notice the depositions and some five

weeks before Plaintiff served its notices. Plaintiff then apparently waited nearly another month

before attempting to reset one of the several depositions it had noticed for December. Although

the parties agreed on a date for that deposition, Plaintiff never noticed the deposition or

scheduled a court reporter, and then purported to become unavailable on the date in question. 

Plaintiff’s additional arguments are likewise unavailing. The Court has no sympathy for

Plaintiff’s excuse that it allegedly learned for the first time in November that Defendant planned

to dispute liability. Perhaps if it had been more diligent in completing, or even beginning, the

discovery process before late 2012, it would have unearthed Defendant’s theory of the case at

and earlier time. Defendant’s indication that it plans to file for bankruptcy likewise fails to

establish good cause to extend the discovery cutoff date. 

Plaintiff’s actions in this case fall far short of establishing good cause. The Court cannot

find that Plaintiff acted diligently, in any sense of the word. Plaintiff’s Motion for Extension of

Time is, therefore, DENIED. 

B. Motion for Sanctions

For the reasons set forth above, the Court concludes that sanctions against Defendant are

wholly unwarranted. If anything, it was Plaintiff, not Defendant, who failed to comply with the

Court’s scheduling Order. The Court finds no bad faith or failure to cooperate on the part of

Defendant. Freeland, 103 F.3d at 1277. Plaintiff’s Motion for Sanctions is DENIED. 

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IT IS SO ORDERED.

Date: February 28, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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