Trombetta v. Novocin

Background

Annamarie Trombetta, proceeding without a lawyer, sued Norb Novocin, Marie Novocin, Estate Auctions Inc., WorthPoint Corp., and other defendants. The action includes claims under the Digital Millennium Copyright Act and the Visual Artists Rights Act. Trombetta’s operative amended complaint also asserted claims for intentional infliction of emotional distress, identity theft under 18 U.S.C. § 1028, and a claim under the New York Artists’ Authorship Rights Act.

The court had extended the fact-discovery deadline at least six times. Fact discovery closed on December 19, 2022. The court later set deadlines for expert disclosures and depositions, and it required all discovery, including expert discovery, to be completed by March 1, 2023.

Motion to Reopen Discovery

Trombetta asked for permission to serve additional discovery requests and briefly reopen fact discovery. She said that she had mistakenly assumed discovery reopened after she was allowed to file her second amended complaint and after defendants filed answers. She also referred to information in a WorthPoint expert report and a declaration by WorthPoint employee Jason Packer that she believed required clarification and supporting documents.

WorthPoint and the Estate Auctions defendants opposed the request. They argued that Trombetta had not shown good cause for modifying the scheduling order, had not been diligent in obtaining discovery before the deadlines, and would cause prejudice and delay by reopening discovery. WorthPoint also stated that its expert report had been timely served and that Trombetta had not timely served rebuttal reports.

Legal Standard

Under Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be changed only for “good cause.” The court explained that good cause generally depends on the diligence of the party seeking the change and whether the deadline could not reasonably have been met despite that diligence. Courts may also consider whether trial is imminent, whether the request is opposed, prejudice to the opposing party, diligence, whether the need for more discovery was foreseeable, and whether the requested discovery is likely to produce relevant evidence.

Court’s Analysis

The court concluded that the factors weighed against reopening discovery. Although trial was not imminent, the parties had spent years completing discovery and moving the case toward dispositive motions and trial. The defendants had opposed the motion and identified additional costs and delays, including possible delay to the Novocins’ bankruptcy proceeding.

The court recognized that Trombetta had been persistent in pursuing her claims but found that her motion did not explain what new discovery she could not have obtained earlier despite the many extensions. The court also found that Trombetta had known about Packer since the early stages of the case and therefore had an adequate opportunity to seek information from or about him before fact discovery closed. The court stated that disputes about witness declarations and expert opinions could be addressed at summary judgment or trial rather than through reopened fact discovery.

The court further found that reopening discovery was unlikely to produce relevant evidence. It noted that the New York Artists’ Authorship Rights Act claim had previously been dismissed with prejudice, that the identity-theft claim relied on a federal criminal statute that did not provide a basis for civil liability, and that the identity-theft allegation had previously appeared in the complaint. Regarding the emotional-distress claim, the court stated that Trombetta did not contend that defendants possessed relevant information about her emotional-distress damages and that she had already had an adequate opportunity to produce her own documents during fact discovery.

Ruling

The court denied Trombetta’s motion to reopen fact discovery and also resolved her two supplemental letters through the same ruling. The court deemed all fact and expert discovery closed. It directed the parties to file any anticipated motions for summary judgment under Rule 56 or motions concerning the admission or exclusion of expert testimony by April 7, 2023. The Clerk was directed to close the filings associated with the motion and letters and mail Trombetta a copy of the opinion and order.