United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant’s Motion to
Compel (Doc. No. 35), Motion for Leave to Amend Counterclaim
(Doc. No. 40), and Motion to Exclude Evidence (Doc. No. 44).
The motions are fully briefed and ready for
disposition. Also before the Court is Plaintiffâs
Motion to Reset Trial Setting and Amend/Modify Pretrial
Deadlines. (Doc. No. 61).
Magruder Construction Co., Inc. (“Magruder”)
filed this action on February 20, 2018, seeking, among other
things, a declaration of the rights and obligations of the
parties in relation to a Settlement Agreement reached by the
parties in December 2014 in Bank of America, N.A. v.
Magruder Construction Co., Inc., No. 4:14-CV-809 JAR
(E.D. Mo.) (the “BOA Lawsuit”). Both Magruder and
Defendant Philip Gali (“Gali”) were parties to
the BOA Lawsuit. Specifically, Magruder seeks a declaration
that it has no obligation to pay any deferred compensation,
salary, or other benefits to Gali.
25, 2018, Gali filed a counterclaim asserting two causes of
action: benefits due under 29 U.S.C. § 1132(a)(1)(B) of
ERISA; and nonpayment of wages and benefits related to work
he allegedly performed for Magruder between August 11, 2014
and December 30, 2014., On Magruder’s motion, the Court
dismissed Gali’s counterclaim on December 10, 2018 for
nonpayment of wages and benefits for failure to provide any
legal basis for recovery.
about November 20, 2018, Gali propounded written discovery on
Magruder. Magruder timely served its responses and objections
on December 20, 2018, objecting to a number of discovery
requests on the basis of, inter alia,
relevance. In particular, Magruder argues that Gali
is seeking discovery on a claim (nonpayment of wages and
benefits) that was dismissed by the Court and thus irrelevant
to the parties’ claims and defenses. On May 15, 2019,
the day discovery closed and some five months after receiving
Magruder’s responses, Gali filed a motion to compel.
May 15, 2019, Magruder filed its motion for summary judgment
on Count I of the Complaint and the First Claim for Relief in
the Counterclaim and for partial summary judgment on Count II
of the Complaint. (Doc. No. 28). In support of its motion,
Magruder relies upon a series of email messages (Exhibit 7,
Doc. No. 31-2) which Gali alleges contain commentary
between the parties to the BOA Lawsuit and their counsel
regarding the Settlement Agreement as well as statements made
by Gali and on his behalf through his attorney.
on May 22, 2019, five months after the deadline for amending
pleadings and one week after the close of
discovery, Gali moved to amend his counterclaim to
assert two new claims against Magruder - one for quantum
meruit and one for unjust enrichment. In support of his
motion, Gali states that through the course of discovery, he
has learned and located additional information that better
forms his claim for the work he performed for Magruder from
August 11, 2014 through December 21, 2014. Magruder opposes
the motion, arguing that Gali has not demonstrated good cause
and that granting Gali leave to amend his counterclaim at
this stage of the proceedings would unfairly prejudice it. In
reply, Gali asserts that Magruder has frustrated his ability
to secure evidence to support his claims for non-payment of
wages by refusing to produce responsive documents in
discovery, thereby contributing to the delay in his
2, 2019, Gali filed a motion to exclude evidence pursuant to
Rule 37. Gali argues that because Magruder never produced the
emails in Exhibit 7 before filing them as support for its
summary judgment motion, Magruder should not be allowed to
use them. Gali also seeks additional time to conduct
discovery regarding the matters contained in Exhibit 7.
5, 2019, Gali filed his response in opposition to
Magruder’s motion for summary judgment. (Doc. Nos. 48,
consideration, Gali’s motion for leave to amend his
counterclaim will be denied. The motion is clearly untimely
as it was made five months after the deadline for amending
pleadings. Although Gali states that through the course of
discovery, he has learned and located additional information
that better forms his claim for the work he performed for
Magruder from August 11, 2014 through December 21, 2014, he
does not specify what additional information was discovered
or why he was previously unable to plead claims for quantum
meruit and unjust enrichment. In fact, there was no need for
additional discovery since all of these allegations were
known to Gali well in advance of the case deadlines as
evidenced by his responses to the discovery propounded on him
by Magruder. Gali could have advanced these claims at any
Gali’s motion to compel will be denied as untimely.
Pursuant to the Court’s Case Management Order all
written discovery was to be completed no later than May 15,
2019. (Doc. No. 25). The Case Management Order further
provided that “[m]otions to compel shall be pursued in
a diligent and timely manner.” Gali propounded written
discovery on Magruder on November 20, 2018. Magruder timely
served its responses and objections on December 20, 2018, yet
Gali waited until May 15, 2019 – the day discovery
closed – to file a motion to compel.
said, Magruder is clearly relying on material that was never
disclosed to Gali in discovery. It is difficult to discern
any prejudice to Gali because he knew of these settlement
negotiations and the identities of the attorneys in the BOA
lawsuit and was actually included on two of the emails. In
any event, because Magruder is relying on these emails to
support its motion for summary judgment, the Court finds that
reopening discovery for a period of fourteen (14) days from
the date of this Order is appropriate to allow Gali an
opportunity to conduct some limited written discovery on the
three emails at issue and the facts surrounding those emails.
Following the expiration of the fourteen-day discovery
period, Gali shall have seven (7) days to supplement his
response to Magruder’s summary judgment motion.
Magruder shall then have seven (7) days to reply.
light of these rulings, the Court will vacate the October 21,
2019 trial setting, pending its ruling on ...