Jackson v. Federal Express, No. 12-1475 (2d Cir. 2014)
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Plaintiff appealed from the grant of summary judgment dismissing her medical leave, disability, employment discrimination, and retaliation claims and denial of her pro se request to reopen discovery. The court affirmed the judgment and clarified the obligations of a district court in granting judgment under Federal Rule of Civil Procedure 56. The court held that when a party, whether pro se or counseled, fails to respond to an opponent's motion for summary judgment, a district court may not enter a default judgment. Rather, it must examine the movant's statement of undisputed facts and the proferred record support and determine whether the movant is entitled to summary judgment. Where a partial response to a motion is made, a distinction between pro se and counseled responses is appropriate. In all cases in which summary judgment is granted, the district court must provide an explanation sufficient to allow appellate review. In this case, the district court fulfilled all these requirements. The court held that Vermont Teddy Bear v. 1-800 Beargram Co. has no bearing on this case. Accordingly, the court affirmed the district court's judgment on this matter and also affirmed the denial of plaintiff's pro se motion to reopen discovery.
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12-1475-cv Jackson v. Federal Express 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: January 15, 2014 Decided: September 9, 2014) Docket No. 12-1475-cv - - - - - - - - - - - - - - - MONIQUE JACKSON, Plaintiff-Appellant, v. FEDERAL EXPRESS, Defendant-Appellee. - - - - - - - - - - - - - - - B e f o r e: WINTER, STRAUB, and HALL, Circuit Judges. Appeal from a grant of summary judgment by the United 24 States District Court for the District of Connecticut (Robert 25 N. Chatigny, Judge) dismissing appellant s claims and denying 26 her pro se request to reopen discovery. 27 district court s obligations in granting summary judgment where 28 a motion for such judgment is fully or partially unopposed. 29 affirm. 30 31 32 33 34 35 36 37 38 39 40 We write to clarify a EDWARD SCARVALONE, Doar Rieck Kaley & Mack, LLC, New York, NY, for Plaintiff-Appellant. DAVID P. KNOX, Federal Express Corporation, Memphis, TN, for Defendant-Appellee. We 1 2 3 4 WINTER, Circuit Judge: 5 summary judgment dismissing her medical leave, disability, 6 employment discrimination, and retaliation claims and denial of 7 her pro se request to reopen discovery. 8 obligations of a district court in granting summary judgement 9 under Fed. R. Civ. P. 56. Monique Jackson appeals from Judge Chatigny s grant of We write to clarify the We affirm. BACKGROUND 10 11 We view the record in the light most favorable to appellant. 12 Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223- 13 24 (2d Cir. 1994) (on de novo review of summary judgment, all 14 ambiguities must be resolved and all inferences drawn in favor 15 of the non-moving party). 16 unless noted otherwise. 17 The following facts are undisputed, Appellant is an African-American woman who worked as a 18 senior service agent at Federal Express ( FedEx ) from 1996 to 19 May 2007. 20 ( HR ) complaint against her manager, Franklin Benjamin, claiming 21 that he sexually harassed her, and against the operations 22 manager, Billy Lipscomb, claiming that he ignored her complaints. 23 Both managers were subsequently transferred to different 24 facilities. 25 supervised by new managers, Ralph Sylvester became appellant s 26 direct manager. In 2006, appellant filed an internal human resources After a short interval during which appellant was 2 1 FedEx s termination policy provides that if an employee 2 receives any combination of three warning letters or performance 3 counseling letters in a twelve-month period, the employee is 4 subject to termination. 5 times between September 2006 and May 2007, FedEx terminated her. 6 After appellant was disciplined five On March 16, 2010, appellant filed the present complaint 7 against FedEx alleging, inter alia, that Sylvester and Benjamin 8 were friends and that Sylvester terminated her in retaliation for 9 complaining about Benjamin s sexual harassment. The complaint 10 further alleged that Sylvester used racial slurs in her presence, 11 pressured her to return to work while she was on medical leave 12 recovering from an automobile accident, refused to accommodate 13 her work to lingering injuries after she returned, and terminated 14 her in part because of her age and race. 15 claims for: 16 sexual harassment, 42 U.S.C. § 2003e-3(a); (ii) termination 17 because of her race, 42 U.S.C. § 2003e-2(a); (iii) violation of 18 the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; (iv) 19 violation of the Americans with Disabilities Act, 42 U.S.C. § 20 1201.01 et seq.; and (v) age discrimination, 42 U.S.C. § 610 et 21 seq. The complaint asserted (i) retaliation for filing an internal complaint of 22 After the court-ordered schedule of seven months for 23 discovery had expired, FedEx moved for summary judgment on all 24 claims. In compliance with Fed. R. Civ. P. 56(c) and Local Rule 3 1 56(a)(1), it submitted a statement of 124 facts that FedEx 2 claimed to be undisputed. 3 declarations from Sylvester and two FedEx HR managers and 4 excerpts from appellant s deposition. 5 assertions cited specific support in the record. 6 through counsel, responded with a Local Rule 56(a)(2) statement 7 of undisputed and disputed facts, additional documentary 8 evidence, and an opposition brief. 9 statement explicitly admitted 111 of FedEx s statements of The motion was accompanied by sworn Each of the 124 factual Appellant, Appellant s Rule 56(a)(2) 10 undisputed facts and denied 13. 11 numerous matters undermining appellant s non-retaliation claims. 12 Details are discussed infra. 13 investigation of Benjamin s conduct, Sylvester s use of racial 14 epithets, and the circumstances of appellant s termination. 15 II of her response to FexEx s statement of undisputed facts 16 claimed that the following issues of material fact were 17 disputed: 18 19 20 21 22 23 24 25 26 27 28 29 30 The admitted facts included The denials concerned the 1. Plaintiff filed a harassment complaint against a FEDEX employee in February of 2000 [sic], after which, her performance rating declined. . . . The decline was motivated, in part, by the filing of the internal complaint. 2. When Plaintiff zeroed timecards in March of 2007, and was reprimanded for it, she did so under the express instruction of Sylvester. . . . Sylvester s motivation to write-up and subsequently terminate Jackson was . . . motivated, in large part, to retaliate 4 Part 1 2 3 4 Her opposition brief stated that [d]iscovery has yielded the 5 existence of issues of fact with respect to one of [appellant s] 6 claims: 7 should be denied as to that claim. 8 9 against Jackson for filing an internal complaint against Benjamin. Title VII retaliation, and argued that summary judgment The district court concluded that appellant tacitly admits that there are no issues of fact with regard to the [non- 10 retaliation] claims, and dismissed them in the absence of 11 opposition. 12 statement of undisputed facts and confirmed the lack of a dispute 13 as to those facts. 14 VII retaliation claim in detail and granted summary judgment in 15 favor of FedEx on that claim. It also noted that it had [r]eview[ed] appellee s The district court then discussed the Title 16 While the motion for summary judgment was briefed and 17 pending, appellant, acting pro se although still represented by 18 counsel, filed a request to reopen discovery in order to permit 19 the deposition of certain FedEx employees, including Ralph 20 Sylvester, and to obtain time-keeping reports ( FAMIS reports ) 21 that appellant had prepared. 22 court that her attorney failed to subpoena [her] former 23 operational manager Ralph Sylvester . . . [and] allow[ed] 24 discovery to close on February 1, 2011. 25 to appellant because it was not signed by her counsel. 26 responded with a letter to the court explaining that he had Appellant stated in a letter to the 5 The letter was returned Counsel 1 previously requested production of the FAMIS reports, but FedEx s 2 counsel had stated that they were not in possession, custody, or 3 control of this document. 4 of Sylvester was largely unnecessary because it likely would 5 be favorable to FedEx. He further stated that the deposition 6 Appellant had sent a letter to her counsel, which predated 7 the letter to the court, asking him to withdraw because she did 8 not think he had her best interest at heart and that she was 9 truly dissatisfied that [he] allowed discovery to close without 10 the FAMIS reports. 11 the district court granted the request on October 20, 2011. 12 Appellant then filed a pro se motion to reopen discovery 13 reiterating the reasons given in her previous letter. 14 denied the motion in the order granting summary judgment. 15 Appellant s counsel moved to withdraw, and Appellant then brought this appeal pro se. The court On November 13, 16 2012, we dismissed appellant s retaliation claim as lacking an 17 arguable basis in law or fact, but we appointed pro bono counsel 18 to brief the grant of summary judgment on the claims deemed 19 abandoned by the district court.1 20 21 22 DISCUSSION a) Summary Judgment on the Non-Retaliation Counts We review a district court s grant of summary judgement de 1 We express our gratitude to counsel for this service. 6 1 novo, because such a motion may be granted only when the moving 2 party shows that there is no genuine dispute as to any material 3 fact and it is entitled to judgment as a matter of law. 4 Civ. P. 56; Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001). 5 Relying on Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 Fed. R. 6 F.3d 241 (2d Cir. 2004), appellant argues the district court 7 failed to carry out its responsibilities in entering summary 8 judgment when, after a review of the assertions of undisputed 9 facts, it dismissed the non-retaliation claims as unopposed. 10 11 We disagree. Rule 56 allows a party to seek a judgment before trial on 12 the grounds that all facts relevant to a claim(s) or defense(s) 13 are undisputed and that those facts entitle the party to the 14 judgment sought. 15 of facts deemed by the moving party to be undisputed must be 16 submitted by that party for each such fact. 17 56(c); D. Conn. Local R. 56(a)(1). 18 reference admissible evidence (when presented at trial in the 19 form of testimony or other permissible method) in the record 20 tending to prove each such fact, e.g., deposition testimony, 21 admissions, answers to interrogatories, affidavits, etc., see 22 Fed. R. Civ. P. 56(c)(2) (nonmovant may object that cited 23 material is inadmissible); D. Conn. Local R. 56(a)(3) (specific 24 citation to evidence must be to the affidavit of a witness Vt. Teddy Bear, 373 F.3d at 244. 7 A statement Fed. R. Civ. P. Such a statement must 1 competent to testify as to the facts at trial or to evidence 2 that would be admissible at trial ); Raskin v. Wyatt Co., 125 3 F.3d 55, 66 (2d Cir. 1997) ( only admissible evidence need be 4 considered by the trial court in ruling on a motion for summary 5 judgment, and the Federal Rules of Evidence govern such 6 admissibility). 7 motion. 8 statements of undisputed facts proferred by the movant being 9 deemed admitted. The non-moving party need not respond to the However, a non-response runs the risk of unresponded-to Fed. R. Civ. P. 56(e)(2); see, e.g., Jones v. 10 Lamont, No. 05 Civ. 8126, 2008 WL 2152130, at *1 (S.D.N.Y. 2008) 11 ( In view of [pro se] plaintiff s failure to respond to the 12 motion, the well supported factual allegations set forth in 13 defendants Rule 56.1 statement are deemed admitted. ), aff d, 14 379 Fed. App x 58 (2d Cir. 2010). 15 A non-response does not risk a default judgment, however.2 16 See Vt. Teddy Bear, 373 F.3d at 246 (contrasting Rule 55 default 17 with summary judgment requirements). 18 be entered, the district court must ensure that each statement of 19 material fact is supported by record evidence sufficient to 20 satisfy the movant s burden of production even if the statement 21 is unopposed. Before summary judgment may Id. at 244 (district court must examine an 2 As Vermont Teddy Bear discussed, many default rules such as Rule 55, Rule 4(a), Rule 16(f), and Rule 37(b)(2) are based on the ancient common law axiom that a default is an admission of all well-pleaded allegations against the defaulting party, while [m]otions for summary judgment . . . lack these ancient common law roots. 373 F.3d at 246. 8 1 unopposed motion for summary judgment to determine if it has met 2 its burden of demonstrating that no material issue of fact 3 remains for trial and that the citation to evidence in the 4 record supports the [unopposed] assertion (internal quotations 5 omitted)). 6 the record even if uncited. 7 course, the court must determine whether the legal theory of the 8 motion is sound. 9 automatically grant summary judgment on a claim simply because In doing so, the court may rely on other evidence in Fed. R. Civ. P. 56(c)(3). And, of Thus, Rule 56 does not allow district courts to 10 the summary judgment motion, or relevant part, is unopposed. 11 However, as discussed infra, a partial response arguing that 12 summary judgment should be denied as to some claims while not 13 mentioning others may be deemed an abandonment of the unmentioned 14 claims. 15 In the present case, the district court fulfilled all these 16 requirements. 17 facts submitted by appellee, which included relevant citations to 18 the record. 19 appellee was entitled to judgment as a matter of law and granted 20 summary judgment. 21 was committed, but that the district court failed to write a 22 sufficiently elaborate essay. 23 24 It [r]eview[ed] the statement of undisputed Based on those statements, it concluded that Appellant argues, not that substantive error Much of appellant s argument rests on an overreading of Vermont Teddy Bear. That decision involved a pro se defendant 9 1 who failed to oppose a Rule 56 motion and had a judgment entered 2 against him that included, inter alia, a permanent injunction, 3 statutory damages of $150,000, and reimbursement for litigation 4 expenses. 5 multi-factor balancing tests, the district court had simply 6 endorsed the notice of motion as granted, with slight 7 modifications. 8 9 10 373 F.3d at 243. Id. Although the legal claims involved We vacated and remanded. Id. at 247. We do not quarrel with Vermont Teddy Bear. We simply hold that it has no bearing on this case. First, Vermont Teddy Bear involved a pro se litigant, and we 11 are less demanding of such litigants generally, particularly 12 where motions for summary judgment are concerned. 13 IRS, 28 F.3d 6, 8 (2d Cir. 1994) (district court should have 14 afforded [pro se litigants] special solicitude before granting 15 the . . . motion for summary judgment ); Tracy v. Freshwater, 623 16 F.3d 90, 101-02 (2d Cir. 2010) (discussing various forms of 17 solicitude shown to pro se litigants). 18 court decision appeared to be the equivalent of a default 19 judgment. 20 for appellate review. 21 in the present appeal. 22 See Ruotolo v. Second, the district Third, this court was left without a record sufficient None of these critical elements is found First, appellant was represented by counsel during discovery 23 and at the time of the motion for summary judgment. 24 counsel responded to the motion, and the motion was fully 10 Moreover, 1 submitted before the conflict with appellant over discovery 2 developed. 3 pro se litigant understands the stakes in such a motion, see 4 Ruotolo, 28 F.3d at 8 ( The failure of a district court to 5 apprise pro se litigants of the consequences of failing to 6 respond to a motion for summary judgment is ordinarily grounds 7 for reversal. ), is simply irrelevant in the present matter.3 8 Therefore, the concern we show over ensuring that a Second, there is nothing in the record of this matter that 9 suggests that the district court was entering a default judgment. 10 The motion for summary judgment complied with Rule 56 and, unlike 11 the circumstances in Giannullo v. City of New York, 322 F.3d 139, 12 142 (2d Cir. 2003), each statement of proposed undisputed facts 13 was supported by a citation to the record sufficient to prove 3 We also note that, in Vermont Teddy Bear, the pro se was a defendant who had had a serious judgment entered against him. A grant of summary judgment to a plaintiff who bears the burden of proof of material facts must be supported by a strong proffer of evidence. The evidentiary proffer accompanying the motion must show the lack of any dispute of material facts that the plaintiff-movant has the burden of proving and that those undisputed facts entitle the plaintiff-movant to judgment. A defendant, of course, takes a risk in not responding to such a motion but may still prevail because Rule 56 requires the court to examine and verify that the plaintiff-movant s submission suffices to support an entry of judgment. Vt. Teddy Bear, 373 F.3d at 244 (citing Amaker, 274 F.3d at 681). However, where, as here, a defendant moves for summary judgment against a plaintiff who bears the burden of proving the factual elements of the claims asserted, the risk of a plaintiff not opposing a motion in whole or in part is even greater. To be sure, the district court must examine the defendantmovant s submission for evidentiary and legal sufficiency. But when a defendant-movant submits an evidentiary proffer sufficient to defeat a claim, a plaintiff who bears the burden of proof cannot win without proffering evidence sufficient to allow a trier of fact to find in its favor on each fact material to its claim(s). See Powell v. Nat l Bd of Med. Exam rs, 364 F.3d 79, 84 (2d Cir. 2004) (once defendant-movant demonstrates an absence of a genuine issue of material fact, plaintiff bears burden of production to show specific facts showing that there is a genuine issue for trial for each such fact). The present appeal is from the grant of just such a defendant s motion. 11 1 each such fact. 2 facts essential to each of her claims, made no proffer with 3 regard to any of her claims except for the retaliation claim. 4 The district court noted that its review of FedEx s statements of 5 undisputed facts confirmed the lack of any dispute of material 6 facts with regard to the non-retaliation claims. 7 of the term unopposed does not necessarily suggest a default 8 rationale; it simply reflects the plain consequences of an 9 appellant s failing to make a sufficient response to a properly 10 11 Appellant, who bore the burden of proving the The court s use supported Rule 56 motion. Moreover, there is a relevant distinction to be drawn 12 between fully unopposed and partially opposed motions for summary 13 judgment in counseled cases. 14 is free to ignore it completely, thereby risking the admission of 15 key facts and leaving it to the court to determine the legal 16 merits of all claims or defenses on those admitted facts, a 17 partial opposition may imply an abandonment of some claims or 18 defenses. 19 reflects a decision by a party s attorney to pursue some claims 20 or defenses and to abandon others. 21 to include all possible claims or defenses, and parties are 22 always free to abandon some of them. 23 response to a motion for summary judgment is a particularly 24 appropriate time for a non-movant party to decide whether to While the opponent to such a motion Generally, but perhaps not always, a partial response 12 Pleadings often are designed Moreover, preparation of a 1 pursue or abandon some claims or defenses. 2 known as a highly useful method of narrowing the issues for 3 trial. 4 Indeed, Rule 56 is Where abandonment by a counseled party is not explicit but 5 such an inference may be fairly drawn from the papers and 6 circumstances viewed as a whole, district courts may conclude 7 that abandonment was intended. 8 proper here. 9 proposed undisputed facts; appellant s opposition brief noted Such an inference would have been Appellant s counsel responded to each of Fed Ex s 10 that discovery has yielded the existence of issues of fact with 11 respect to one . . . claim[]; and the brief argued only that 12 summary judgment should be denied as to that one claim. 13 In contrast, Vermont Teddy Bear involved a motion totally 14 unopposed by a pro se party, and the district court s failure to 15 analyze any of the complex legal and factual issues suggested 16 that it had entered a default judgment. 17 partial response had been made in Vermont Teddy Bear, an 18 examination of the legal validity of an entry of summary judgment 19 should have been made in light of the opposing party s pro se 20 status. 21 Moreover, even if a Rule 56 also requires that a grant or denial of summary 22 judgment is accompanied by an explanation. Fed. R. Civ. P. 23 56(a). 24 overlooked or an incorrect legal standard being applied, we do However, absent some indication of a material issue being 13 1 not require district courts to write elaborate essays using 2 talismanic phrases. 3 82, 87 (2d Cir. 2011) ( strong presumption on review of 4 sentencing that the district court considered all arguments 5 properly presented to [it], unless the record clearly suggests 6 otherwise ); cf. In re Mazzeo, 167 F.3d 139, 142 (2d Cir. 1999) 7 (Fed. R. Civ. P. 52(a) explanation of reasoning does not require 8 punctilious detail or slavish tracing of the claims issue by 9 issue and witness by witness (internal quotations and See, e.g., United States v. Cossey, 632 F.3d 10 alterations omitted)); Badgley v. Santacroce, 815 F.2d 888, 889 11 (2d Cir. 1987) (same). 12 sufficient to allow an informed appellate review, the subject to 13 which we now turn. 14 All that is required is a record Unlike Vermont Teddy Bear, the record here is easily 15 sufficient to allow an informed appellate review. Appellant s 16 non-retaliation claims did not turn on multi-factor balancing 17 legal tests or mixed issues of fact or law on which the movant 18 bore the burden of proof. 19 reasoning is perfectly obvious. 20 the record reveals that plaintiff s case, apart from the 21 retaliation claim, collapsed with her deposition. 22 deposition testimony contradicted important allegations in her 23 complaint, e.g., she testified that she never heard Sylvester use Here, the district court s legal Even a cursory examination of 14 Plaintiff s 1 a racial epithet,4 did not believe that her termination was based 2 on race or age, was not denied medical leave, was simply asked 3 about her expectations for returning to work when on that leave, 4 and was not asked to do work that her injury prevented. 5 the critical facts asserted by FedEx as undisputed were, 6 therefore, referenced to appellant s deposition testimony. 7 Most of In such a case, there is no need for a district court to 8 robotically replicate the defendant-movant s statement of 9 undisputed facts and references to the record or otherwise serve 10 as an assistant to our law clerks. 11 F.3d 171, 175, 177 (2d Cir. 2003) ( an opinion or lengthy order 12 is not required in every case, and review will proceed even in 13 the face of inadequate findings by the district court if we are 14 able to discern enough solid facts from the record to permit us 15 to render a decision (quotations omitted)). 16 our own responsibility to independently confirm the lack of a 17 genuine dispute of material facts. 18 grant of a motion for summary judgment is de novo, leaving a non- 19 movant-appellant free to point out any perceived deficiencies in 20 the movant-appellee s summary judgment papers, and, there being 21 no findings of fact subject to Rule 52(a)(6) plain error review, 4 See Miranda v. Bennett, 322 After all, we have Moreover, our review of a Contrary to the allegations in the complaint, appellant specifically denied hearing Sylvester say anything that was racially derogatory or racially prejudiced or biased. She did mention one individual who allegedly heard [Sylvester] use the racial N word, something like that, but her deposition failed to identify a single admissible, non-hearsay-based incident of racially derogatory language. 15 1 leaving this court free to correct legal errors. 2 identified in the present matter. 3 None have been To sum up, when a party, whether pro se or counseled, fails 4 to respond to an opponent s motion for summary judgment, a 5 district court may not enter a default judgment. 6 examine the movant s statement of undisputed facts and the 7 proferred record support and determine whether the movant is 8 entitled to summary judgment. 9 motion is made -- i.e., referencing some claims or defenses but Rather, it must Where a partial response to a 10 not others - a distinction between pro se and counseled 11 responses is appropriate. 12 court should examine every claim or defense with a view to 13 determining whether summary judgment is legally and factually 14 appropriate. 15 court may, when appropriate, infer from a party s partial 16 opposition that relevant claims or defenses that are not defended 17 have been abandoned. 18 granted, the district court must provide an explanation 19 sufficient to allow appellate review. 20 where appropriate, include a finding of abandonment of undefended 21 claims or defenses. 22 In the case of a pro se, the district In contrast, in the case of a counseled party, a In all cases in which summary judgment is This explanation should, In the present matter, therefore, the process contemplated 23 by Rule 56 has thus been satisfied with regard to dismissal of 24 the non-retaliation claims. 16 1 2 b) Reopening Discovery We also affirm the district court s decision to deny 3 appellant s pro se motion to reopen discovery. We will reverse 4 a district court s ruling regarding discovery only upon a clear 5 showing of an abuse of discretion. 6 151 F.3d 75, 79 (2d Cir. 1998). In re DG Acquisition Corp., 7 Relying on Dunton v. County of Suffolk, 729 F.2d 903 (2d 8 Cir. 1984), as amended, 748 F.2d 69 (2d Cir. 1984), appellant 9 argues that the district court abused its discretion in not 10 reopening discovery when it learned of a conflict between 11 appellant and her attorney. 12 ongoing conflict of interest between a defendant and his 13 attorney, who also represented the municipality. 14 denied that he had a strong interest in avoiding personal 15 liability under 42. U.S.C. § 1983 by arguing that he was acting 16 within the scope of his official duties, while the municipality 17 had a strong interest in avoiding liability under Monell by 18 arguing that he was acting on personal motives. However, in Dunton, there was an 5 The defendant Id. at 908-09.5 In Dunton, a municipality provided counsel to a police officer who, upon seeing his wife engaged in illicit behavior in a car with another man, pulled the man from the vehicle and beat him up. The officer in Dunton alleged a current conflict of interest. He argued that, while it would have been in his best interest to assert that he was entitled to qualified immunity from Section 1983 liability because he was acting within the scope of his duties, his attorney repeatedly stat[ed] that [the officer] acted not as a police officer but as an irate husband. 729 F.2d at 907. The officer argued that counsel, in doing so, was motivated to show that the officer was not acting within the scope of his duties to avoid Monell liability for the municipality. Id. at 907 (citing Monell v. Dep t of Social Servs., 436 U.S. 658 (1978)). We held that there was an imminent threat of serious conflict, 17 1 The situation here, however, is a disagreement over legal 2 tactics, not a conflict of interest. 3 represented FedEx, and no motives-based conflict as in Dunton has 4 been alleged. Appellant s attorney never 5 Even if a client does have a disagreement with her attorney 6 on a matter such as the conduct of discovery, all litigants are 7 bound by the concessions of freely retained counsel. 8 Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277, 9 289 (2d Cir. 2011) (quoting Hoodho v. Holder, 558 F.3d 184, 192 10 (2d Cir. 2009); see also Link v. Wabash R.R. Co., 370 U.S. 626, 11 634 (1962) ( [In] our system of representative litigation . . . 12 each party is deemed bound by the acts of his lawyer-agent. ). 13 Therefore, the district court correctly treated the pro se motion 14 as belatedly seeking to reopen discovery. 15 There was no abuse of discretion in the denial of the 16 motion. Appellant and her attorney had seven months to conduct 17 discovery. 18 Espirit De Corp., 769 F.2d 919, 927 (2d Cir. 1985) (when a party 19 has ample time in which to pursue the discovery that it now 20 claims is essential, a district court has broad discretion to 21 deny a request for further discovery); see also Fed. R. Civ. P. 22 26(b)(2)(C)(ii) (court must limit scope of discovery where the See Burlington Coat Factory Warehouse Corp. v. [and] disqualification would have been appropriate here even before any proceedings began. Id. 18 1 party seeking discovery has had ample opportunity to obtain the 2 information by discovery in the action ). 3 discovery was over, and a fully briefed motion for summary 4 judgment was pending when the request to reopen was made. 5 reopening under those circumstances would seriously undermine the 6 orderly scheduling of discovery and summary judgment motions. 7 The scheduled time for A Moreover, no extra time would have produced the timecards 8 appellant requested because FedEx previously represented that 9 they did not have such materials. Finally, the hoped-for- 10 tripping-up of Sylvester was the legal equivalent of a 11 potentially counterproductive -- in the revelation of more 12 adverse evidence -- lottery ticket of little value. 13 Appellant also argues that the district court abused its 14 discretion by only briefly stating its reasons for denying the 15 motion to reopen discovery. 16 court substantially adopted FedEx s reasons for denying the 17 motion: 18 close of discovery and well past the scheduling order s 19 deadlines; (ii) it fail[ed] to demonstrate good cause for 20 reopening discovery ; and (iii) the motion was futile. 21 a district court is not required to write an opinion or lengthy 22 order in every case, and a court may properly adopt a party s 23 arguments on a given issue instead of issuing an order setting 24 out a free-standing elaboration of the court s views. We again disagree. The district (i) the motion was untimely, filed nine months after the 19 However, Miranda, 1 322 F.3d at 177. 2 denying the request or in not elaborating on the obvious reasons 3 for denying it.6 4 5 The court did not abuse its discretion in CONCLUSION For the reasons stated, we affirm. 6 6 Appellant s request that, if we remand, we also vacate the district court s November 2012 grant of summary judgment on the retaliation claim is denied as moot. 20
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