Degirolamo v. Daily & Haskins et al

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE:
LAWRENCE WITTMER, SR. and
NIOMA WITTMER, et al.,
Debtors.
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ANTHONY J. DEGIROLAMO,
Plaintiff,
v.
DAILY & HASKINS, et al.,
Defendants.
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CHAPTER 7
CASE NO. 08-61618
JOINTLY ADMINISTERED
ADV. NO. 11-6007
JUDGE RUSS KENDIG
MEMORANDUM OF OPINION
(NOT FOR PUBLICATION)
Now before the Court is Defendants’ motion for extension of time to respond to
plaintiff’s discovery requests filed on January 26, 2012. The plaintiff (“Trustee”) filed a response
to Defendants’ motion on February 9, 2012. Defendants did not file a reply.
The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1334 and the general
order of reference entered in this district on July 16, 1984. Venue in this district and division is
proper pursuant to 28 U.S.C. § 1409. This is a core proceeding pursuant to 28 U.S.C. §
157(b)(2)(O).
This opinion is not intended for publication or citation. The availability of this opinion,
in electronic or printed form, is not the result of a direct submission by the Court.
The court incorporates by reference in this paragraph and adopts as the findings and
orders of this court the document set forth below. This document was signed
electronically at the time and date indicated, which may be materially different from its
Dated: 10:05 AM February 23, 2012
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BACKGROUND
The Trustee filed this adversary proceeding alleging legal malpractice against the
Defendants on the basis that the Defendants’ legal services and advice to the debtors fell below
the applicable standard of care. In order to proceed with the adversary proceeding, the Trustee
sought to discover information from the Defendants which the Defendants asserted was subject
to attorney-client privilege. As a means to obtain this information, the Trustee asserted that he
holds the rights to the debtors’ attorney-client privilege and waives such privilege. On October
17, 2011, Defendants filed a motion for determination of whether the Trustee can waive the
attorney-client privilege of individual debtors. On November 30, 2011, the court entered a
memorandum of opinion and order providing that the Trustee may waive the debtors’ attorney-
client privilege as to the Defendants in this adversary proceeding.
On January 4, 2012, Defendants filed a motion to extend time to appeal under
Bankruptcy Rule 8002(c) and a Notice of Appeal of the court’s memorandum of opinion and
order of November 30, 2011. On February 2, 2012, the court entered an order denying the
motion to extend time to appeal. Further, on February 2, 2012, the Clerk of Court entered a
notification regarding an appeal to the district court, advising the district court of the Notice of
Appeal and the denial of the motion to extend time to appeal. The district court entered the
Notice of Appeal and assigned it case number 5:12cv262. The appeal is currently pending
before the district court and on February 16, 2012, the Honorable John R. Adams entered an
order requiring Defendants to show cause why the appeal should not be dismissed for lack of
jurisdiction.
FACTS
On December 8, 2011, Trustee served Requests for Admission, Requests for Production
of Documents, and Interrogatories (“discovery requests”) on defendant John A. Daily and, on or
about December 23, 2011, Trustee served discovery requests on the other defendants. It is
undisputed that Trustee granted Defendants’ request to extend the deadline to respond to the
discovery requests until January 27, 2012.
Defendants filed a motion to extend the time to respond to Trustee’s discovery requests
on January 26, 2012, seeking “an extension until two weeks subsequent to obtaining a ruling on
the pending appeal.” 	On February 9, 2012, Trustee filed a response to Defendants’ motion
asserting inter alia that the motion is Defendants’ attempt to further delay the discovery process.
LAW AND ARGUMENT
Pursuant to Federal Rules of Civil Procedure 33, 34, and 36, the responding party has 30
days after being served with discovery requests to respond with its answers unless the court
orders a longer or shorter time period to respond to discovery requests. “The decision of
whether to extend discovery is at the discretion of the court.” Mason v. Myers (Martin Designs,
Inc.), Case No. 08-60431, Adv. No. 10-6013 (Bankr. N.D. Ohio Nov. 10, 2010) (citing Majewski
v. Automatic Data Processing, Inc., 274 F.3d 1106 (6th Cir. 2001)). The court must consider
whether the exercise of its discretion results in actual and substantial prejudice to the parties.
Polec v. Nw. Airlines, Inc. (In re Air Crash Disaster), 86 F.3d 498, 516 (6th Cir. 1996) (citing In
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re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (6th Cir. 1982)).
This adversary proceeding was filed on February 3, 2011 and, since that time, as Trustee
notes, Defendants have filed many motions that have delayed the forward motion of the
proceeding. Trustee argues that these motions were intended to delay the adversary proceeding
and the discovery process. Further, Trustee argues that since he already granted one extension to
Defendants, that another extension is not necessary. The court is not convinced.
The court does not believe that Trustee stands to be prejudiced by an extension of the
discovery response deadline. Trustee makes no argument of how an extension will result in
actual and substantial prejudice to him. Discovery was only served on Defendants in December
2011 and has not been ongoing for a protracted period of time. Further, there is no indication
that the information sought by Trustee is timely or otherwise necessary to expedite. On the other
hand, Defendants, as well as the debtors, could be prejudiced if forced to respond to the
discovery requests before the district court has made a final determination on the appeal. Thus,
the court finds that no actual or substantial prejudice to Trustee will result from an extension of
the discovery response deadline and grants the Defendants an extension of time to respond.
The question arises of when Defendants shall answer the discovery requests. Defendants
request “an extension until two weeks subsequent to obtaining a ruling on the pending appeal.”
Trustee notes that this is an ambiguous time period and the court agrees. Defendants’ request for
an extension can be interpreted to mean two weeks after this court’s February 2, 2012
memorandum of opinion and order or two weeks after the district court enters a final order on the
appeal. At the time that Defendants’ motion was filed, the court had not issued its February 2,
2012 memorandum of opinion and order denying Defendants’ motion to extend time to appeal
and, thus, Defendants did not know the outcome of the motion. Given that Defendants did not
withdraw the motion to extend discovery response deadline after this court’s February 2, 2012
memorandum of opinion and order was issued, the court assumes that Defendants seek to extend
the discovery response deadline until two weeks after the district court enters a final order on the
appeal.
Accordingly, the court finds that Defendants shall have 14 days from the entry of a final
order from the district court to respond to Trustee’s discovery requests. Trustee is free to move
to terminate the extension in the event of protracted delay. An order will be entered
contemporaneously with this memorandum of opinion.
# 	# 	#
Service List:
Mark A. Weintraub
3900 Key Center
127 Public Square
Cleveland, OH 44114
Anthony J. Degirolamo
Courtyard Centre, Suite 307
116 Cleveland Ave., N.W.
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Canton, OH 44702
Audrey Bentz
Janik LLP
9200 S. Hills Boulevard
Suite 300
Cleveland, OH 44147
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