United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Plaintiff Strategic Decisions, LLC's ("Plaintiff") Motion to Reopen Discovery , Plaintiff's Motion for Reconsideration of the Court's Order denying Plaintiff's Motion for Partial Summary Judgment on its breach of contract claim , and Plaintiff's Motion in Limine and/or for Sanctions .
I. MOTION TO REOPEN DISCOVERY
On December 5, 2014, the Court ordered Defendant The Martin Luther King, Jr. Center for Nonviolent Social Change, Inc. ("Defendant") to show cause why it had not produced the audio recordings of board meetings requested in Plaintiff's First Request for Production of Documents, and explain whether any recordings of Executive Committee meetings contain information relevant to Plaintiff's claims. On December 10, 2014, Defendant responded to the Court's Show Cause Order and stated that it did not have, in its possession, custody or control, audio recordings of board meetings. Defendant also stated that the recording of a July 23, 2013, Executive Committee meeting was the only recording in Defendant's possession. This recording was produced to Plaintiff and the parties do not dispute that it does not contain information relevant to Plaintiff's claims.
On December 23, 2014, Plaintiff moved to reopen discovery for the limited purpose of deposing a representative of Defendant regarding the audio recordings of board meetings and committee meetings. Plaintiff seeks to elicit testimony regarding the existence of audio recordings of board meetings and committee meetings, including whether the audio recordings were lost or destroyed. Plaintiff's request is based on the assumption that the audio recordings, in fact, exist or existed in the past. To support this assumption, Plaintiff relies on the testimony of Plaintiff's corporate representative, Bernice King ("Bernice"). At her deposition, Bernice testified that "some" Executive Committee meetings were recorded, and if the Executive Committee held a meeting, it would have "dealt with issues like the Strategic Decisions contract." See Bernice Dep. at 238:22-239:23. Bernice stated that she does not keep the recordings at the King Center because "Dexter's the one that records them." Id . Plaintiff also relies on a document showing that, in March 2012, Defendant was in the process of transcribing board audio files, and on Martin Luther King III's ("Martin") testimony that he thought board meetings were recorded. See Ex. C, attached to Pl.'s Resp. to Def.'s Dec. 10, 2014, Filing; Martin Dep. 120:15-22.
"Generally, a motion for additional discovery is properly denied where a significant amount of discovery has already been obtained and further discovery would not be helpful." Artistic Entm't, Inc. v. City of Warner Robins, 331 F.3d 1196, 1202-03 (11th Cir.2003) (citing Avirgan v. Hull, 932 F.2d 1572, 1580-81 (11th Cir.1991)). Plaintiff's reliance on Bernice's testimony regarding audio recordings of Executive Committee meetings is misplaced. Plaintiff did not specifically request that such recordings be produced, and Bernice's testimony regarding "Executive Committee" meetings does not necessarily mean that "board meetings" were recorded. Martin's testimony that he "did not know" if "board or committee meetings" were recorded also does not support that recordings were made or that they are available to be produced. See Martin Dep. at 120:15-22. Defendant represents that it does not have audio recordings of board or committee meetings in its possession, custody or control. The lone document showing that, in March 2012, Defendant was in the process of transcribing board audio files is not sufficient to reopen discovery in view of the Defendant's unqualified representation that recordings do not exist. The Court concludes that a significant amount of discovery has already been conducted, and it is not reasonably likely that additional discovery would show that recordings exist.
Plaintiff's Motion to Reopen Discovery is also required to be denied because Plaintiff moved to reopen discovery only after the Court denied the parties' Motions for Summary Judgment. See Ashmore v. Sec'y, Dep't of Transp., 503 F.Appx. 683, 686 (11th Cir.2013) (affirming the district court's denial of a motion to reopen discovery because "the [defendant] would have been prejudiced by additional discovery [since] it had already filed its motion for summary judgment."). Plaintiff's Motion to Reopen Discovery is denied.
II. MOTION FOR RECONSIDERATION
On October 15, 2014, Plaintiff filed its Motion for Partial Summary Judgment on its breach of contract claim. Plaintiff incorporated the arguments it made in its Response in opposition to the Defendant's Motion for Summary Judgment. In that Response, Plaintiff generally claimed that it had satisfied all the elements of a breach of contract claim and was entitled to summary judgment because
the parties executed a valid contract under which [Plaintiff] was to provide consultative services. (Ex. G; see Ex. C. at 70:3-71:7). Defendant promised to pay $216, 000 for the services. (Ex. G.). [Plaintiff] provided the services. (Ex. C at 73:15-78:16; see Ex. B at 166:12-174:11). Defendant breached the agreement by failing to pay the amount owed. (See Ex. B at 230:19-231:7). Defendant damaged [Plaintiff] by denying [Plaintiff] money it was contractually obligated to pay.
Pl.'s Resp. to Def.'s Mot. for Summ. J. at 14.
On November 25, 2014, Plaintiff filed its Reply in support of its Motion for Summary Judgment. In it, Plaintiff raised new arguments to support that it adequately performed under the Agreement. Plaintiff relied on Martin's deposition to argue that there is no genuine issue of fact regarding whether it fulfilled its obligations under the Agreement. At his deposition, Martin, the former CEO of Defendant, testified that (1) he was "tremendously satisfied" with Plaintiff's services, (2) he believed that Plaintiff performed at a "significant level, " and (3) affirmed that Plaintiff satisfactorily performed some of the tasks required under the Agreement. See Martin Dep. at 73:15-24-78:16. Plaintiff also argued that Defendant is obligated to pay the amount owed under the Agreement because Defendant received the benefit of Plaintiff's services, and Defendant did not assert that Plaintiff failed to meet its contractual obligations during the term of the Agreement.
On December 5, 2014, the Court denied Plaintiff's Motion for Partial Summary Judgment on its breach of contract claim. The Court found that Plaintiff's conclusory allegations, made in its Response to Defendant's Motion for Summary Judgment and incorporated by reference in its own Motion for Partial Summary Judgment, were not supported by arguments or facts in the record. The Court also found that Plaintiff made new arguments in its Reply that were not raised in its Motion for Partial Summary Judgment, and that Plaintiff did not, in its Reply, assert or identify evidence to support that it provided all the "deliverables" required to be provided by the Agreement.
The Court noted that Plaintiff bears the initial burden to demonstrate the basis for its Motion for Partial Summary Judgment "by identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions which it believes show that there is an absence of any genuine issue of material fact" on its breach of contract claim. See Hairston v. The Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir.1993). The Court found that Plaintiff did not meet this burden. Its failure to do so was problematic because Plaintiff must show that it performed its obligations under the Agreement to recover damages, and to establish that a valid agreement exists. These issues are important here because Martin did not immediately sign the Agreement, and Defendant acknowledged, in August, 2011, that a written contract did not exist for the services provided to Defendant. See Corrosion Control, Inc. v. William Armstrong Smith Co., 251 S.E.2d 49 (1978) ("To recover damages, a party who bases his action on an express contract must have performed all his obligations under the contract.").
On December 21, 2014, Plaintiff moved for reconsideration of the Court's Order denying its Motion for Partial Summary Judgment. Plaintiff argues that paragraph 31 of its Statement of Material Facts ("SMF") was supported by Martin's testimony that Plaintiff provided the required deliverables under the Agreement. Paragraph 31 of Plaintiff's SMF provides that "Strategic Decisions provided the deliverables listed in the Agreement." See SMF ¶ 31. In support of paragraph 31, Plaintiff relied on pages 73-78 of Martin's deposition. When he was deposed, Martin reviewed the Agreement and testified that Plaintiff provided the deliverables required by the Agreement, and that he was "tremendously satisfied" with Plaintiff's performance. See Martin Dep. at 73:15-24-78:16.
Plaintiff also argues that the Court should not have considered Terry Giles' affidavit in denying its Motion for Partial Summary Judgment. Defendant submitted Giles' affidavit in support of its Motion for Summary Judgment. In January or February 2012, Giles decided not to pay Plaintiff the amount owed under the Agreement because, as the court-appointed custodian of Defendant, he determined that Plaintiff "did not provide detail regarding what work was actually performed pursuant to the Agreement or what benefit its services brought to the King Center." See Giles Aff. at ¶ 8. Plaintiff argues that Giles' opinion is not relevant because he did not serve as ...