filed together with the supporting or opposing brief.
Krouse also strongly disputes the Defendants' argument that the affidavit contradicts his own prior sworn testimony. However, we have concluded that there are adequate alternative bases which justify granting the Defendants' motion to strike. Krouse's other arguments in defense of his affidavit are unconvincing. We will therefore grant the AMSCO Defendants' motion to strike Krouse's affidavit.
C. Plaintiff's Motion for Leave to File Supplemental Briefs in Opposition to Summary Judgment, to Re-Open Discovery, and to Consolidate
We next consider Krouse's motions to reopen discovery, to submit supplemental briefs in opposition to Defendants' motions for summary judgment, and to consolidate these cases with two other consolidated civil actions currently pending before this Court.
In support of his motion to reopen discovery, Krouse submits that his counsel has recently obtained evidence through the sworn testimony of Defendants' management level employees that directly contradicts earlier assertions made by the Defendants in their briefs. This "newly discovered evidence" allegedly contradicts the Defendants' previous assertions that there is no agency relationship between AMSCO and Liberty Mutual and that all decisions regarding AMSCO employees are made solely by AMSCO, while all decisions regarding worker's compensation issues are made solely by Liberty Mutual. Specifically, Liberty Mutual has contended that its only relationship with AMSCO is by virtue of furnishing a policy of insurance to AMSCO and that it does not otherwise exercise any control over decisions affecting AMSCO employees. AMSCO contends that the decisions that Krouse undergo a functional capacity exam and a utilization review were made not by AMSCO, but by Liberty Mutual, its worker's compensation carrier. Krouse submits that recent deposition testimony taken on April 25, 1996 in the Cassidy cases directly undercuts these assertions. He urges that this newly discovered information "only scratches the surface of the underlying, secret actions and agendas of the Defendants." He claims that additional discovery is needed to unearth all the relevant information concerning the Defendants' relationship.
Having considered the foregoing arguments, the Court finds that Krouse's motion for additional discovery is not well taken. As an initial matter, we note that the Complaint in Krouse II was filed on November 10, 1994 and the time for discovery continued for nearly twelve months thereafter, the deadline originally being set to November 1, 1995.
By order dated October 30, 1995, this Court extended the discovery deadline to January 5, 1996. Krouse moved for an additional extension of discovery on January 5, 1996, but the Court denied that motion. Thus, the period for discovery, which was quite liberal to begin with, is now well passed. Krouse freely admits that he has conducted virtually no discovery during this fourteen month period. He offers no explanation for having failed to conduct discovery and does not indicate any reason why the "newly discovered evidence" was previously unavailable. The parties have already submitted lengthy briefs in support of and in opposition to dispositive motions. We see no good reason to further protract this litigation by now reopening discovery and permitting further briefing in these actions.
A party seeking to reopen discovery in response to a summary judgment motion must demonstrate: (1) the particular information sought, (2) how the information would preclude summary judgment, and (3) why it has not previously been obtained. Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994); St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994). We find that Krouse has failed to adequately explain how his counsel's newly acquired information would preclude summary judgment. We further find that Krouse has not provided a reasonable explanation as to why this "newly discovered evidence" was not previously obtained. Consequently, his motions to reopen discovery and to supplement his prior briefs will be denied.
In light of the Court's resolution of Defendants' summary judgment motions and our determination that a re-opening of discovery is inappropriate, Krouse's motion to consolidate will be denied as moot.
D. The AMSCO Defendants' Motion for Sanctions
The AMSCO Defendants have moved for sanctions in the form of their counsel's fees required to respond to Krouse's affidavit. Upon careful consideration of the AMSCO Defendants' arguments, we conclude that that motion should be denied.
For the reasons previously stated, Defendants' motions for summary judgment will be granted and their motions to dismiss under Rule 12(b)(6) will be denied as moot. Krouse's motions for leave to file a supplementary brief in opposition to summary judgment, to reopen discovery, and to consolidate will likewise be denied. The AMSCO Defendants' motion to strike Krouse's affidavit will be granted. Finally, the AMSCO Defendants' motion for sanctions will be denied.
An appropriate order follows.
AND NOW, this 28Th day of September, 1996, for the reasons stated in the accompanying memorandum opinion,
IT IS HEREBY ORDERED as follows:
1. The Motion [Doc. No. 32-1] of Defendants Liberty Mutual, Stafford, and Nuara for Summary Judgment is GRANTED.
2. Defendants American Sterilizer Company, Michael J. Coughlin, Scott Lightner, and John T. Hardin's Motion [Doc. No. 36-1] for Summary Judgment is GRANTED.
3. The AMSCO Defendants' Motion [Doc. No. 49-1] to Strike Plaintiffs' Affidavit and Deny Plaintiff's Request for Reopening of Discovery and Motion [Doc. No. 49-2] for Sanctions Under Fed. R. Civ. P. 56(g) is GRANTED as to [49-1] and DENIED as to [49-2] consistent with the accompanying memorandum opinion.
4. The Plaintiff's Motions [Doc. No. 51-1] for Leave to File Supplemental Briefs in Opposition to Summary Judgment, [Doc. No. 51-2] to Re-open Discovery and [Doc. No. 51-3] to Consolidate are DENIED with prejudice.
5. Plaintiff's Motion [Doc. No. 60] in Opposition to Defendants' Motion to Strike Plaintiff's Affidavit and Deny Plaintiff's Request for Re-Opening of Discovery and Motion for Sanctions is DENIED as moot.
6. Defendants Coughlin, Lightner and Hardin's Motion [Doc. No. 17-1] to Dismiss is DENIED as moot.
7. The Motion [Doc. No. 20-1] of Nanette S. Stafford and Jason M. Nuara, Defendants, to Dismiss is DENIED as moot.
JUDGMENT is hereby entered in favor of all Defendants, and against Plaintiff, Robert Krouse, as to all claims.
Sean J. McLaughlin
United States District Judge