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Sutton v. Chanceford Township

United States District Court, M.D. Pennsylvania

October 12, 2017

TERRY SUTTON, d/b/a CINKAJ BROGUE LIMITED PARTNERSHIP, BRENDA SUTTON d/b/a CINKAJ BROGUE LIMITED PARTNERSHIP, CHRIS CINKAJ, d/b/a/ CINKAJ BROGUE LIMITED PARTNERSHIP, Plaintiff
v.
CHANCEFORD TOWNSHIP, et al., Defendants

          MEMORANDUM ORDER

          Martin C. Carlson United States Magistrate Judge

         I. INTRODUCTION AND STATEMENT OF THE CASE

         The plaintiffs in this action are a group of real estate developers and co-owners of a business known as Cinkaj Brogue Limited Partnership (referred to collectively as “plaintiffs” or “developer”). The plaintiffs own a shopping center development in Chanceford Township, York County, Pennsylvania. The plaintiffs allege that in 2013 their partnership was denied a zoning permit necessary to open a cabaret featuring nude dancing in the shopping center. The plaintiffs have sued Chanceford Township and several of its officials alleging that that Township's denial of their request for a special exception needed to open their intended adult entertainment business violated their rights under the United States and Pennsylvania Constitutions. The plaintiffs' chief argument seems to be that the Chanceford Township zoning ordinance operates as a prior restraint on protected speech, and thereby violates the First Amendment. The plaintiffs have also made a claim that the ordinance, as applied to their application, violated the plaintiffs' rights under the First Amendment, in particular by arguing that the stated bases given for denying the special exception were pretextual cover for the real reason the permit was denied, namely, a moral aversion to allowing the plaintiffs to open a business that featured nude dancing. The plaintiffs also claim that their rights to procedural and substantive due process were violated, and that the defendants violated similar prohibitions contained in the Pennsylvania Constitution regarding freedom of expression. The plaintiffs seek damages and declaratory relief.

         The action was first filed on August 12, 2014. (Doc. 1.) The original complaint was subsequently amended on June 28, 2016. (Doc. 19.) On August 5, 2016, the parties consented to proceed before a United States Magistrate Judge, and the case was transferred to the undersigned for all further proceedings. (Doc. 25.) The Court promptly issued a case-management order setting pre-trial deadlines, including a discovery schedule, and scheduling trial for July 17, 2017. (Doc. 26.)

         The defendants moved to dismiss the amended complaint on July 18, 2016. (Doc. 21.) That motion was not fully briefed until October 27, 2016, and on December 14, 2016, the Court granted the motion in part, and denied it in part. (Docs. 37, 38.) Specifically, the Court dismissed the plaintiffs' claim for equal protection and procedural due process violations, as well as a stand-alone claims alleging violations of 42 U.S.C. § 1983. (Doc. 38.) The Court denied the defendants' motion to dismiss with respect to the plaintiff's claims for substantive due process and First Amendment violations, declaratory judgment, and for violations of the Pennsylvania Constitution. (Id.)

         The defendants answered the remaining claims in the amended complaint on January 3, 2017. (Doc. 40.) On January 11, 2017, the Court issued a revised case-management order, pushing out the close of fact discovery to March 31, 2017, and moving the trial date to November 13, 2017. (Doc. 42.)

         The parties proceeded to spar over additional pleading issues, and appeared to engage in some modest discovery, before requesting another revision to the case-management order, ostensibly to permit them to complete discovery; in particular, depositions. On June 1, 2017, the Court granted that last request, in part, extending the deadline for fact discovery to July 5, 2017, and instructing the parties that if they could not come to an agreement about how to complete the remaining discovery by that time, they were to report to the Court regarding the need for any further adjustment to the pre-trial schedule, by June 23, 2017. (Doc. 57.)

         Additional discovery disputes followed, right up to the end of the discovery deadline, which by this point had been adjusted on multiple occasions. It was also during this time that it became apparent that the plaintiffs had taken no depositions in this case, and had only belatedly served interrogatories and document requests in the middle of June 2017, causing further disputes and prompting the defendants to take the position that the discovery was untimely because it would have called for a response falling after discovery was to be have been closed. The table was thus set for yet another discovery dispute, and the likelihood of additional delays in the litigation of this case.

         Thereafter, on August 1, 2017, the defendants moved for summary judgment. (Doc. 67.) After the defendants filed their supporting brief and statement of facts, the plaintiffs, on September 1, 2017, filed a motion to complete discovery, as well as a motion for an enlargement of time to file their brief opposing summary judgment - something they now argued was impossible to do without taking depositions of three witnesses that the defendants had, according to the plaintiffs, belatedly identified. (Docs. 71, 72.) This, in turn, inspired a fresh round of briefing and letter writing by the parties, in which each side staked out its territory and argued that it was blameless in the procedural state of the case and what appears to have been an incomplete discovery process. We need not linger over the details of the parties' assorted arguments and mutual recriminations, but it is notable that they included recriminations concerning significantly delayed disclosure of witness identities on the part of the defendants, which were made in a series of supplements to the defendants' initial disclosures, and the plaintiffs' insistence that their counsel did not receive timely or proper service of these disclosures, apparently because some of the disclosures were sent to email addresses that counsel claims to no longer check.[1]

         The Court endeavored to informally bring order to this procedural situation through a telephone conference on September 25, 2017, after which all case-management deadlines were suspended pending the outcome of the defendants' summary judgment motion, which was itself bound up in the plaintiffs' motion for additional time to complete discovery - relief that the plaintiffs sought pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.

         It is this request for a brief - and final - enlargement of the discovery period in this case that is now before the Court. Upon consideration, the Court finds that to some degree the parties share responsibility for the procedural status, with the defendants apparently having delayed in identifying witnesses on whom they would be relying until well after the original discovery periods had closed, and indeed until late spring and early summer of 2017. The plaintiffs, in turn, seem to have adopted a pre-trial strategy that involved little in the way of planning for discovery in aid of their claims, as they took no depositions at all, and did not even begin serving interrogatories and document requests until mere days before the already extended discovery period was to close for what was expected to be the final time.

         Now, the Court is in the position of determining whether the plaintiffs should be granted still more time to complete discovery in order to respond to the defendants' motion for summary judgment. Upon consideration of the procedural history of this case, and the legal standards governing motions of this kind under Rule 56(d) of the Federal Rules of Civil Procedure, the Court finds that the interests of having the plaintiff's remaining claims tested on their merits warrants one final very discrete enlargement of the discovery period in this case, after which the defendants' motion for summary judgment may be fully briefed, and the Court can consider whether the plaintiffs have developed a factual record that allows their claims to survive dismissal, or whether the defendants are entitled to judgment in their favor prior to trial.

         II. DISCUSSION

         When a party opposing summary judgment “believes that s/he needs additional time for discovery, [Rule 56(d)] specifies the procedure to be followed.” Pa. Dep't of Public Welfare v. Sebelius, 674 F.3d 139, 157 (3d Cir. 2012) (quoting Dowling v. City of Phila., ...


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