*1 The following pending motions are before the Court: (1) Emergency Plaintiffs' Motion to Compel (Dkt. #269);[1] and (2) Plaintiffs' Objections to United States Magistrate Judge Order (Dkt. #261) Denying Plaintiffs' Motion to Amend Scheduling Order, Continue Trial, Extend Other Deadlines and for Sanctions and Plaintiffs' Motion for Leave to Supplement Plaintiffs' Responses to Defendants' Motion for Summary Judgment Based on Newly Discovered Evidence Produced by Defendants (Dkt. #280). The Court, having carefully considered the relevant briefing, is of the opinion the motion to compel should be DENIED. Plaintiffs' objections are OVERRULED.

I. BACKGROUND

A. Factual background

In May 2017, plaintiffs-counterdefendants StoneCoat of Texas, LLC, StoneCoat GP, LLC, and StoneCoat, LP (collectively, “Plaintiffs”) filed this case against defendants-counterplaintiffs ProCal Stone Design, LLC, John D. Profanchik, Sr., Justin Kinser, Irma Villarreal, Alfredo Gonzalez, Philippe Mergaux, and Pierre-Laurent Chamielec. ProCal Stone Design, US LLC and ProCal Enterprises, LLC were later added as defendants.

B. Procedural background

In the Court's original Scheduling Order entered January 22, 2018, the Court reminded the parties of the requirement, set out in the Court's Initial Order Governing Proceedings, to have already disclosed, without awaiting a discovery request, information in addition to that required by Federal Rule of Civil Procedure 26, including names of persons likely to have, and documents containing, information “relevant to the claim or defense of any party” (Dkt. #45 at p. 4). The Court's Second Amended Scheduling Order established June 21, 2019 as the deadline for completing all discovery (Dkt. #89).

On July 11, 2019, the Court entered a Third Amended Scheduling Order setting various deadlines for pretrial matters, including the final pretrial conference on September 6, 2019 and the jury trial between October 7, 2019 and November 1, 2019 (Dkt. #230). The discovery deadline remained June 21, 2019, but the Court noted it was aware the parties had agreed to allow certain discovery to occur outside the official discovery period because of scheduling issues.[2] Id. at p. 2, n. 1.

*2 On June 20, 2019, the Magistrate Judge conducted a hearing on seven motions for summary judgment which were fully ripe for consideration. On July 25, 2019, the Magistrate Judge issued two separate Report and Recommendations, totaling over 200 pages in length, on Profanchik's motion for summary judgment regarding res judicata and Plaintiffs' motions for summary judgment (Dkt. #s 234, 236). On August 12, 2019, the Magistrate Judge issued a 193-page Report and Recommendation, recommending Defendants' motions for summary judgment be granted (Dkt. #241).

C. Plaintiffs' three “emergency” motions

1. First motion

Following the entry of the three Report and Recommendations, Plaintiffs filed their first emergency motion for extension of the pretrial deadlines and pretrial conference in order to allow the undersigned time to consider the objections to the Reports prior to the pretrial filing deadlines. (See Dkt. #245.) The Court ordered expedited briefing and on August 19, 2019 granted Plaintiffs' motion. See Fourth Amended Scheduling Order (Dkt. #251) (continuing the pretrial filings deadline to September 12, 2019 and the pretrial conference to September 20, 2019).

2. Second motion

Plaintiffs also filed a second emergency motion, requesting the Court amend the scheduling order to continue the trial date (and related pretrial deadlines) and for sanctions against Defendants (Dkt. #248). Among other things, Plaintiffs criticized Defendants' disclosures, or lack thereof, regarding their possession and use (or non-use) of the “French formula” and their supplier of the sprayed limestone materials (specifically “Puma,” a company in Spain). According to Plaintiffs, none of Defendants' disclosures disclosed information regarding Profanchik's purchase of the “French formula” from Mergaux and/or Chamielec or information regarding Puma, ProCal's alleged supplier of materials “until July 1, 2019, then again on August 6, 2019 and then again on August 14, 2019.”[3] Id. at p. 6 (emphasis in original). Additionally, Plaintiffs asserted Defendants' supplemental disclosures first served on May 14, 2019 and thereafter added 53 new potential witnesses in addition to the 24 potential witnesses identified in Defendants' initial disclosures. Id.

*3 Plaintiffs asserted Defendants' failure to comply with the disclosure of information requirements and disclosure and production of documents contained in this Court's Order Governing Proceedings (Dkt. #23) and Local Rules as well as Rule 26 of the Federal Rules of Civil Procedure “greatly prejudiced Plaintiffs' ability to be ready for trial, to respond to Defendants' Motions for Summary Judgment and to Object to the Reports and Recommendations of the United States Magistrate Judge” (Dkt. #248 at p. 11). Plaintiffs moved the Court to amend the Fourth Amended Scheduling Order to permit Plaintiffs to conduct discovery related to the information and persons disclosed and identified in the documents recently produced and disclosed by Defendants. Id. at p. 13. Specifically, Plaintiffs stated they needed “additional discovery and production of electronically stored information from Defendants, Chamielec, Puma and Mergaux, and Plaintiffs need depositions from Defendants, Chamielec, Puma and Mergaux related to the information recently disclosed by Defendants.” Id.

Pursuant to Federal Rule of Civil Procedure 56(d), Plaintiffs also moved for leave to amend their responses to Defendants' motions for summary judgment and for a continuance to obtain discovery regarding the new issues, information, persons and documents recently disclosed by Defendants. Id. at p. 14. Finally, Plaintiffs moved the Court to sanction Defendants appropriately for their failure to meet the initial and supplemental disclosure requirements including awarding attorney's fees and costs incurred by Plaintiffs. Id. at p. 16.

On August 21, 2019, the Magistrate Judge denied Plaintiffs' motion (Dkt. #261). In her good cause analysis, the Magistrate Judge found Plaintiffs failed to show they had been diligence, either in seeking discovery or in filing their second emergency motion. Id. at p. 6. In so finding, the Magistrate Judge considered Plaintiffs' implication that they did not have knowledge ProCal acquired its limestone product from Europe through a company called Puma until August 6, 2019. Id. at pp. 6-7. It was significant to the Magistrate Judge that the Declaration of Philippe Mergaux was filed in this case on April 17, 2019 as an exhibit to ProCal Stone Design's reply in support of its motion for summary judgment. Id. at p. 7 (citing Dkt. #175-1).

As pointed out by the Magistrate Judge, in Mergaux's declaration, which was discussed extensively in the August 12, 2019 Report and Recommendation regarding Defendants' motions for summary judgment, Mergaux stated, among other things, as follows: (1) Mergaux and Chamielec felt free to re-sell the formula because they believed the Product Rights Agreement had been properly terminated; (2) In 2016, they sold the formula, along with the bragging rights, to Profanchik and ProCal; (3) Profanchik paid what was due under the agreement and they transferred everything that was required; and (4) At the time Mergaux was at ProCal, he knew that ProCal purchased its product from Europe and did not use Stonecoat's product (Dkt. #261 at pp. 7-8). The Magistrate Judge found “Plaintiffs were clearly on notice of the sale months before the end of the discovery period and there is no indication they took any steps to obtain additional evidence before the discovery period expired. Nor did Plaintiffs request additional time or discovery until after the undersigned issued extensive Report and Recommendations on the pending dispositive motions.” Id. at p. 8.

Regarding Plaintiffs' knowledge of ProCal suppliers, specifically Puma, the Magistrate Judge similarly noted Profanchik has contended since July 10, 2017 in the Collin County Litigation that ProCal does not use SCOT's limestone mix but instead buys limestone mix ready-made in bags from a company in Spain. Id. Even though Defendants have re-affirmed that statement throughout filings in this case, Plaintiffs never sent a request for production or an interrogatory asking ProCal to identify its Spanish supplier or to produce invoices from its Spanish supplier. Defendants represented Plaintiffs never specifically requested it prior to Profanchik's deposition in August 2019.

*4 The Magistrate Judge concluded Plaintiffs were unable to show that despite their diligence, they could not have met the discovery and dispositive motions deadlines because Plaintiffs “did not diligently pursue discovery in the first place.”[4] Id. at p. 10 (quoting Lafontaine v. Tween Brands, Inc., No. 4:16-CV-335, 2017 WL 2620325, at *5 (E.D. Tex. June 16, 2017)). According to the Magistrate Judge, Plaintiffs had not provided any information regarding their efforts to obtain discovery, nor had they sufficiently explained why they waited until after the Report and Recommendations had been entered to file their emergency motion (Dkt. #261 at p. 11). Thus, this factor weighed against amending the Fourth Amended Scheduling Order as requested by Plaintiffs. Id.

The remaining factors also weighed against amending the Fourth Amended Scheduling Order. There was no indication any of the issues would be relevant to the dispositive issue of Defendants' use of Plaintiffs' alleged trade secrets (formulas), and Defendants would be prejudiced by a continuance of the discovery, pretrial, and trial deadlines. The Magistrate Judge denied Plaintiffs' request to re-open discovery at this late stage and also denied Plaintiffs' request for a continuance of the pretrial and trial deadlines. Id. at p. 13.

She also denied Plaintiffs' motion for leave to supplement their responses to Defendants' motions for summary judgment. Id. at p. 13, n. 6. However, the Magistrate Judge noted Plaintiffs may incorporate into their objections to the August 12, 2019 Report and Recommendation any information contained in the motion for leave to supplement.[5]

3. Third motion

On August 28, 2019, approximately ten weeks after the close of discovery, Plaintiffs filed the current third emergency motion to compel, raising substantially similar issues already presented to the Court in Plaintiffs' first two motions. Attempting to justify the timing of their motion, Plaintiffs focus not on their own efforts during the discovery period but on Defendants' alleged failure to comply with their disclosure requirements and the subsequent delay, at Profanchik's insistence, of his deposition, which the parties agreed could be taken outside the discovery deadline. The Court sets out the parties' arguments in further detail below.

II. PLAINTIFFS' THIRD “EMERGENCY” MOTION AND OBJECTIONS TO THE AUGUST 21 ORDER DENYING THEIR SECOND “EMERGENCY” MOTION

According to Plaintiffs, Defendants produced new “highly relevant” documents on August 6, 2019, the first day of Profanchik's rescheduled deposition, including an invoice from Puma dated April 4, 2017, fifteen months after ProCal opened for business in January 2016 (Dkt. #269 at pp. 7-8). Plaintiffs state they also learned during the deposition of Profanchik that ProCal, in the fall of 2015, first purchased product from Mergaux “who sourced the product in Europe,” and also that “after Mergaux, Procal purchased the product from Puma and used the Puma limestone product to apply the sprayed limestone.” Id. at p. 5. After Defendants produced additional new documents on August 14, 2019, Plaintiffs requested additional documents from Defendants. Id. at pp. 9-10.

*5 According to Plaintiffs, Defendants still have not produced all the relevant information and documents regarding Profanchik's agreements, contracts, and payments to Mergaux and Chamielec to purchase the French formula. Nor have they produced “all email and other communications and agreements, understandings and contracts and payments, purchase orders and invoices” with Puma. Id. at p. 10. Plaintiffs further assert Defendants have failed to disclose any person with knowledge concerning ProCal's relationship with Puma, “and how that relationship was established, what products are being purchased and what formula is being used in the bags of limestone Procal is purchasing from Puma.” Id. at p. 11.

Regarding the timing, Plaintiffs state they requested the same documents in the deposition notices originally served on June 3, 2019 for the depositions of Profanchik and ProCal. According to Plaintiffs, Defendants agreed to extend the discovery deadline and to produce Profanchik and ProCal for a deposition in late June and early July 2019.[6] After the July 3, 2019 depositions were rescheduled to August 6-7, 2019 “at the insistence of Defendants due to the medical complications faced by Profanchik,” Plaintiffs requested the same documents. Id. at p. 13. According to Plaintiffs, new documents, information and evidence were produced by Defendants at the August 6, 2019 rescheduled Profanchik deposition, and additional information was produced on August 14, 2019. Id. at p. 5; see also footnote 3, supra.

Plaintiffs seek to compel the disclosure of documents which Plaintiffs state should have been disclosed as part of Defendants' initial or supplemental disclosures.[7] As argued in the second emergency motion denied by the Magistrate Judge, Plaintiffs again assert Defendants' initial and supplemental disclosures did not include any information regarding their use (or non-use) of the French formula (or any formulas Profanchik or ProCal were using) nor did they include any information regarding Defendants' supplier of the limestone materials (a company by the name of “Puma”)– which is a central issue in this lawsuit (Dkt. #269 at pp. 3-4).

*6 In their expedited response to the third emergency motion, Defendants assert Plaintiffs again seek (outside the discovery deadline) documents related to (1) Puma, which were never requested in a request for production or interrogatory, (2) Chamielec, which Defendants represent have already been produced, (3) Mergaux, which Defendants represent have already been produced, and (4) Hopkins, which Defendants assert were never discussed/conferred about prior to the filing of Plaintiffs' third motion and which Defendants do not have. According to Defendants, even with all the prior briefing, Plaintiffs have still failed to offer any explanation for the following facts:

(Dkt. #277 at pp. 3-4.)

In their reply, Plaintiffs continue to assert Defendants did not take seriously this Court's disclosure order or the disclosure requirements of the Federal and Local Rules. According to Plaintiffs, Defendants focus only on the discovery deadline and ignore the agreements reached between the parties regarding the depositions and production of documents by subpoena of Profanchik and ProCal after the discovery deadline (Dkt. #278 at p. 4).

In their objections to the August 21 Order denying their second emergency motion, Plaintiffs raise similar arguments. Plaintiffs request the Court vacate all pretrial deadlines in the Fourth Amended Scheduling Order and remove this case from the Court's October 7, 2019 – November 1, 2019 trial docket. Plaintiffs further request discovery be re-opened until November 29, 2019. Finally, Plaintiffs request they be granted leave to file the following in response to Defendants' motions for summary judgment (Dkt. #s 67 and 129): (1) the exhibits attached to Plaintiffs' second emergency motion (Dkt. #248); and (2) Exhibit 1 attached to Plaintiffs' objections (Dkt. #279-1).

III. DISCUSSION

A. Third emergency motion

1. Applicable law

*7 Federal Rule of Civil Procedure 16(b) provides as follows: “A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.” The Fifth Circuit has stated four factors trial courts must consider when determining whether good cause exits to allow a deviation from the court's scheduling order: (1) the explanation for the failure to [complete the discovery within the deadline]; (2) the importance of the [modification of the deadline]; (3) potential prejudice in allowing the [modification]; and (4) the availability of a continuance to cure such prejudice. Reliance Ins. Co. v. The Louisiana Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.1997); Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990).

2. Good cause analysis

Plaintiffs' diligence

In assessing good cause, the trial court primarily considers the diligence of the party seeking to alter the existing schedule. See Deghand v. Wal-Mart Stores, Inc., 904 F.Supp. 1218, 1221 (D.Kan.1995). The party's explanation for seeking relief from the schedule must demonstrate that it could not have met the deadline despite its diligence. In her August 21 Order, the Magistrate Judge determined Plaintiffs had failed to show they have been diligent, either in seeking discovery or in filing their second emergency motion dealing with these same issues.

As noted above, in their third emergency motion, Plaintiffs focus on Defendants' alleged failure to comply with their disclosure requirements and the subsequent delay, at Profanchik's insistence, of his deposition. However, as the party seeking to reopen the now-expired discovery deadline, it is Plaintiffs' diligence that is at issue here. Plaintiffs state the “delay” was created by Profanchik, and Plaintiffs filed their current motion only after exhaustive attempts to obtain voluntarily compliance by Defendants with their disclosure and discovery obligations. Id. Significantly, Plaintiffs state they have “diligently sought the discovery and information requested in Plaintiffs' Motion since June 3, 2019.” Id. (emphasis added).

Even accepting Plaintiffs' assertion as true, it still does not demonstrate to the Court's satisfaction that Plaintiffs have been diligent in seeking discovery in this case. Discovery in this case closed on June 21, 2019. This was not the deadline for initiating fact discovery. Hamilton v. Coastal Bridge Co., LLC, No. CIV.A. 13-756-JJB-RL, 2014 WL 7013948, at *1 (M.D. La. Dec. 12, 2014) (citing Borniski v. Texas Instruments, Inc., 32 F.Supp.2d 918, 919 (N.D. Tex.1998) (discovery served on the eve of discovery deadline untimely because “deadline set out in the scheduling order was for the completion, not the initiation, of discovery”)). Importantly, the scheduling order specifically provides that “[a]ll discovery shall be commenced in time to be completed by this date.” (See, e.g. Dkt. #89.)

While an informal agreement between the parties could support a finding of good cause under certain circumstances, it does not here. The parties agreed to a limited extension of discovery related only to the deposition of Profanchik and ProCal, which Plaintiffs did not even request until early June. Plaintiffs have not shown they exercised diligence for purposes of Rule 16(b) in attempting to schedule the deposition in the first place so it could be completed before the June 21, 2019 deadline in the scheduling order for completing discovery. See Binh Hoa Le v. Exeter Fin. Corp., No. 3:15-CV-3839-L, 2019 WL 1436375, at *16 (N.D. Tex. Mar. 31, 2019).

Plaintiffs have provided no explanation for their delay in conducting discovery within the timeframes permitted and no explanation as to why they were unable to notice Profanchik's deposition in the approximately twenty months since the original scheduling order's release. See Lafontaine v. Tween Brands, Inc., No. 4:16-CV-335, 2017 WL 2620325, at *4 (E.D. Tex. June 16, 2017) (stating the defendant failed to explain why it could not have deposed the plaintiff earlier than it did and further stating that if the defendant had deposed the plaintiff during the four months between the scheduling order's release and the dispositive motion deadline (which the defendant sought to extend) it would have learned the information it relied on to support its late-filed motion for summary judgment well before the deadline). In Lafontaine, the undersigned held the defendant was unable to show that despite its diligence it could not have met the dispositive motion deadline, noting the defendant did not diligently pursue discovery in the first place. Id. at *5. In that case,

Id. The Court was not persuaded.

According to the Court, merely completing discovery before the discovery deadline does not satisfy diligence. The Court explained that if Tween had exercised diligence, “it would have deposed Lafontaine long before the deadline for dispositive motions had passed.” Id. The Court further explained that if Tween planned on filing a summary judgment motion, “it should have known it would have had to depose Lafontaine to support its motion, meaning they would have to depose her before the deadline.” Id. The Court pointed out Tween had four months to depose Lafontaine and draft its summary judgment motion, but Tween did not depose Lafontaine until almost two months after the deadline. Id. The Court concluded Tween had not shown that “despite its diligence, it could not have met the deadline.” Id.

The same reasoning applies here, although in a slightly different context. Plaintiffs assert they did not obtain relevant information that should have been included in Defendants' disclosures (i.e., regarding Puma) until Profanchik produced documents (which had previously been requested by Plaintiffs in early June) on the first day of his rescheduled deposition and then again on August 14, 2019. Two weeks later, Plaintiffs filed their current motion to compel seeking to re-open discovery, requesting the Court compel Defendants to provide a slew of additional information. However, much of the requested information touches on issues that Plaintiffs have known about, or should have known about, for one or two years (or even longer considering all of the prior litigation between the parties).

At a minimum, the Declaration of Philippe Mergaux raised the issue of ProCal's use (or non-use) of the French formula. As previously noted by the Magistrate Judge in its August 21 Order denying Plaintiffs' second emergency motion, Mergaux's declaration was filed on April 17, 2019 as an exhibit to ProCal Stone Design's reply in support of its motion for summary judgment. If Plaintiffs had exercised diligence in this case, they should have known they would need to depose Profanchik months before the discovery (and even dispositive motion) deadline. Like in Lafontaine, Plaintiffs have provided no information regarding their efforts to depose Profanchik before June, the month discovery was scheduled to end.

Even though these deficiencies were mentioned in the Magistrate Judge's August 21 Order denying Plaintiffs' second emergency motion (to which Plaintiffs have objected), Plaintiffs still have not provided the Court any information regarding their efforts to obtain discovery in this case. Instead, Plaintiffs focus on the disclosure requirements of Rule 26 and Defendants' alleged failure to satisfy those requirements. Plaintiffs provide no legal support for their position that any such failure would provide “good cause” to modify the discovery deadlines under FED. R. CIV. P. 16. And as stated above, it is Plaintiffs' diligence that is at issue here. The record demonstrates a complete lack of diligence by Plaintiffs in seeking the discovery at issue.

*9 The Court agrees with the Magistrate Judge that this factor weighs against modifying the scheduling order to re-open discovery as to the information now sought by Plaintiffs. The Court finds the remaining factors also weigh against modification.

Importance of the requested modification

Plaintiffs have not convinced the Court of the importance of a modification. The Magistrate Judge has allowed Plaintiffs to incorporate into their objections to the August 12, 2019 Report and Recommendation any information Plaintiffs have received that was not before the Court at the time the Report was entered. Those objections, and the additional evidence, are pending before the undersigned, who will conduct a de novo review of the issues.

Prejudice and availability of any continuance to cure prejudice

Defendants would be prejudiced if discovery is re-opened at this late stage. A final pretrial conference is fast approaching on September 20, 2019. The trial window is October 7-November 1, 2019 (Dkt. #251).

Whether a continuance could cure prejudice weighs in favor of good cause. See Lafontaine, 2017 WL 2620325, at *5. However, whatever slight cure in prejudice a continuance may bring does not outweigh the other factors that weigh against good cause. Id. Furthermore, district judges have broad “discretion not to grant a continuance,” because they have the “power to control their dockets by refusing to give ineffective litigants a second chance to develop their case.” Id. (quoting S & W Enters., 315 F.3d at 537). Here, the Court also chooses to exercise its discretion to not grant a continuance in this case. Lafontaine, 2017 WL 2620325, at *5.

Conclusion

The Court, having considered the four factors, does not find good cause to allow a deviation from the Court's Fourth Amended Scheduling Order. Specifically, the Court will not re-open discovery so that Plaintiffs may seek to compel additional discovery they contend should have been provided earlier. Had Plaintiffs been diligent in seeking to depose Profanchik, they would have had the information in enough time to move to compel further information within the discovery period.

B. Plaintiffs' objections to the August 21 Order

Plaintiffs' objections to the Magistrate Judge's August 21 Order are governed by Rule 72(a), which provides, in pertinent part, that “[t]he district judge... must ... modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law.”[8] FED. R. CIV. P. 72(a). For the same reasons discussed above, the Court does not find the Magistrate Judge's August 21 Order clearly erroneous or contrary to law. Plaintiffs' objections to the August 21 Order are overruled.

IV. RULING

Based on the foregoing, it is

ORDERED that Emergency Plaintiffs' Motion to Compel (Dkt. #269) is DENIED. It is further

ORDERED that Plaintiffs' Objections to United States Magistrate Judge Order (Dkt. #261) Denying Plaintiffs' Motion to Amend Scheduling Order, Continue Trial, Extend Other Deadlines and for Sanctions and Plaintiffs' Motion for Leave to Supplement Plaintiffs' Responses to Defendants' Motion for Summary Judgment Based on Newly Discovered Evidence Produced by

*10 Defendants (Dkt. #280) are OVERRULED.

SIGNED this 9th day of September, 2019.