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Case 5:22-cv-01305-MAD-ML Document 197 Filed 12/16/24 Page 1 of 1\n\n Kilpatrick Townsend & Stockton LLP 3 Times Square\n ktslaw.com New York, NY 10036\n\n\n\n\n H. Forrest Flemming, III\nDecember 16, 2024 direct dial 404 532 6869\n FFlemming@ktslaw.com\nVIA ECF\n\nHon. Miroslav Lovric\nU.S. Magistrate Judge\nU.S. District Court, Northern District of New York\nFederal Building and U.S. Courthouse\n15 Henry Street\nBinghamton, New York 13261-7346\n\n Re: Car-Freshner Corp., et al. v. Meta Platforms, Inc., 5:22-cv-1305 (MAD/ML)\n\nDear Magistrate Judge Lovric:\n\n I write jointly on behalf of Defendant Meta Platforms, Inc. (\u201cMeta\u201d) and Plaintiffs Car-\nFreshner Corporation and Julius S\u00e4mann, Ltd. to request an additional one-week extension of\ninterim discovery deadlines while the parties finalize a settlement agreement. Since the parties\nrequested the first one-week extension of deadlines on December 4, 2024 (Dkt. No 194), the\nparties have made great progress in settlement negotiations and are working to finalize the\nagreement. 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(Flemming, H. 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(Attachments: # (1) Exhibit(s) 1 - Flemming Letter, # (2) Exhibit(s) 2 - Flemming Email)(Flemming, H. Forrest)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/406199166/","id":406199166,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/66616713/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/417403549/","id":417403549,"tags":[],"absolute_url":"/docket/66616713/179/car-freshner-corporation-v-meta-platforms-inc/","date_created":"2024-10-25T05:38:30.380761-07:00","date_modified":"2024-10-25T05:38:30.391887-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"179","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion for Limited Admission Pro Hac Vice","acms_document_guid":""}],"date_created":"2024-10-25T05:38:30.365678-07:00","date_modified":"2024-10-25T05:38:30.370184-07:00","date_filed":"2024-10-24","time_filed":null,"entry_number":179,"recap_sequence_number":"2024-10-24.002","pacer_sequence_number":null,"description":"ORDER granting [177] Motion for Limited Admission Pro Hac Vice. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step-by-step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorney-admissions. Counsel is reminded that, once the above is accomplished, a NOTICE OF APPEARANCE MUST BE FILED IN THIS ACTION or you will not receive electronic notifications in the case.SO ORDERED by Magistrate Judge Miroslav Lovric on 10/24/2024. 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Defendants are authorized to file its Reply by 10/24/2024.Signed by Magistrate Judge Miroslav Lovric on 10/24/2024. 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Chanin Filing fee $100, receipt number ANYNDC-6910270. [THIS DOCUMENT IS RESTRICTED AND VIEWABLE BY COURT USERS ONLY] (Attachments: # (1) Petition for Admission, # (2) Declaration of Sponsor, # (3) Certificate of Good Standing, # (4) Attorney E-Filing Registration Form) Motions referred to Miroslav Lovric. (Flemming, H. 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MAGLEY, ESQ.\nOne Lincoln Center LOUIS ORBACH, ESQ.\nSyracuse, New York 13202\nAttorneys for Plaintiffs\n\nKILPATRICK TOWNSEND H. FORREST FLEMMING, III, ESQ.\n& STOCKTON, LLP R. CHARLES HENN, JR., ESQ.\n1114 Avenue of the Americas \u2013 21st Floor WILLIAM H. BREWSTER, ESQ.\nNew York, New York 10036\nAttorneys for Defendant and\nCounter-Claimant\n\nMANATT, PHELPS & PHILLIPS, LLP RICHARD S. HARTUNIAN, ESQ.\n7 Times Square Plaza MATTHEW F. BRUNO, ESQ.\nNew York, New York 10036\nAttorneys for Defendant and\nCounter-Claimant\n\nMae A. D'Agostino, U.S. District Judge:\n\n MEMORANDUM-DECISION AND ORDER\n\n\n\n 1\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 2 of 26\n\n\n\n I. INTRODUCTION\n\n Plaintiffs Car-Freshner Corporation and Julius Samann Ltd. initiated this action on\n\nDecember 6, 2022, by filing a complaint. See Dkt. No. 1. Plaintiffs allege that Defendant Meta\n\nPlatforms, Inc., as owner of Facebook and Instagram infringed on their trademarks for Little\n\nTrees air fresheners. See id.\n\n Presently before the Court is Defendant's appeal of two decisions by Magistrate Judge\n\nMiroslav Lovric in which he denied Defendant's motion to compel and request to modify the\n\ndeadline for filing a motion based on venue. See Dkt. No. 109. Plaintiff responded in opposition.\n\nSee Dkt. No. 122. Defendant replied. See Dkt. No. 129.\n\n For the following reasons, Defendant's appeal is denied.\n\n II. BACKGROUND\n\n For a complete recitation of the factual background underlying this case, the parties are\n\nreferred to the Court's Memorandum-Decision and Order dated November 7, 2023, as well as\n\nPlaintiffs' fourth amended complaint. See Dkt. Nos. 26, 107. The Court will, however, recite the\n\nprocedural posture that is relevant to the issues on appeal.\n\n Plaintiffs filed their first amended complaint as of right on February 27, 2023. See Dkt.\n\nNo. 13. On March 13, 2023, in lieu of filing an answer to Plaintiffs' first amended complaint,\n\nDefendant moved to dismiss the complaint. See Dkt. No. 17. Defendant sought to dismiss\n\nPlaintiffs' claims for lack of personal jurisdiction and failure to state a claim under Federal Rules\n\nof Civil Procedure 12(b)(1) and (6), or in the alternative, to transfer venue to the District Court for\n\nthe Northern District of California based on forum selection clauses in Defendant's terms of\n\nservice. See id. Plaintiff opposed the motion on all grounds. See Dkt. No. 21.\n\n\n\n\n 2\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 3 of 26\n\n\n\n On November 7, 2023, the Court granted in part and denied in part Defendant's motion to\n\ndismiss and denied the request to transfer venue. See Dkt. No. 26. The Court acknowledged that\n\n\"'[t]he presence of a [valid and enforceable] forum-selection clause . . . in [a] case will be a\n\nsignificant factor that figures centrally in the district court's calculus [when deciding a motion to\n\ntransfer venue under 28 U.S.C. \u00a7 1404(a)].'\" Id. at 26 (quoting Stewart Org., Inc. v. Ricoh Corp.,\n\n487 U.S. 22, 29 (1988)). However, it declined to transfer the case, in part, because \"on the\n\npresent record, the Court cannot conclude as a matter of law that [Plaintiffs] assented to\n\nreasonably communicated forum-selection clauses.\" Id. at 34. At the motion to dismiss stage, the\n\nCourt was required to accept Plaintiffs' allegations as true, but the Court could also consider\n\nadditional exhibits or declarations. After reviewing all of the documents provided by the parties,\n\nthe Court concluded that there was \"insufficient evidence to support a conclusion as a matter of\n\nlaw that Plaintiffs were on inquiry notice of the forum-selection provision.\"\" Id. at 37.\n\n Plaintiffs subsequently filed a second amended complaint by stipulation of the parties.\n\nSee Dkt. Nos. 28, 29, 31. Defendant filed a pre-motion letter requesting a conference concerning\n\nthe Court's November decision. See Dkt. No. 32. Specifically, Defendant requested clarification\n\nas to the extent of the Court's grant of Defendant's motion to dismiss. See id.\n\n On December 19, 2023, Defendant served its first set of interrogatories and documents\n\nrequests on Plaintiffs. See Dkt. No. 109 at 10. Various requests concerned Plaintiffs' notice about\n\nthe forum-selection clauses in Defendant's terms of service. See id. at 10-11.\n\n The Court then granted the parties permission to file briefs addressing the clarification\n\nissue raised by Defendant, and on January 4, 2024, it granted Defendant's request to dismiss\n\nadditional claims. See Dkt. Nos. 34, 35, 36, 37. The Court also granted Plaintiffs leave to file a\n\nthird amended complaint. See Dkt. No. 37. On January 24, 2024, \"Plaintiffs objected to\n\n\n\n 3\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 4 of 26\n\n\n\n[Defendant's discovery] requests as 'not relevant' but provided no explanation.\" Dkt. No. 109 at\n\n11.\n\n Plaintiffs filed their third amended complaint on February 2, 2024, and Defendant\n\nanswered the complaint on February 16, 2024. See Dkt. Nos. 39, 43. As part of its answer,\n\nDefendant asserted an affirmative defense alleging improper venue because of the forum\n\nselections clauses in its terms of service. See Dkt. No. 43 at 40. On February 16, 2024,\n\nDefendant also sent Plaintiffs a discovery-related deficiency letter. See Dkt. No. 109 at 11. On\n\nFebruary 27 and March 13, 2024, the parties conferred to attempt to resolve the issues. See id.\n\n The parties filed their civil case management plan on March 8, 2024. See Dkt. No. 45. As\n\npart of the plan, Defendant explained that \"[t]he Court denied in part Meta's motion to dismiss or\n\ntransfer based on the record at the pleading stage, but Meta anticipates that discovery will\n\nstrengthen the record for Meta, which may then seek summary judgment on the issues of personal\n\njurisdiction and venue.\" Id. at 3. Defendant stated that \"[i]n addition to the above, the parties\n\ngenuinely dispute whether Plaintiff Car-Freshner Corp. assented to a valid forum selection clause\n\nrequiring transfer of this action.\" Id. at 5.\n\n Magistrate Judge Lovric issued a Uniform Pretrial Scheduling Order (\"UPSO\") on March\n\n15, 2024. See Dkt. No. 47. The UPSO stated, in relevant part, that \"THE DEADLINES SET IN\n\nTHIS SCHEDULING ORDER SUPERSEDE THE DEADLINES SET FORTH IN FED. R.\n\nCIV. P.26(a)(3) AND ARE FIRM AND WILL NOT BE EXTENDED, EVEN BY\n\nSTIPULATION OF THE PARTIES, ABSENT GOOD CAUSE.\" Id. at 1. Immediately\n\nbelow this admonition, the UPSO ordered that venue motions be filed within sixty days of the\n\ndate of the Order, which was May 14, 2024. See id.\n\n\n\n\n 4\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 5 of 26\n\n\n\n On March 26, 2024, Plaintiffs responded in writing to Defendant's deficiency letter. See\n\nDkt. No. 109 a 12. Plaintiffs argued that Defendant was not entitled to the discovery it was\n\nseeking related to venue because it was not permitted to file a second motion to transfer. See id.\n\nat 13. Defendant responded to Plaintiffs on April 19, 2024. See id. The parties filed status\n\nreports to Magistrate Judge Lovric on April 30, 2024. See Dkt. Nos. 65, 66. Defendant's status\n\nreport indicated that \"[i]f the parties cannot resolve any outstanding disputes, Meta will bring\n\nthem to the Court\u2019s attention. Other than this potential motion to compel, no further motion\n\npractice is expected at this time.\" Dkt. No. 66 at 2. Neither status report detailed the context of\n\nthe discovery disputes. See Dkt. Nos. 65, 66. Plaintiffs responded to Defendant's April 19, 2024,\n\nletter on May 8, 2024. See Dkt. No. 109 at 13.\n\n In its present appeal, Defendant states that \"Plaintiffs filed their first document production\n\non May 22, 2024 (more than a week after the venue motion deadline), and that production did not\n\ncontain any documents responsive to Meta's forum-selection clause discovery requests.\n\nAccordingly, Meta began preparing a motion to compel.\" Id. Defendant filed its motion to\n\ncompel on June 13, 2024, one month after the venue motion deadline passed. See Dkt. No. 79.\n\nDefendant's motion to compel indicated that many of the disputed discovery requests were related\n\nto Defendant's defense of improper venue. See id. at 1, 3-6, 8. The motion to compel said\n\nnothing about the venue motion deadline.\n\n Plaintiffs responded in opposition to Defendant's motion to compel on June 28, 2024. See\n\nDkt. No. 82. Plaintiffs argued that Magistrate Judge Lovric should deny Defendant's motion\n\nconcerning discovery requests related to venue because the time to bring a venue motion had\n\nexpired under the deadlines set in the UPSO. See id. at 4. Plaintiffs also asserted that Defendant\n\nhad waived its improper venue affirmative defense by failing to raise it in its pre-answer motion\n\n\n\n 5\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 6 of 26\n\n\n\nto dismiss. See id. at 5. Plaintiffs argued that Defendant chose to bring the motion to transfer\n\nprior to discovery and that Defendant is not entitled to a second opportunity, particularly because\n\nthe Court already denied the request to transfer based on the forum selection clauses. See id. at 5-\n\n6.\n\n Magistrate Judge Lovric held oral argument on Defendant's motion to compel and issued\n\nan oral decision on July 8, 2024. See Dkt. No. 86. As set forth in a 106-page transcript,\n\nMagistrate Judge Lovric went through each discovery dispute one at a time. See id. at 87.\n\nPlaintiffs argued that the venue-related discovery requests were improper because \"venue is no\n\nlonger a relevant issue in this case. As we discussed in the letter, there's several reasons for this.\n\nThe first is that the time to make a motion for change of venue has expired.\" Id. at 8. Plaintiffs\n\nalso stated that \"[t]he next reason venue is no longer a live issue in this case is that to the extent\n\nMeta is arguing that it is an affirmative defense under 12(b)(3), then they've waived that. They\n\nmade a Rule 12 motion already in this case, and they did not move on Rule 12(b)(3).\" Id.\n\nPlaintiffs noted that after this Court denied Defendant's motion to dismiss, Defendant did not seek\n\nleave to renew its motion after discovery. See id. at 9.\n\n In response, Defendant argued that it did not waive the venue affirmative defense \"merely\n\nbecause when [it] moved to dismiss, [it] cited 1404 instead of Rule 12(b)(3).\" Id. at 13.\n\nDefendant asserted that this Court's previous denial of the request to transfer does not negate\n\nDefendant's ability to ever seek such relief in the future because \"[t]here is nothing in that order\n\nthat would override the general procedures that allow one to renew a motion or seek\n\nreconsideration of a motion when new facts arise.\" Id. at 14. As to the deadline set forth in the\n\nUPSO, Defendant argued as follows:\n\n\n\n\n 6\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 7 of 26\n\n\n\n Well, obviously the reason we're here is that the plaintiffs have been\n refusing to give us the discovery that would allow us to renew our\n motion or seek reconsideration, and very conveniently did so\n beyond the time of the deadline to file that motion, and therefore, if\n we get the discovery, and it shows the evidence we believe it will,\n which will support our forum selection clause defense, we would\n move to amend the scheduling order and we would have good\n cause because the good cause would be we now have the discovery,\n we didn't have it before the deadline and so now is the time to bring\n the motion. So the mere fact that there was an initial deadline to\n file those motions shouldn't preclude us from seeking the discovery\n at this time.\n\nId. at 15.\n\n Magistrate Judge Lovric began \"first by stating something that I said at the Rule 16 initial\n\nconference. I most often do, especially depending on the parties and their practices in this district,\n\nI always, some degree or another, tell the parties, read the Uniform Pretrial Scheduling Order,\n\nreview it because you're going to be bound by those deadlines.\" Id. at 21-22. He explained that\n\n\"[s]ome of those are my deadlines, some of them are the district judge's practices, and there's\n\nquite a few in there, there's quite a few things in there that the parties are bound by.\" Id. at 22.\n\nMagistrate Judge Lovric read from the UPSO, reiterating the first bolded statement that the parties\n\nare bound by the dates absent a showing a good cause, as well as the statement setting the venue\n\nmotion deadline. See id. He told Defendants' counsel, \"that expired.\" Id.\n\n Counsel argued that Defendant's \"argument is that we would be moving under the portion\n\nof the order that specifically says it can be modified for good cause, and the good cause here is,\n\nwe served requests, they've stonewalled us by not giving us the information but once we get it . . .\n\nOnce we have it, we have good cause.\" Id. at 22-23. Magistrate Judge Lovric informed\n\nDefendant's attorney as follows:\n\n let me tell you something about how this works. You and the\n plaintiffs don't get to decide if a motion, or excuse me, if a deadline\n\n\n\n 7\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 8 of 26\n\n\n\n is going to be renewed or reopened. Once the deadline expires, that\n was my court order. If you want an extension, you make it before\n the deadline expires. For example, the plaintiffs apparently knew\n that they wanted to file \u2013 seek leave to file a fourth amended\n complaint, so they, at least on one, maybe two occasions, asked the\n court to extend that deadline, the deadline that was in the Uniform\n Pretrial Scheduling Order as to when any motion for joinder or\n amended pleadings was to be filed, and they moved to extend and I\n believe in one telephone conference they raised that and gave me\n some indication of why. So I authorized that extension. At no time\n to my recollection, I looked at the docket pretty carefully, and I\n don't hear it today, at no time did the defendant request the court to\n extend the deadline for the filing of any venue motion. So that\n deadline has expired, it's gone, it's two months ago. That deadline\n expired on May 15th of 2024. So almost two months ago.\n\n Now, the [D]efendant's view is, well, we'll decide if and\n when we think we'd like to get that deadline reopened, we'll decide\n to bring that up with the court. That's your prerogative but you\n operate at your own peril. Because I think the uniform order is\n pretty clear, it will not be extended, even by stipulation of parties,\n absent good cause. Good cause includes why you failed to ask for\n the extension of the deadline. I've not heard anything today, I've\n not heard anything thus far other than you're waiting for discovery.\n If that were the case, every one of my deadlines would be\n meaningless. The deadline to give notice for expert disclosures,\n well, Judge, we're still using discovery, we're not ready. Oh, well,\n then my deadline means nothing. Or the deadline for when\n discovery ends. I'll say right here to both sides, if you blow that\n deadline in December for discovery, you're done. Discovery's over.\n Unless you get an extension from this court.\n\nId. at 23-24. Magistrate Judge Lovric concluded \"venue is gone, it's done. That expired two\n\nmonths ago.\" Id. at 24. He therefore denied Defendant's motion to compel concerning venue-\n\nrelated discovery requests. See Dkt. No. 86.\n\n On July 15, 2024, Defendant filed a letter motion seeking a conference with Magistrate\n\nJudge Lovric to modify the UPSO and for reconsideration of his denial of Defendant's motion to\n\ncompel based on expiration of the venue motion deadline. See Dkt. No. 88. Defendant argued\n\nthat it had good cause for extending the UPSO because it could not have sought to earlier modify\n\n\n\n 8\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 9 of 26\n\n\n\nthe schedule without Plaintiffs turning over the necessary discovery. See id. at 2. Defendant\n\nstated that it \"believed it could not have brought a successful Rule 16(b) motion prior to the\n\nexpiration of the venue deadline.\" Id.\n\n Magistrate Judge Lovric held a conference on July 19, 2024. See Dkt. No. 93. At the start\n\nof the conference, he reminded the parties to review the current deadlines set forth in the UPSO.\n\nSee Dkt. No. 101 at 3. Defendant first explained that it \"took your Honor's scheduling order very\n\nseriously and carefully considered it and did not cavalierly disregard it. Quite the opposite. My\n\nclient carefully considered its options as to venue before the deadline passed, and my client made\n\na procedural decision that they believed was not only the best use of the court's resources but is\n\nalso supported by many authorities within the Second Circuit and outside the Second Circuit.\" Id.\n\nat 5. Defendant then detailed the timing of its discovery requests and Plaintiffs' responses. See\n\nid. at 5-8.\n\n Defendant stated that \"at that time Meta considered what to do about the venue motion\n\ndeadline. So, Meta considered a long line of cases of discussing . . . what it means to establish\n\ngood cause to modify a scheduling order. And there are many cases that have held that good\n\ncause cannot be shown unless the party has in its hand the new evidence, the new information that\n\nwould justify a modification of the scheduling order.\" Id. at 8. It continued, explaining that\n\n\"[t]he point with all this is that Meta concluded that it would be a waste of the court's resources\n\nfor Meta to bring a motion to modify the scheduling order based on hypothetical information that\n\nit might get from plaintiffs if the court agreed that the discovery was later appropriate.\" Id. \"So,\n\nMeta decided to instead just pursue the discovery, seek relief from the court in the form of a\n\nmotion to compel. And if the court granted the motion to compel, and if plaintiffs produced\n\ninformation that Meta believe warranted another motion to transfer venue, then, and only then,\n\n\n\n 9\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 10 of 26\n\n\n\nwould Meta bring the issue of modification of the scheduling order to the court's attention and\n\nattempt to show good cause, in which case the court could, of course, still deny it for lack of good\n\ncause.\" Id. at 10.\n\n Magistrate Judge Lovric responded as follows:\n\n I'm even less impressed today than last time with Meta's\n response, which is what you've articulated here confirms what the\n court concluded at the last hearing, which is Meta decided to do it\n their way, and that's fine, that's what Meta decided to do, but then\n when your way doesn't work because the court is not going to bend\n to go your way, then Meta would like the court to go back and give\n Meta additional time and additional extensions. So, I'm just not\n impressed and I'm underwhelmed with that explanation which is\n that Meta decided to ignore my court order. You just said that to\n me. And then you gave me a reason why Meta decided to ignore\n my court order. I'm unimpressed with that, because the way this\n process works is the court sets orders, the parties follow it or you\n appeal it. You don't get to choose to ignore court orders, any of\n them for any reason whatsoever, unless there is some catastrophic\n global event that causes you not to meet a deadline.\n\n But Meta here, what you chose to do and you just told me\n this, is that Meta decided it was not yet prepared to address the\n venue motion, if any, you still wanted to do and seek information as\n you described, and then Meta decided that if and when it was\n appropriate, Meta would come back to the court and ask the court to\n extend, or whatever the word you want to use, that venue motion\n deadline that expired. That's not the way it works. . . .\n\n So, by the time you brought this to the court's attention, that\n deadline had expired for approximately two months, and the only\n reason you made, at least you brought that to the court's attention, in\n my view is because the plaintiffs rightfully so said it's not relevant.\n You're asking for things that are no longer relevant. Venue is gone,\n venue motion deadline expired, we need to move on with discovery.\n And again, Meta wanted to do it their way. . . .\n\n I'm just not impressed, Mr. Flemming. Meta is not some\n mom and pop office down the road. You have more attorneys than\n god, and here you are telling me all the reasons why you couldn't do\n this, you couldn't do that and why you need more time. I'm just\n underwhelmed by this whole approach.\n\n\n\n 10\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 11 of 26\n\n\n\n\nId. at 11-15. Magistrate Judge Lovric found \"that Meta's application here today and the last\n\nhearing is not good cause. Good cause is not, well, Judge, we ignored your order because we\n\ndidn't think that was a good way to proceed, we wanted to do it our way, that's not good cause.\n\nGood cause is not, well, we were still discussing with the [P]laintiffs['] discovery and those kind\n\nof things.\" Id. at 19. He noted that \"[t]here is a very good reason why those deadlines are set the\n\nway they are; venue is to be decided early on. And if that is the focal point or was the focal\n\npoint of Meta, you could have pointed that out to the court, directed that discovery should be\n\nfocused on that because if the venue motion sends this case somewhere else, that's it\n\nfor the Northern District of New York, no more resources are expended. But you didn't do that.\"\n\nId. at 21. Finally, Magistrate Judge Lovric determined that \"[t]o the extent that your letter docket\n\n88 is asking for this court's reconsideration of my July 8th, 2024 decision, that decision again is\n\nfound at text order number 86, I am denying that motion for reconsideration.\" Id. at 22; see also\n\nDkt. No. 44.\n\n Over Defendant's objection and with permission from Magistrate Judge Lovric, Plaintiffs\n\nfiled their fourth amended complaint on August 1, 2024. See Dkt. Nos. 81, 95, 104, 107. On\n\nAugust 2, 2024, Defendant appealed Magistrate Judge Lovric's discovery decisions and\n\n\"respectfully requests that the Court modify the [July 8, 2024] Ruling to compel Plaintiffs to\n\ncomply with all appropriate forum-selection clause discovery, and either set aside the [July 19,\n\n2024] Ruling entirely, or modify it to grant Meta's request to extend the deadline to file venue\n\nmotions to thirty days after Plaintiffs' compliance with such discovery.\" Dkt. No. 109 at 8.\n\n\n\n\n 11\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 12 of 26\n\n\n\n III. DISCUSSION\n\nA. Legal Standard\n\n Magistrate judges are empowered with broad discretion relative to non-dispositive pre-\n\ntrial matters. See 28 U.S.C. \u00a7 636(b)(1)(A); see also FED. R. CIV. P. 72(a). As a result, a party\n\nseeking to disturb a magistrate's non-dispositive discovery order bears a heavy burden. See\n\nCarmona v. Wright, 233 F.R.D. 270, 276 (N.D.N.Y. 2006); United States v. United States\n\nCurrency in Sum of Twenty-One Thousand Nine Hundred Dollars, No. 98-CV-6168, 1999 WL\n\n993721, *2 (E.D.N.Y. Sept. 21, 1999); American Stock Exchange, LLC v. Mopex, Inc., 215\n\nF.R.D. 87, 90 (S.D.N.Y. 2002).\n\n On appeal, the district court reviews a magistrate judge's non-dispositive orders under the\n\n\"clearly erroneous or contrary to law\" standard of review. FED. R. CIV. P. 72(a); see also Thomas\n\nE. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990); Carmona, 233 F.R.D. at 275.\n\nA magistrate judge's order is \"clearly erroneous\" when the reviewing court is \"left with the\n\ndefinite and firm conviction that a mistake has been committed.\" Carmona, 233 F.R.D. at 276\n\n(citing Concrete Pipe and Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508\n\nU.S. 602, 622 (1993)). \"An order is contrary to law 'when it fails to apply or misapplies relevant\n\nstatutes, case law or rules of procedure.'\" Carmona, 233 F.R.D. at 276 (citing Tompkins v. R.J.\n\nReynolds Tobacco Co., 92 F. Supp. 2d 70, 74 (N.D.N.Y. 2000)).\n\n In applying this standard, it has been consistently held that a magistrate judge's discovery\n\ndecision should be afforded substantial deference and should only be overturned where there is a\n\nclear abuse of discretion. See U2 Home Entm't, Inc. v. Hong Wei Int'l Trading Inc., No. 04-CV-\n\n6189, 2007 WL 2327068, *1 (S.D.N.Y. Aug. 13, 2007) (citation omitted). Moreover, courts in\n\nthe Second Circuit have held that \"the critical inquiry is whether there is legal authority that\n\n\n\n 12\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 13 of 26\n\n\n\nsupports the magistrate's conclusion[,]\" and if so, then \"there is no abuse of discretion.\"\n\nCarmona, 233 F.R.D. at 276 (citing Tompkins, 92 F. Supp. 2d at 74); see also Moss v. Enlarged\n\nCity Sch. Dist. of City of Amsterdam, 166 F. Supp. 2d 688, 670 (N.D.N.Y. 2001) (\"That\n\nreasonable minds may differ on the wisdom of granting [a party's] motion does not mean that the\n\ndecision is clearly erroneous or contrary to law\").\n\nB. Local Rule 72.1(b)\n\n Plaintiffs first argue that Defendant's appeal should be dismissed because it failed to\n\ncomply with Local Rule 72.1(b). See Dkt. No. 122 at 14. Local Rule 72.1(b) states that \"[a]ny\n\nparty may file an appeal from a Magistrate Judge's decision of a non-dispositive matter to the\n\nDistrict Judge by filing with the Clerk and serving upon all parties their appeal to the decision.\"\n\nN.D.N.Y. L.R. 72.1(b). The Rule requires that the appealing party \"file and serve its notice of\n\nappeal and appellant's brief within fourteen (14) days after being served with the Magistrate\n\nJudge's order and must specifically designate the order or part of the order from which the party\n\nseeks relief and the basis for the appeal.\" Id.\n\n Plaintiffs contend that Defendant fails to identify the specific portions of Magistrate Judge\n\nLovric's Orders that it is appealing; therefore, the appeal should be denied. See Dkt. No. 122 at\n\n14. Defendant argues that it complied with Local Rule 72.1(b) because the Rule does not require\n\nthe notice of appeal to be a separate document and it identified and quoted the specific portions of\n\nthe Orders it is challenging. See Dkt. No. 129 at 14.\n\n Although Defendant does not state the precise pages of the transcripts that it is\n\nchallenging from Magistrate Judge Lovric's oral decisions, Defendant's notice of appeal sets forth\n\nwith sufficient specificity the portions of the Orders it is challenging. Defendant clearly identifies\n\nthe two Orders it is challenging, explains why it disagrees with the conclusions, and cites case law\n\n\n\n 13\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 14 of 26\n\n\n\nto support its arguments. See Dkt. No. 109. As the appeal is specific enough to meet Rule\n\n72.1(b)'s demands, the Court rejects Plaintiff's argument on this issue.\n\nC. Whether Magistrate Judge Lovric's Orders are Clearly Erroneous\n\n Defendant argues that Magistrate Judge Lovric's decisions were clearly erroneous because\n\n(1) its failure to timely bring a venue-related motion did not foreclose their ability to ever do so\n\nand discovery was therefore necessary to their improper venue defense; (2) Defendant is not\n\nrequired to seek to modify a scheduling order prior to the passing of the relevant deadline; and (3)\n\nDefendant has good cause for failing to timely bring a venue-related motion. See Dkt. No. 109.\n\n Defendant argues that \"the passage of the venue motion deadline could not serve as the\n\nsole basis for denying Meta'[s] motion to compel.\" Dkt. No. 109 at 18. Defendant contends that\n\n\"[t]he Fifth Circuit confronted a similar situation in Innova Hosp. San Antonio, Ltd. P'ship v. Blue\n\nCross & Blue Shield of Georgia, Inc., 892 F.3d 719 (5th Cir. 2018).\" Id. at 19. Defendant states\n\nthat \"[t]he Fifth Circuit held that even though the plaintiff never moved to compel on th[e\n\nrelevant] issue, the plaintiff's amendment deadline should have been extended.\" Id. Defendant\n\ndoes not provide any citation to support this purported holding. That is because, as Plaintiffs\n\ncorrectly explain, the Fifth Circuit held no such thing. See Dkt. No. 122 at 18.\n\n In Innova Hospital, the Fifth Circuit reviewed a district court's grant of the defendant's\n\nmotion to dismiss the plaintiff's ERISA claims as well as the district court's denial of the\n\nplaintiff's request for leave to amend the complaint. See Innova Hosp., 892 F.3d at 723. The\n\nFifth Circuit first concluded that the district court erred in dismissing some of the plaintiff's\n\nclaims. See id. at 731-32. Then, as to amendment, the court noted that leave to amend had been\n\ndenied because the plaintiff was \"out of time.\" Id. at 734. The Fifth Circuit explained that\n\n\"'[o]nly upon the movant's demonstration of good cause to modify the scheduling order will the\n\n\n\n 14\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 15 of 26\n\n\n\nmore liberal standard of Rule 15(a) apply to the district court's decision to grant or deny leave.'\"\n\nId. at 734-35 (quoting S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536\n\n(5th Cir. 2003)). The court concluded that because the plaintiff \"fails to argue or even to identify\n\nthe legal standard relevant to whether the district court abused its discretion in denying the\n\nHospital's motion for leave to amend out of time,\" the plaintiff \"forfeited this argument.\" Id. at\n\n735.\n\n Defendant relies on the case by stating that \"[t]he Fifth Circuit was unequivocal in Innova\n\nthat using a dismissal order to resist discovery until after the amendment deadline has passed is\n\nsanctionable conduct, and that Plaintiffs have no defense for their highly similar misconduct\n\nhere.\" Dkt. No. 129 at 8. It is true that the Fifth Circuit noted that the Insurer defendants did not\n\nproduce insurance plan documents to the plaintiff until after the deadline to re-plead had passed\n\nand the defendants then used the district court's dismissal order as a basis to refuse \"to produce\n\nplan documents during the time the district court gave the [plaintiff] an opportunity to re-plead.\"\n\nInnova Hosp., 892 F.3d at 730. The Fifth Circuit explained that \"this is not a case in which the\n\nplaintiff has ready access to plan documents and fails to identify the specific plan language at\n\nissue\" and \"'[c]ounsel have an obligation, as officers of the court, to assist in the discovery process\n\nby making diligent, good-faith responses to legitimate discovery requests.'\" Id. at n.9 (quoting\n\nMcLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485-86 (5th Cir. 1990)).\n\nThe Fifth Circuit did not further comment or hold that the plaintiff's amendment deadline should\n\nhave been extended by the district court. The Fifth Circuit concluded only that the plaintiff\n\npleaded sufficient facts to survive the defendants' motion to dismiss and \"that when discoverable\n\ninformation is in the control and possession of a defendant, it is not necessarily the plaintiff's\n\nresponsibility to provide that information in her complaint.\" Id. at 730.\n\n\n\n 15\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 16 of 26\n\n\n\n Here, Defendant is correct that Plaintiffs did not comply with Defendant's discovery\n\nrequests before the venue motion deadline passed. To date, Plaintiffs have not complied because\n\nMagistrate Judge Lovric denied Defendant's motion to compel. The Court agrees that both parties\n\nhave an obligation to engage in good faith efforts throughout discovery. See N.D.N.Y. L.R.\n\n37.1(a) (\"Parties must make good faith efforts among themselves to resolve or reduce all\n\ndifferences relating to discovery prior to seeking court intervention\"). Additionally, discovery is\n\ngenerally permitted as relevant where the information could aid in presenting an affirmative\n\ndefense. See FED. R. CIV. P. 26(d) (\"Parties may obtain discovery regarding any nonprivileged\n\nmatter that is relevant to any party's claim or defense . . .\").\n\n Despite pleading improper venue an affirmative defense in its answer filed on February\n\n16, 2024, see Dkt. No. 43, Defendant did not argue improper venue pursuant to Rule 12(b)(3) or\n\n28 U.S.C. \u00a7 1406(a) in its pre-answer motion to dismiss filed on March 13, 2023. See Dkt. No.\n\n17-1. In fact, Defendant did not argue \"improper\" venue at all. See id. Defendant argued only\n\nthat transfer of venue was appropriate in the interest of justice pursuant to 28 U.S.C. \u00a7 1404(a).\n\nSee id. at 20.\n\n Generally, \"'[w]hile motions to transfer are typically considered at an early stage in a case\n\n. . . nothing bars a court from granting a motion to transfer venue at a later stage in a case.'\"\n\nHamilton Int'l Ltd. v. Vortic LLC, 414 F. Supp. 3d 612, 623 (S.D.N.Y. 2019) (quoting Jones v.\n\nWalgreen Co., 463 F. Supp. 2d 267, 271 (D. Conn. 2006)). However, failure to raise improper\n\nvenue pursuant to Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. \u00a7 1406 constitutes\n\nwaiver. See FED. R. CIV. P. 12 (\"A motion asserting any of these defenses[, including improper\n\nvenue,] must be made before pleading if a responsive pleading is allowed\"); Smart v. Goord, 21\n\nF. Supp. 2d 309, 318 n.6 (S.D.N.Y. 1998) (\"Waiver of objection to improper venue only pertains\n\n\n\n 16\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 17 of 26\n\n\n\nto a motion to dismiss or transfer on the basis of improper venue pursuant to 28 U.S.C. \u00a7 1406(a),\n\nnot to a motion to transfer for convenience and the interest of justice pursuant to 28 U.S.C. \u00a7\n\n1404(a)\"); Peterson v. Wells Fargo Bank, N.A., No. 3:20-CV-781, 2022 WL 972415, *7 (D.\n\nConn. Mar. 31, 2022), adhered to on reconsideration, 2022 WL 1605468 (D. Conn. May 20,\n\n2022), and aff'd, No. 22-1343-CV, 2023 WL 4363239 (2d Cir. July 6, 2023) (\"Improper venue is\n\na waivable issue, and any objection to venue is considered waived where not asserted in a\n\ndefendant's responsive pleading, including a pre-answer motion to dismiss\").\n\n In its reply to the present appeal, Defendant argues they did not waive its forum selection\n\nclause defense because it \"raised the defense in its first filing (the motion to dismiss or transfer)\n\nand in its first answer,\" and public policy favors transfer in favor of forum selection clauses. Dkt.\n\nNo. 129 at 13. Defendant cites a case where the court concluded that the defendant did not waive\n\nthe issue because the defendants \"raised the forum selection clause at the earliest possible time: as\n\nan affirmative defense in their answer.\" Id. at 13-14 (citing Jockey Int'l, Inc. v. M/V 'Leverkusen\n\nExpress', 217 F. Supp. 2d 447, 455 (S.D.N.Y. 2002)). Defendant cites to the precise page number\n\nin its answer wherein it raised the affirmative defense of improper venue. See id. at 13 (citing\n\nDkt. No. 43 at 40). However, as to its pre-answer motion to dismiss, Defendant cites its entire\n\nmemorandum of law. See id. (citing Dkt. No. 17-1). Defendant did not and cannot cite to a\n\nspecific portion of its pre-answer motion to support its argument that it raised the improper venue\n\ndefense because it, in fact, did not raise improper venue in its pre-answer motion. See Dkt. No.\n\n17-1. Rather, it argued only that \"the Court should transfer this action to the Northern District of\n\nCalifornia pursuant to 28 U.S.C. \u00a7 1404(a).\" Id. at 20.\n\n Noteworthy to the Court is the lack of case law provided by Defendant establishing its\n\nentitlement to bring a second motion to transfer venue. In an April 19, 2024, letter Defendant\n\n\n\n 17\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 18 of 26\n\n\n\nstated that it \"provided the requested authority [to Plaintiffs] via email on March 26, 2024.\" Dkt.\n\nNo. 79-9 at 4. In its present appeal, Defendant contends that \"[b]ecause Plaintiffs refused to\n\ncomply fully with over 70 of Meta's discovery requests, Meta sent Plaintiffs an extensive\n\ndeficiency letter on February 16, 2024 that cited at least twenty cases supporting its position.\"\n\nDkt. No. 109 at 11. Following Plaintiffs' response which argued that Defendant was not entitled\n\nto file a second motion to transfer, \"Plaintiffs offered to consider authorities to the contrary, so the\n\nsame day, Meta responded via email that it had several avenues to potentially raise the forum-\n\nselection clause issue, including by requesting leave to renew its prior motion to transfer or\n\nthrough a motion under Federal Rule of Civil Procedure 54(b) or 60(b)(2).\" Id. at 13. Defendant\n\nhas not provided these purported emails or the \"twenty cases supporting its position\" that it should\n\nbe permitted to file a second motion to transfer. Id. at 11.\n\n Further, the Court agrees with Plaintiff that Defendant likely would not have been able to\n\nseek reconsideration of the Court's prior transfer decision. Defendant argues that anything it\n\nlearned through discovery would have been \"new evidence,\" but it fails to explain how such\n\nevidence could not have been earlier discovered with reasonable diligence. Dkt. No. 129 at 11-\n\n12; see also S.E.C. v. Wojeski, 752 F. Supp. 2d 220, 223 (N.D.N.Y. 2010), aff'd sub nom. Smith v.\n\nS.E.C., 432 Fed. Appx. 10 (2d Cir. 2011) (\"Where . . . a party seeks reconsideration on the ground\n\nof new evidence, the moving party must demonstrate (1) evidence existing at the time of the prior\n\ndecision, (2) the evidence could not have been discovered in the exercise of reasonable diligence,\n\n(3) that evidence is admissible, and (4) the evidence would probably change the result of the prior\n\nruling\"); In re Ski Train Fire in Kaprun, Austria, on Nov. 11, 2004, 224 F.R.D. 543, 545-46\n\n(S.D.N.Y. 2004) (\"Pursuant to Rule 54(b), the Court has authority to revise decisions entered\n\nbefore the entry of a final judgment . . . . The Second Circuit explained . . . that an earlier\n\n\n\n 18\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 19 of 26\n\n\n\ndecision in ongoing litigation 'may not usually be changed unless there is an intervening change\n\nof controlling law, the availability of new evidence, or the need to correct a clear error or prevent\n\na manifest injustice'\") (quotation omitted).\n\n As Magistrate Judge Lovric explained during the July 19, 2024, hearing, the parties \"had\n\ndiscovery going even before [the] Rule 16.\" Dkt. No. 101 at 19. As Plaintiff argues, Defendant\n\nchose to make its motion to transfer prior to obtaining any of the disputed information through\n\ndiscovery. See Dkt. No. 122 at 6-7, 12. Although Defendant is correct that venue issues should\n\nbe handled early in the case, that is why a venue motion deadline is set for only sixty days after\n\nthe filing of the UPSO.1 Regardless of whether Defendant could have sought reconsideration on\n\nthe Court's motion to dismiss based on newly discovery evidence, Magistrate Judge Lovric's\n\ndecisions to deny the motion to compel based on untimeliness and deny a request to extend the\n\nrelevant deadline is not clearly erroneous.\n\n To argue otherwise, Defendant relies on Morgan v. Gusman, No. 06-CV-5700, 2010 WL\n\n1936215 (E.D. La. May 12, 2010). See Dkt. No. 109 at 18-19; Dkt. No. 122 at 17; Dkt. No. 129\n\nat 7. In Morgan, the court recognized that \"the liberal parameters of Fed.R.Civ.P. 15 would\n\nrequire the Court to consider a motion to amend, even if presented beyond the Court's scheduling\n\ndeadline. The Court's scheduling order itself allows for the possibility of extending the deadlines\n\nand cut-offs by order of the Court on good cause shown.\" Morgan, 2010 WL 1936215, at *4. In\n\nthat case, the Fifth Circuit previously reversed the district court's order denying a motion to\n\n\n\n\n1\n \"While motions to transfer are typically considered at an early stage in a case, and '[v]enue\nobjections are waived if not timely asserted,' . . . nothing bars a court from granting a motion to\ntransfer venue at a later stage in a case.\" Jones v. Walgreen Co., 463 F. Supp. 2d 267, 271 (D.\nConn. 2006) (quoting Smith v. Woosley, 399 F.3d 428, 434 (2d Cir. 2005), and citing Lencco\nRacing Co., Inc. v. Arctco, Inc., 953 F. Supp. 69, 70 n.1 (W.D.N.Y. 1997) (\"A motion to transfer\nvenue may be made at any time\")).\n\n 19\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 20 of 26\n\n\n\ndismiss based on qualified immunity. See id. at *2. \"The Fifth Circuit remanded the matter back\n\nto the District Court to allow for discovery limited to the qualified immunity issue. The District\n\nJudge issued a scheduling order . . . .\" Id.\n\n The plaintiff moved to compel defense counsel to produce a witness for deposition, but the\n\ndefendant opposed the request because \"the deposition is futile because the plaintiff can no longer\n\namend his complaint to include facts sufficient to overcome the qualified immunity defense. The\n\ndeadline to amend passed and the plaintiff has not yet amended the complaint since the remand by\n\nthe Fifth Circuit. Second, the plaintiff can not take an unlimited deposition of the [witness] at this\n\ntime.\" Id. The court explained that \"the plaintiff's entitlement to amend his complaint is not\n\nbefore the Court at this time. Amendment was not ordered by the Fifth Circuit and has not been\n\nordered by the District Court. However, the defendants' argument compels the Court to note that\n\nthe opportunity to amend is not a requirement in this case or the only method by which [the\n\nplaintiff] can address qualified immunity.\" Id. at *4. Rather, the issue was whether the\n\ndeposition should be permitted or if it would be futile to the qualified immunity defense. See id.\n\nat *5. The court concluded that the deposition was relevant to the defense and granted the motion\n\nto compel. See id.\n\n This case does not aid Defendant. It did not address whether the plaintiff should have\n\nbeen permitted to amend the complaint after the amendment deadline had passed. Insofar as\n\nDefendant argues that the case supports the conclusion that a scheduling order can allow for an\n\nextension of deadlines, see Dkt. No. 129 at 7, no one disagrees with that assertion. The USPO\n\nstates that deadlines can be extended upon a showing of good cause. See Dkt. No. 47 at 1.\n\nHowever, Magistrate Judge Lovric's conclusion that Defendant failed to show such good cause is\n\nnot clearly erroneous.\n\n\n\n 20\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 21 of 26\n\n\n\n Defendant argues that it has presented \"fifteen cases confirming that a party does not need\n\nto move to modify a deadline before its expiration to demonstrate good cause, including five from\n\nthe Northern District.\" Dkt. No. 129 at 11. Plaintiff argues as follows:\n\n Meta does not cite any case where it was found to be clear\n error for a magistrate to deny a party's request to reopen an expired\n venue motion deadline, let alone where the party admitted, as Meta\n did here, that it was plotting to potentially make a venue motion\n following discovery, but nonetheless deliberately chose not to seek\n an extension of the venue motion deadline before it expired. It is\n self-evident that this scenario is markedly different than the cases\n Meta cites where a party sought to amend its pleading or join new\n parties based on information discovered after the deadline to move\n to amend had passed.\n\nDkt. No. 122 at 25.\n\n Defendant cites Veeder v. Nutting, in which this Court explained that \"Defendants are\n\ncorrect that the date set for the filing of amended pleadings in the Uniform Pre-Trial Scheduling\n\nOrder has already passed. It appears from the record before the Court, however, that Plaintiffs did\n\nnot become fully aware of the facts surrounding their claims until depositions were completed in\n\nDecember of 2011.\" No. 1:10-CV-00665, 2012 WL 1416266, *6 (N.D.N.Y. Apr. 24, 2012). In\n\nVeeder, the \"Plaintiffs moved to amend their complaint a little more than three months after the\n\ndate in the Scheduling Order, and in response to [a] . . . Memorandum-Decision and Order.\" Id.\n\nThe court concluded that because \"Plaintiffs learned of these necessary facts during the course of\n\ndiscovery and filed their motion to amend their complaint within a reasonable time after\n\ndiscovering these facts, the Court finds that Plaintiffs acted diligently in filing their proposed\n\namended complaint.\" Id.\n\n Veeder is not persuasive. Here, Defendant did not obtain information that was newly\n\ndiscovered upon which to base a delayed motion. Rather, it had not obtained any of the\n\n\n\n\n 21\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 22 of 26\n\n\n\ninformation it sought. Contrary to Defendant's assertion, Veeder does not state that \"a party does\n\nnot need to move to modify a deadline before its expiration to demonstrate good cause.\" Dkt. No.\n\n129 at 11. Rather, this Court used its discretion and judgment to conclude that good cause had\n\nbeen shown under the specific circumstances of that case. This Court's conclusion in Veeder does\n\nnot equate to a finding that Magistrate Judge Lovric clearly erred in this case.\n\n Further, as Plaintiff explains, the cases Defendant relies on concern the modification of\n\ndeadlines for moving to amend a complaint or for filing an amended complaint. See Dkt. No. 122\n\nat 25; citing Enzymotec Ltd. v. NBTY, Inc., 754 F. Supp. 2d 527, 536 (E.D.N.Y. 2010); Ruel v.\n\nMcGrath, No. 1:12-CV-417, 2013 WL 12130427, *3 (N.D.N.Y. June 21, 2013); Robinson v.\n\nTown of Colonie, No. 91-CV-1355, 1993 WL 191166, *2 (N.D.N.Y. June 3, 1993); Mason\n\nTenders Dist. Council of Greater New York v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 32\n\n(S.D.N.Y. 2016); Palomino v. O'Leary, No. 08-CV-6490, 2010 WL 3025582, *3 (N.D. Ill. July\n\n29, 2010); Nycomed U.S. Inc. v. Glenmark Generics Ltd., No. 08-CV-5023, 2010 WL 1257803,\n\n*2 (E.D.N.Y. Mar. 26, 2010); Erdogan v. Nassau Cnty., No. 10-CV-05837, 2014 WL 1236679,\n\n*5 (E.D.N.Y. Mar. 25, 2014); Woods Hole Oceanographic Inst. v. ATS Specialized, Inc., No. 17-\n\nCV-12301, 2020 WL 13605451, *1 (D. Mass. Dec. 22, 2020); McClain v. Dugan, No. 9:17-CV-\n\n0046, 2019 WL 6330507, *6 (N.D.N.Y. Oct. 28, 2019); Stewart v. Coyne Textile Servs., 212\n\nF.R.D. 494, 495 (S.D.W. Va. 2003); Knoll, Inc. v. Moderno, Inc., No. 11-CV-488, 2012 WL\n\n3613896, *1 (S.D.N.Y. Aug. 22, 2012)). These cases discuss the balancing of Rule 16's good\n\ncause standard with \"Rule 15's liberal standard where by leave to amend 'shall be freely given.'\"\n\nEnzymotec Ltd., 754 F. Supp. 2d at 536; see Dkt. No. 122 at 25-27. The liberal Rule 15 standard\n\ndoes not apply to venue motions or motions for reconsideration.\n\n\n\n\n 22\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 23 of 26\n\n\n\n Although those courts did find good cause to extend the filing deadline because\n\ninformation underlying a motion to amend was not learned until discovery, that does not make\n\nMagistrate Judge Lovric's decisions clearly erroneous or contrary to law. Rather, his Orders are\n\nsupported by decisions of other courts that have concluded that no good cause exists where the\n\nparty seeking the extension failed to explain why it did not earlier seek the extension. See In re\n\nPlatinum-Beechwood Litig., 393 F. Supp. 3d 401, 403 (S.D.N.Y. 2019), order vacated on\n\nreconsideration on other grounds, No. 18-CV-6658, 2019 WL 5203745 (S.D.N.Y. Sept. 16,\n\n2019) (\"[Plaintiff's] letter does not explain why [plaintiff] or its counsel, prior to the deadline, did\n\nnot ask this Court for an extension of the deadline. This would have allowed the Court to\n\nevaluate the circumstances, minimize delay, avoid prejudice, and coordinate with all the other\n\nmoving parts of this complex litigation. But [plaintiff] chose instead to completely ignore the\n\ndeadline, and more generally the Court's orders. [Plaintiff] offers no explanation for this failure,\n\npresumably because it has none\"); Lee v. Rollinger, No. 16-CV-4126, 2017 WL 5473927, *2\n\n(N.D. Iowa Nov. 14, 2017) (\"If, as plaintiff suggests, she was unable to determine whether she\n\ncould bring a punitive damages claim without answers to her discovery requests, it is unclear why\n\nplaintiff did not seek to compel timely production of discovery. Nor has plaintiff adequately\n\nexplained why she did not seek timely leave to amend the scheduling order once it became\n\napparent that defendants would not provide the requested discovery by August 4, 2017\").\n\n Finally, Plaintiff analogizes and Defendant distinguishes LaFlamme v. Carpenters Local\n\nNo. 370 Pension Plan, 220 F.R.D. 181 (N.D.N.Y. 2003), aff'd, 127 Fed. Appx. 3 (2d Cir. 2005).\n\nSee Dkt. No. 122 at 24-26; Dkt. No. 129 at 10-11. In LaFlamme, the court considered the parties'\n\ncross-motions for summary judgment and the plaintiff's motion to amend. See id. at 183. As to\n\nthe motion to amend, it \"was not received by the court until nearly eighteen months\" after the\n\n\n\n 23\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 24 of 26\n\n\n\ndeadline for amending the complaint passed. Id. at 185. The court explained that the \"Plaintiff\n\nclaims that the deadline for amending the pleadings passed while defendants were refusing to\n\nprovide discovery. As a result of this conduct, the discovery deadline was stayed, and even after\n\nthis, it took months for defendants to provide the necessary discovery. Thus, according to\n\nplaintiff, the timing of the new claim is more due to defendants' dilatory conduct rather than any\n\nlack of diligence on plaintiff's part.\" Id. at 186. The court rejected the plaintiff's argument. It\n\nnoted that \"Plaintiff at no point during the discovery dispute asked for an extension of the\n\namending deadline, or a stay of the same after the discovery deadline was stayed. If plaintiff truly\n\nhad in mind a new cause of action, [] there is simply no plausible reason why such an extension or\n\nstay was not sought.\" Id. The same conclusion was appropriately reached by Magistrate Judge\n\nLovric in this case.\n\n Defendant distinguishes the case by arguing that it explicitly notified Magistrate Judge\n\nLovric that it \"may [] seek summary judgment on the issues of personal jurisdiction and venue.\"\n\nDkt. No. 129 at 10 (quoting Dkt. No. 45 at 3). That was on March 8, 2024, prior to Magistrate\n\nJudge Lovric entering the UPSO. See Dkt. Nos. 45, 47. Defendant contends that on April 30,\n\n2024, it informed Magistrate Judge Lovric that Plaintiff had not produced any documents and\n\nthey were engaging in discussions about the discovery disputes. See Dkt. No. 129 at 10-11.\n\nHowever, Defendant never specified what the disputes were regarding. See Dkt. No. 66. Nor did\n\nDefendant reassert an intent to file a venue motion. See id.\n\n Defendant states that it \"promptly brough a motion to compel when the parties' substantial\n\nconferral efforts failed.\" Dkt. No. 129 at 11. Defendant contends that \"[i]n that motion, Meta\n\nadvised the Magistrate once again that Meta might seek transfer should discovery from Plaintiffs\n\nreveal a basis to do so.\" Id. However, Defendant filed its motion to compel on June 13, 2024.\n\n\n\n 24\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 25 of 26\n\n\n\nSee Dkt. No. 79. The venue motion deadline was May 14, 2024. Defendant does not explain,\n\nwhy, between April 30 and June 13, it did not contact the Court to ask to modify the venue\n\nmotion deadline. Insofar as Defendant repeatedly argues that it thought it could not seek such a\n\nmodification prior to the deadline expiring, see Dkt. No. 129 at 5, 8-11, the deadline expired a\n\nmonth before Defendant filed its motion to compel. Defendant provides no justification for why\n\nit did not ask the Court to extend the venue motion deadline after the deadline had expired and\n\nwhile it was composing and waiting for a decision on its motion to compel. See Dkt. No. 109,\n\n129.\n\n Defendant contends that it \"repeatedly inform[ed] the Magistrate of [its] efforts\" to\n\ndiligently pursue forum-selection clause discovery. Dkt. No. 129 at 9. The Court can only\n\ndiscern two such moments: (1) in Defendant's answer filed on February 16, 2024, wherein\n\nDefendant alleged an improper venue affirmative defense; and (2) in Defendant's March 8, 2024,\n\ncivil case management plan. See Dkt. Nos. 43, 45. However, in Defendant's April 30, 2024,\n\nstatus report, it explicitly stated that \"[i]f the parties cannot resolve any outstanding disputes,\n\nMeta will bring them to the Court's attention. Other than this potential motion to compel, no\n\nfurther motion practice is expected at this time.\" Dkt. No. 66 at 2. The Court sees no filing\n\nwherein Defendant informed or reminded Magistrate Judge Lovric of its intention to file a venue\n\nmotion after Magistrate Judge Lovric set the venue motion deadline on March 15, 2024. See Dkt.\n\nNo. 47. Even in its motions to compel, Defendant argued that venue \"remains a live issue in this\n\ncase,\" but it stated nothing about an intention to potentially file a venue motion based on what it\n\nlearned through discovery. Dkt. No. 79 at 4. Defendant asserted that \"Judge D'Agostino's pre-\n\ndiscovery ruling denying Meta's motion to transfer cannot be read to remove the venue issue from\n\n\n\n\n 25\n\f Case 5:22-cv-01305-MAD-ML Document 174 Filed 10/21/24 Page 26 of 26\n\n\n\nthe case permanently,\" but Defendant stated nothing about seeking reconsideration of that pre-\n\ndiscovery ruling. Id. Defendant did not acknowledge the venue motion deadline. See id.\n\n Defendant has not provided any compelling justification sufficient to establish good cause\n\nfor why it did not seek an extension of the venue motion deadline. Without such justification, and\n\nbecause there is legal authority supporting Magistrate Judge Lovric's decisions, the Court finds no\n\nclear error in Magistrate Judge Lovric's Orders.\n\n V. CONCLUSION\n\n After careful review of the record, the parties' submissions, and the applicable law, the\n\nCourt hereby\n\n ORDERS that Defendant's appeal of Magistrate Judge Lovric's discovery Orders as\n\noutlined in this Memorandum-Decision and Order (Dkt. No. 109) is DENIED; and the Court\n\nfurther\n\n ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision\n\nand Order on the parties in accordance with the Local Rules.\n\nIT IS SO ORDERED.\n\nDated: October 21, 2024\n Albany, New York\n\n\n\n\n 26\n\f","ocr_status":2,"date_upload":"2024-10-21T11:42:33.376949-07:00","document_number":"174","attachment_number":null,"pacer_doc_id":"12507058743","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Appeal of Magistrate Judge Decision to District Court","acms_document_guid":""}],"date_created":"2024-10-21T11:42:31.903232-07:00","date_modified":"2024-10-25T05:38:30.543385-07:00","date_filed":"2024-10-21","time_filed":"14:30:50","entry_number":174,"recap_sequence_number":"2024-10-21.001","pacer_sequence_number":533,"description":"MEMORANDUM - DECISION AND ORDER: IT IS ORDERED that Defendant's appeal of Magistrate Judge Lovric's discovery Orders as outlined in this Memorandum-Decision and Order (Dkt. No. [109]) is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 10/21/2024. 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Response to Motion due by 11/4/2024 (Attachments: # (1) Exhibit(s) 1 - Plaintiffs' Fourth Set of RFPs, # (2) Exhibit(s) 2 - Meta's Responses and Objections to Plaintiffs' Fourth Set of RFPs, # (3) Exhibit(s) 3 - Emails Between Counsel, dated Sep. 26, 2024 through Oct. 14, 2024, # (4) Exhibit(s) 4 - Emails Between Counsel, dated Sep. 24, 2024 through Oct. 3, 2024, # (5) Exhibit(s) 5 - Plaintiffs' First Set of RFPs, # (6) Exhibit(s) 6 - Meta's Responses and Objections to Plaintiffs' First Set of RFPs, # (7) Exhibit(s) 7 - Plaintiffs' Third Set of RFPs, # (8) Exhibit(s) 8 - Meta's Responses and Objections to Plaintiffs' Third Set of RFPs) Motions referred to Miroslav Lovric. (Orgel, Jacob)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=66616713&page_size=40"}