PATRICIA D. BARKSDALE, Magistrate Judge.
This case involves alleged failures to pay wages and retaliation for complaining about the failures. Because of unusual discovery happenings, the Court entered this order:
Doc. 30 (emphasis in original). This report and recommendation addresses the motion to dismiss, Doc. 22, the additional issues, and the case status.
The plaintiff, Candi Cake, used to work for the defendant, Casual Concepts, Inc., doing business as Iggy's Seafood Shack. Doc. 8 at 1, 2. The other defendants, Ronald LeGrand and John Long, allegedly own and manage the company. Doc. ¶¶ 18, 27.
The case began February 1, 2016, with the filing of the complaint. Doc. 1. Cake alleges the defendants failed to pay overtime wages, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, and regular wages, in violation of the Florida Minimum Wage Act, Fla. Stat. § 448.110, and the FLSA. Doc. 1.
The Court entered its standard track notice and scheduling order for FLSA cases, directing Cake to serve and file answers to court interrogatories, the defendants to serve and file a summary of hours Cake worked during "each relevant work week," and the parties to meet and confer in person in a good faith effort to settle. Doc. 4.
The defendants filed an answer and affirmative defenses, Doc. 5, and an amended answer and affirmative defenses. Doc. 7.
Cake filed answers to the court interrogatories, alleging the following facts. Doc. 8. She worked at Iggy's Seafood Shack from September 17 to December 18, 2015. Doc. 8 at 1-2. LeGrand and Long were her immediate supervisors. Doc. 8 at 1. She had a regular schedule but worked additional hours depending on "how busy the restaurant was and of course how late patrons stayed." Doc. 8 at 1. She was "called an Associate Supervisor or Associate Manager" or "whatever they wanted as the business is not a large formal franchise where official job titles are certain." Doc. 8 at 2. Most of the time, she was "on the floor." Doc. 8 at 2. She described her duties:
Doc. 8 at 2. She understood that her regular wage was $20 an hour. Doc. 8 at 2. She averaged 15 overtime hours a week, totaling 120 overtime hours during her tenure, excluding the partial weeks she worked during her first and last weeks. Doc. 8 at 2. She was paid $20 an hour for all but 8 regular hours worked (for which she was not paid) and nothing for the 120 overtime hours worked. Doc. 8 at 3. She first complained about the alleged violations in November 2015. Doc. 8 at 3. Most complaints were oral, but she is searching for related emails. Doc. 8 at 3. She described the alleged reaction to her complaints:
Doc. 8 at 4. She kept no journal of hours but has corroborating emails and reports. Doc. 8 at 4.
Cake claims $4200 in overtime wages, $4200 in liquidated damages for unpaid overtime wages, $160 in unpaid regular wages (including $58 in minimum wages), $58 in liquidated damages for unpaid minimum wages, attorney's fees, costs, and damages for alleged retaliation. Doc. 8 at 3.
Cake then filed an amended complaint adding a retaliation claim under the FLSA, Doc. 9, and the defendants filed an answer and affirmative defenses, Doc. 12, to that pleading.
The defendants filed a verified statement that Cake had been a salaried employee who had received $20 an hour, $9392.86 in gross pay, and $7918.24 in net pay. Doc. 13, Doc. 14.
A month later, the parties filed status reports notifying the Court they had failed to settle, Docs. 15, 16, and a case management report, Doc. 17, prompting the Court to enter a case management and scheduling order, Doc. 18. The order, entered on July 19, 2016, directed Cake to immediately file a certificate of interested persons and corporate disclosure statement (she has not filed one yet), referred the case to mediation with Gregg Wirtz as the mediator, and established event dates in 2017, including a February 15 discovery deadline, February 28 mediation deadline, March 15 dispositive-motion deadline, and an August trial. Doc. 18 at 1-2.
At that point, the case was on track.
Then the following events occurred. Cake's counsel raises arguments concerning defense counsel's failure to provide deposition dates (events regarding that matter are in white), and their failure to provide mediation dates (events regarding that matter are in light gray). Defense counsel raise arguments concerning the failure of Cake's counsel to respond to interrogatories and requests for production and failure to respond the Court's order compelling responses (events regarding that matter are in dark gray), and setting depositions of LeGrand and Long with insufficient notice (events regarding that issue are in white).
To prepare this report and recommendation, I conducted a hearing on July 7. Doc. 31. A court reporter is preparing a transcript. Less than an hour before the hearing started, Cake's counsel filed the emails regarding his and his assistant's failed efforts to schedule LeGrand's and Long's depositions and the mediation. Doc. 32.
Cake's counsel did not dispute what had occurred but contended both sides had not complied with obligations. He contended while Cake eventually had provided responses to the interrogatories and requests for production, the defendants have provided no discovery to date. Defense counsel contended Cake's counsel was wrong and the defendants have responded to all discovery requests.
Cake's counsel stated he had not acted purposefully and had not viewed as merely aspirational the deadlines or the Court's order directing him to respond to the interrogatories and requests for production. He explained he had been embarrassed about having significant health issues (a first for him) and had worried that publicizing them would allow others to take advantage of him. He stated he had asked his medical provider to omit from her letter to the Court details of more embarrassing health issues. He stated his health has continued to improve and would not be an issue going forward. He added he and defense counsel generally have a good working relationship.
Defense counsel offered a two-page declaration in another case—Tulloch v. District Board of Trustees of Miami Dade College, No. 1:16-cv-24919 (S.D. Fla.)—in which Cake's counsel describes efforts to serve a defendant from December 2016 through February 2017. Defense counsel contended the ability of Cake's counsel to act in that and the other cases provided contradicts the claim by Cake's counsel that he had disabling health issues.
Cake's counsel explained he could participate in the other cases but not respond to the interrogatories and requests for production in this case because his health issues were intermittent, his participation in the other cases had been insignificant (taking only a few hours each), his assistant had handled some of the matters in the other cases but could not have handled the responses in this case, and preparing the responses in this case had been his most burdensome obligation. He agreed moving for an extension of time would have been preferable but explained he had not readily come to terms with his inability to keep up.
Cake's counsel contended requiring him to pay expenses for the motion to compel, the motion to dismiss, or the motion for a protective order was unwarranted because of his health issues, because he had not acted willfully or in bad faith, and because defense counsel had failed to meaningfully confer before filing them, having only emailed despite that email is not the optimal means of communication. Defense counsel responded the parties' usual means of communication had been email and observed they had sent many before moving to compel. He opined a phone call would have been unfruitful considering the failure by Cake's counsel to respond to the motion to compel and failure to respond to the Court's order compelling responses. He could not recall communications about scheduling LeGrand's and Long's depositions but observed Cake had not provided responses by the time she noticed the depositions. He acknowledged defense counsel had not been "without sin" regarding mediation scheduling but rhetorically asked why the defendants would participate in mediation after months of "radio silence" and with a motion to dismiss pending.
Regarding previous settlement efforts, both sides agreed they had been too far apart to settle at the beginning. Cake had demanded more than $20,000 plus attorney's fees, and the defendants had believed her claims lacked merit. Cake's counsel expressed his belief that settlement would be more likely now.
A surprise to the Court, defense counsel presented a "writ of bodily attachment" he had received the day before in connection with the divorce proceedings of Cake's counsel. The writ, signed June 19, 2017, called for the arrest of Cake's counsel upon entering Florida based on failure to pay child support. Defense counsel contended that, based on the writ and the actions (or inactions) of Cake's counsel, Cake's counsel should be disqualified from representing Cake and pay expenses in bringing the motion to compel, motion to dismiss, and motion for a protective order and preparing for the hearing. Cake's counsel stated he had been made aware of the writ recently, believed it would be withdrawn quickly, and opined it should not have been issued in the first place.
I gave Cake's counsel an opportunity to respond in writing to defense counsel's new argument after time to reflect on it and to file under seal any supplemental information concerning his health issues, setting a July 28 deadline. I explained Cake's counsel was not required to file anything but it could bolster his position, adding I was unsure the Court had enough to rule in his favor on all issues on the record as it stood. He indicated he would file something. Defense counsel stated he was hesitant to commit to not disclosing the sealed supplemental information to counsel for the wife of Cake's counsel in the divorce proceedings in light of its potential relevance there and inconsistencies between statements by Cake's counsel in this case and what defense counsel had learned from counsel for the wife. I ordered defense counsel to keep any sealed response confidential and informed him he could move to disclose it if he believed disclosure necessary.
Cake's counsel asked the Court to again refer the case to mediation and allow a 30- to 60-day period for discovery. Defense counsel conceded dismissal was unwarranted because there is no evidence of Cake's involvement in the complained-of conduct and her counsel's conduct does not warrant such an extreme sanction but urged the Court to order Cake's counsel to pay the defendants' expenses in moving to compel, moving to dismiss, moving for a protective order, and preparing for the hearing; order Cake's counsel to withdraw from the case; and, after allowing Cake time to obtain new counsel, enter an amended case management and scheduling order allowing a period of expedited discovery.
Defense counsel acknowledged the defendants had not filed documentation of expenses in moving for a protective order, moving to dismiss, or preparing for the hearing but indicated they could do so quickly, estimating counsel had spent about two hours on the motions and about four hours preparing for the hearing. I permitted the defendants to provide evidence of those expenses after conferring with Cake's counsel about the amount.
Since the hearing, neither side has filed anything.
Federal Rule of Civil Procedure 1 provides that the rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." The addition of "and the parties" places shared "responsibility to employ the rules in the same way." Fed. R. Civ. P. 1, Advisory Comm. Notes (2015 Amend.). "Effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure." Id. Local Rule 3.01(g) provides:
The Middle District Discovery Handbook supplements the Federal Rules of Civil Procedure and Local Rules by capturing discovery custom and practice in this district. Handbook at 2. It "is neither substantive law nor inflexible rule; it is an expression of generally acceptable discovery practice in the Middle District. . . . Judges and attorneys practicing in the Middle District should regard the handbook as highly persuasive in addressing discovery issues." Id.
The Handbook explains, "The term `confer' in [Local] Rule 3.01(g) means a substantive discussion. Counsel must respond promptly to inquiries and communication from opposing counsel. Many potential discovery disputes are resolved (or the differences narrowed or clarified) when counsel confer in good faith. Rule 3.01(g) is strictly enforced." Id. § I.A.2.
The Handbook explains, "Discovery . . . should be practiced with a spirit of cooperation and civility." Id. § I.A.1. In that regard,
Id. §§ I.A.3, I.C.4, II.A.1.
The Handbook emphasizes, "The Federal Rules of Civil Procedure set forth explicit time limits for responding to discovery requests. If unable to answer timely, an attorney should first seek an informal extension of time from counsel propounding the discovery. Counsel in this district typically accommodate reasonable requests for additional time. If unable to informally resolve the matter, counsel should move for an extension of time to respond." Id. § I.E.1. The Handbook adds, "Motions for extension of time within which to respond to discovery should be filed sparingly and only when counsel are unable to informally resolve their disputes. Counsel should be aware that the mere filing of a motion for an extension of time in which to respond does not, absent an order of the Court, extend the deadline for responding to discovery requests." Id. § I.E.2. The Handbook cautions a party's "unexcused failure to comply with [an order compelling discovery] is treated by the Court with special gravity and disfavor." Id. § I.E.3.
If a court grants a motion to compel discovery or for a protective order, "the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses in making the motion, including attorney's fees." Fed. R. Civ. P. 37(a)(5)(A); see also Fed. R. Civ. P. 26(c)(3) ("Rule 37(a)(5) applies to the award of expenses" in connection with a motion for a protective order). "But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). Nondisclosure is substantially justified if reasonable people could differ on its appropriateness. Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997).
If a party "fails to obey an order to provide or permit discovery, . . . the court where the action is pending may issue further just orders." Fed. R. Civ. P. 37(b)(2)(A). A court may enter an order: "(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination." Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). "Instead of or in addition to [those measures], the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(C).
To decide if attorney's fees to address a discovery violation are reasonable, courts have applied the lodestar approach in Hensley v. Eckerhart, 461 U.S. 424 (1983), and Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). See, e.g., Developers Surety & Indem. Co. v. Bi-Tech Constr., Inc., No. 13-22767-CIV-DIMITROULEAS/Snow, 2014 WL 11880995, at *1 (S.D. Fla. Feb.12, 2014) (unpublished); Martin v. Am. Traveler Staffing Prof'ls, LLC, No. 08-80461-Civ, 2008 WL 7863654, at *6 (S.D. Fla. Sept. 9, 2008) (unpublished). Under that approach, a court's "starting point" is a calculation of the lodestar figure, which is "the number of hours reasonably expended . . . multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. To arrive at a reasonable amount, the court then considers other factors that require an adjustment of the lodestar figure. Id. at 433-37.
"[A] lawyer may not be compensated for hours spent on activities for which he would not bill a client of means who was seriously intent on vindicating similar rights, recognizing that in the private sector the economically rational person engages in some cost benefit analysis." Norman, 836 F.2d at 1301.
A "reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Id. at 1299. The relevant legal community is where the case is filed. A.C.L.U. of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999).
"[L]awyers are essential to the primary governmental function of administering justice, and have historically been officers of the courts." Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (internal quotation marks omitted). A court has the "power and responsibility to regulate the conduct of attorneys who practice before it." United States v. Kitchin, 592 F.2d 900, 903 (5th Cir. 1979).
"A motion to disqualify counsel is the proper method for a party-litigant to bring the issues of conflict or breach of ethical duties to the attention of the court." Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 (5th Cir. 1980). A party may also or instead pursue bar disciplinary proceedings or sue for malpractice. Prudential Ins. Co. of Am. v. Anodyne, Inc., 365 F.Supp.2d 1232, 1237 (S.D. Fla. 2005).
A disqualification motion in federal court is governed by local rules and federal common law. Herrmann v. GutterGuard, Inc., 199 F. App'x 745, 752 (11th Cir. 2006). The movant must prove the grounds for disqualification. In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003). If a court bases disqualification on an ethical violation, "the court may not simply rely on a general inherent power to admit and suspend lawyers, without any limit on such power." Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997). Instead, the court must identify a rule and find a violation of the rule. Id.
Because a litigant is presumptively entitled to counsel of his or her choosing, only a compelling reason will justify disqualification. BellSouth, 334 F.3d at 961. Because disqualification is a "harsh sanction, often working substantial hardship on the client," it should be used "sparingly." Norton v. Tallahassee Mem'l Hosp., 689 F.2d 938, 941 n.4 (11th Cir. 1982). And because a disqualification motion may be used to harass or for tactical advantage, it should be viewed with caution. Herrmann, 199 F. App'x at 752.
Disqualification is not mandatory, even if a court finds a lawyer has violated an ethical rule. Prudential, 365 F. Supp. 2d at 1236. Instead, a "court should be conscious of its responsibility to preserve a reasonable balance between the need to ensure ethical conduct on the part of lawyers appearing before it and other social interests, which include the litigant's right to freely chosen counsel." Woods v. Covington Cty. Bank, 537 F.2d 804, 810 (5th Cir. 1976).
In undertaking the balancing, pertinent factors may include the nature of the ethical violation, the age of the case, the prejudice to the parties, the effectiveness of counsel in light of the violation, the public's perception of the profession, and whether the attempt to disqualify is a tactical device or a means of harassment. See Cox v. Am. Cast Iron Pipe Co., 847 F.2d 725, 731-32 (11th Cir. 1988) (considering some of those factors); Arrowpac Inc. v. Sea Star Line, LLC, No. 3:12-CV-1180-J-32JBT, 2013 WL 5460027, at *12 (M.D. Fla. Apr. 30, 2013) (unpublished) (same); Prudential 365 F. Supp. 2d at 1237 (same).
This Court's Local Rules provide that The Rules Regulating The Florida Bar govern members of this Court. Local Rule 2.04(d).
Rule 4-1.1 provides, "A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."
Rule 4-1.3 provides, "A lawyer shall act with reasonable diligence and promptness in representing a client." Similarly, Rule 4-3.2 provides, "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." The comment to the rule states, "Dilatory practices bring the administration of justice into disrepute." Id.
Rule 4-3.3 provides, "A lawyer shall not knowingly . . . (1) make a false statement of fact . . . to a tribunal or fail to correct a false statement of material fact. . . previously made to the tribunal by the lawyer." The comment to the rule states, "[A]n assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry." Id.
Although the defendants originally asked the Court to dismiss the amended complaint based on Cake's failure to respond to the interrogatories and requests for production and otherwise prosecute the case, Doc. 22 at 5-6, they since have effectively withdrawn that request through the concession at the July 7 hearing that dismissal is unwarranted because there is no evidence of Cake's involvement in the complained-of conduct and her counsel's conduct does not warrant that extreme sanction. There is no apparent reason to not accept that concession.
Requiring Cake's counsel to pay expenses in bringing the motion to compel is warranted. His statements concerning health issues, corroborated by his nurse practitioner's statements, are credible. Nevertheless, they do not excuse his failure to request an extension at least during the period when defense counsel repeatedly asked him when they could expect to receive the responses. Reluctance to reveal health issues does not overcome a lawyer's obligation to diligently prosecute a case, and Cake's counsel presents no good reason why the defendants should bear the expense of his own reluctance. While conferring by telephone would have been preferable, the telephone line goes both ways, and the plaintiff's counsel shares responsibility for not using that means of communication to work with opposing counsel to discuss an acceptable path forward. Having done nothing instead was not substantially justified, and the circumstances do not make an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).
Considering the information about defense counsel, see Docs. 26-1, 26-2, and my own knowledge of the local market, the rates charged by them ($378 an hour for Margulies; $207 an hour for Walsh) are the prevailing market rates for similar services by lawyers of reasonably comparable skills, experience, and reputation in Jacksonville and are reasonable, see Norman, 836 F.2d at 1299. Considering the billing records showing no work that was duplicative, clerical, inflated, or otherwise unnecessary, see Doc. 26-3 at 3, the time they spent to prepare the motion to compel (0.6 hours by Margulies; 3 hours by Walsh) is reasonable. Using those figures, the lodestar is $847.80. No factor warranting increasing or decreasing that amount is alleged or apparent.
Requiring Cake's counsel to pay expenses in bringing the motion to dismiss is unwarranted. The defendants filed the motion the business day after Cake's responses to the interrogatories and requests for production were due and since have conceded the primary relief requested (dismissal) is unwarranted because there is no evidence of Cake's involvement in the complained-of conduct and her counsel's conduct does not warrant that extreme sanction.
Requiring Cake's counsel to pay expenses in bringing the motion for a protective order is unwarranted. The motion for a protective order itself was justified for the reasons explained in the order granting it (Cake's counsel unilaterally scheduled the depositions; Cake's counsel did not provide the advance notice required by Federal Rule of Civil Procedure 30(b)(1) and Local Rule 3.02; and LeGrand and Long were unavailable). Nevertheless, requiring Cake's counsel to pay expenses in bringing the motion for a protective order would be unjust considering defense counsel's failure to provide deposition dates in the fall of 2016 despite repeated requests for them and a promise to do so, see Doc. 32-1 at 7 ("We have reached out to Mr. Long and Mr. LeGrand asking for their availability and will let you know as soon as we hear back from them."), and the absence of an attempt to confer beyond a single ultimatum in an email, see Doc. 24-2 at 2 ("If these notices are not canceled by noon on Monday, we will file a motion for protective order and bring these issues to the Court's attention."). To the extent the failure to provide deposition dates in the fall of 2016 was due to Cake's failure to provide responses to interrogatories and requests for production, this Court does not condone a "tit for tat" approach to discovery.
Requiring Cake's counsel to pay expenses in preparing for the July 7 hearing is unwarranted. Neither side has proceeded in the manner Rule 1 and the Handbook envision, evidenced by the emails about the responses to the interrogatories and requests for production, the emails about setting depositions for LeGrand and Long, and the emails about scheduling the mediation. A hearing on expenses for the motion to compel alone would have been unnecessary given the Court's expressed intent to grant it, a hearing on the other motions would have been unnecessary if a mediation had been scheduled and successful, and the reasons for not requiring Cake's counsel to pay expenses in bringing the motions to dismiss and for a protective order should be the same reasons for not requiring Cake's counsel to pay expenses in preparing for a hearing on them.
Recognizing Cake's entitlement to counsel of her own choosing and the circumstances, requiring her counsel to withdraw is unwarranted. To support the oral request to require Cake's counsel to withdraw, defense counsel points to (1) the writ of bodily attachment that would permit arrest of Cake's counsel if he entered Florida and therefore inhibit his ability to prosecute the case; (2) asserted bad-faith representations by Cake's counsel about his inability to prosecute the case; and (3) the apparent inability of Cake's counsel to comply with obligations in the case. Implicated are the ethical rules requiring counsel to provide competent representation, act with diligence, and maintain candor with the Court. See Rules 4-1.1, 4-1.3, 4-3.2, and 4-3.3 of The Rules Regulating The Florida Bar.
Cake's counsel attended the July 7 hearing by telephone after issuance of the writ of bodily attachment. If it prevents him from attending any in-person proceeding in this case or affects his bar license, he will have to request permission or be forced to withdraw. For now, it has not, and it is unclear whether it remains or will remain in effect.
The representations by Cake's counsel do not appear to have been made in bad faith. It is undisputed he actively prosecuted the case in the beginning, see, e.g., Docs. 1, 2, 3, 8, 9, 10, 16, 17, has health issues of an intermittent character that his primary care provider opined rendered him unable to work in early February when the Court had ordered him to act, see Doc. 28-1, and has been involved in what appear to be contentious and lengthy divorce proceedings, see Doc. 29-6. That this case unraveled because of health and perhaps other personal issues is not inconsistent with an ability to participate in a relatively small way in a handful or so of other cases over a six-month period.
The health issues are in the open now, the primary care provider for Cake's counsel is hopeful a medication change will enable him to resume normal work, he believes he can resume normal work, he appeared to take his failures seriously at the July 7 hearing, there is no record in this Court of previous disciplinary measures against him,
Although requiring Cake's counsel to withdraw is unwarranted at this time, a warning to him is warranted; specifically, any unexcused delay in responding to emails, providing discovery, or complying with deadlines may result in an order requiring him to withdraw.
To get the case back on track, and considering the parties' agreement that a brief discovery period is necessary, entry of an amended case management and scheduling order with these recommended provisions is warranted:
I recommend:
