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Kendle v. Whig Enterprises, LLC

United States District Court, S.D. Ohio, Eastern Division

June 7, 2017

JOHN F. KENDLE, Plaintiff,
v.
WHIG ENTERPRISES, LLC, et al., Defendants.

          Judge George C. Smith

          OPINION AND ORDER

          KFMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs Motion for Leave to Amend Complaint (Doc. 81) and Plaintiffs Motion for Court Order Related to Documents Seized by the Federal Bureau of Investigation ("FBI"). (Doc. 99). For the reasons that follow, Plaintiffs Motion for Leave to Amend Complaint (Doc. 81) is GRANTED IN PART and DENIED IN PART, and Plaintiffs Motion for Court Order (Doc. 99) is DENIED.

         I. BACKGROUND

         Plaintiff filed his original Complaint on April 15, 2015, alleging breach of contract, unjust enrichment, and tortious interference with contractual and business relationships against WHIG Enterprises, LLC ("WHIG"), and its affiliates and members. (Doc. 1). m addition to WHIG, Plaintiff named as Defendants WHIG's owners and members Chad Barrett and David Jason Rutland, and WHIG affiliate Rx Pro Mississippi, Inc. ("Rx Pro"). (Id. at ¶¶ 1-7).

         The same month that Plaintiff filed his Complaint, Mr. Barrett and Mr. Rutland divided their business interests. (See Doc. 39 at 4; Doc. 39-2 at 2). Mr. Barrett retained interest in, inter alia, WHIG and Rx Pro, and Mr. Rutland retained interest in World Health Industries, Inc. ("World Health") and "a number of other entities." (Doc. 39 at 4). Plaintiff claims that he was unaware of the split until November 2015 (Doc. 35 at 9; Doc. 35-1, PAGEID #: 282), after he had filed an Amended Complaint on June 10, 2015. (Doc. 10).

         The Court held a preliminary pretrial conference on July 15, 2015, making the amendment deadline October 31, 2015, the discovery deadline June 1, 2016, and the dispositive motion deadline July 1, 2016. (Doc. 18 at 2-3). In January 2016, WHIG, Rx Pro, and Mr. Barrett informed Plaintiff and this Court that, if any information relevant to dealings with Plaintiff existed, Mr. Rutland retained possession, custody, and control. (Doc. 39 at 4, 6; see also Doc. 39-2 at 2).

         On April 21, 2016, the Court granted a joint motion to extend the scheduling order, making the discovery deadline September 1, 2016, and the dispositive motion deadline October 1, 2016. (Doc. 53). By this point, the deadline for amending the pleadings had long past, and no party asked the Court for additional time for leave to amend.

         On July 22, 2016, Mr. Rutland responded to Plaintiffs request for discovery as follows:

Defendant Rutland does not have custody or control over any records of any such conversations or correspondence. All of Defendant's computer, servers, hard files, cell phones and other items were seized by the Federal Bureau of Investigations earlier this year and the same remain in the FBI's possession.

(Doc. 65-1, PAGEID #: 588). It appears that the FBI seized the documents, computers, and servers in or around January 2016. (See Doc. 81-2). Although it is unclear when Plaintiff learned of the seizure, the first mention of it on the docket is July 22, 2016.

         Due to the FBI's seizure of documents, Plaintiff sought yet another extension of the case schedule (Doc. 65), which the Court granted on August 19, 2016. (Doc. 66). Again, no party asked for additional time for leave to amend. The Court granted the motion and extended the discovery deadline until December 30, 2016, and the dispositive motion deadline until January 31, 2017. (Id). In the same Order, the Court stated that "[n]o further extensions [would] be granted." (Id).

         Two days before the discovery deadline, on December 28, 2016, Plaintiff filed a Motion for leave to amend the Complaint a second time to (1) add World Health as a defendant; (2) bring a newly-discovered claim for spoliation; and (3) add piercing the corporate veil as an additional basis for liability against Mr. Barrett and Mr. Rutland. (Doc. 81 at 1). WHIG, Mr. Barrett, and Rx Pro opposed the Motion (Doc. 88), and Plaintiff replied. (Doc. 95). In a January 3, 2017 status conference, the Court vacated the discovery and dispositive motions deadlines as a result of the Motion and based upon representations that the information sought remained in the FBI's possession. (Doc. 85).

         After working to retrieve the documents from the FBI, Plaintiff filed a Motion for Court Order Related to Documents Seized by the FBI on February 27, 2017. (Doc. 99). Since that time, the Undersigned has undertaken repeated efforts over the last ten months to facilitate production of the documents, including considering motions for extensions and conducting numerous status conferences. (See, e.g., Doc. 66, 69-73, 75-76, 82-85, 99, 109-11). In the most recent update on June 2, 2017, the parties informed the Court that an Assistant United States Attorney confirmed that the ...


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