Kassaw v. Wal-mart Corporation

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Beedemariam Kassaw,
Plaintiff,
v.
Wal-mart Corporation,1
Defendant.
DECISION and ORDER
23-cv-6181-EAW-MJP
INTRODUCTION
Pedersen, M.J. Plaintiff pro se Beedemariam Kassaw asks the
Court to extend the time for motions to compel. (ECF No. 43, Apr. 29,
2025.) Defendant Walmart Corporation opposes. (ECF No. 45, May 6,
2025.) For the reasons that follow, the Court DENIES Plaintiff ’s motion
with prejudice.
BACKGROUND
Plaintiff Beedemariam Kassaw sued Defendant Walmart Corpo-
ration in New York State Supreme Court, Monroe County, alleging that
Walmart
• 	subjected him to a “[d]iscriminatory and retaliatory work
environment,” (Compl., ECF No. 2-1 ¶¶ 8, 12–15, 17),
• 	failed to pay him “[w]ages and bonuses,” (id. ¶¶ 18–21),
1 Walmart points out in its Notice of Removal that it has been incor-
rectly sued as “Wal-Mart.” (Not. of Removal at 1, ECF No. 1, Mar. 29, 2023.)
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• 	wrongfully denied him a promotion, (id. ¶¶ 22–26),
• 	and wrongfully terminated him, (id. ¶¶ 29–39.)
Kassaw does not specify, but the Court liberally construes his complaint
as raising both federal and state law claims. (See generally Compl., ECF
No. 1-2; see also Def.’s Not. of Removal ¶ 6, ECF No. 1.) Defendant re-
moved this case. (Not. of Removal, ECF No. 1, Mar. 29, 2023.) I assume
familiarity with the procedural history since Defendant’s removal of this
case. Further, I note that the parties agreed to rest on letter briefing
during a hearing before me on May 14, 2025. I accordingly find that
Plaintiff ’s motion for an extension is fully briefed and ready for my de-
cision.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 16(b)(4), the Court’s sched-
uling order shall not be modified except upon a showing of good cause.
Holmes v. Grubman, 568 F.3d 329, 334–35 (2d Cir. 2009). Good cause
“depends on the diligence of the moving party.” Parker v. Columbia Pic-
tures Indus., 204 F.3d 326, 340 (2d Cir. 2000). In other words, the mo-
vant must show that, “despite its having exercised diligence, the appli-
cable deadline could not have been reasonably met.” Perfect Pearl Co. v.
Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012)
(quotation omitted). The party asking for a deadline extension bears the
applicable burden: “The burden of showing diligence rests on the moving
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party.” Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 304
F.R.D. 170, 175 (S.D.N.Y. 2014) (citing Parker, 204 F.3d at 340).
For good cause under Rule 16(b)(4), the Court may afford pro se
litigants some “leniency.” Case v. Clivilles, No. 12-CV-8122 (TPG), 2016
WL 5818577, at *3 (S.D.N.Y. Oct. 4, 2016) (citing Tracy v. Freshwater,
623 F.3d 90, 101 (2d Cir. 2010)). But this should not completely excuse
an unrepresented party from having to show good cause. See Murrell v.
Williams, No. 6:22-CV-06019 EAW, 2025 WL 833076, at *2 (W.D.N.Y.
Feb. 3, 2025) (“While Plaintiff is entitled to additional solicitude from
the Court because of his pro se status, that status ‘does not function as
a substitute for an actual showing of good cause.’” (quoting Morales v.
Mackenzie, No. 5:17-CV-124, 2021 WL 1018614, at *2 (D. Vt. Mar. 17,
2021))). Accordingly, denying such a request from an unrepresented lit-
igant is not inherently an abuse of discretion. See, e.g., Smith v. New
York City Dep’t of Education, 524 Fed. App’x 730, 733 (2d Cir. 2013); see
also Essani v. Earley, No. 13CV3424JMASIL, 2018 WL 3785109, at *7
(E.D.N.Y. Aug. 9, 2018), report and recommendation adopted, No.
13CV3424JMASIL, 2018 WL 4100483 (E.D.N.Y. Aug. 28, 2018); Case,
2016 WL 5818577, at *4.
DISCUSSION
Courts decline to find good cause because of a lack of diligence if
the party “knew, or should have known” steps it needed to take “in ad-
vance of the deadline sought to be extended.” Smith v. Bradt, 329 F.R.D.
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500, 505 (W.D.N.Y. 2019). Under this standard, I find that Plaintiff has
failed to show good cause to extend the motion to compel deadline. My
scheduling order put Plaintiff on notice that “[t]he Court will deny any
extension request that fails to show diligence.” (2d Am. Scheduling Or-
der ¶ 7(b), ECF No. 34, Dec. 4, 2024.) Setting aside that Plaintiff may
need an extension of the discovery deadline,2 I fail to see good cause in
Plaintiff ’s request for an extension of the time to file a motion to compel.
Here, I advised Plaintiff that he needed to bring any motion to
compel by April 21, 2025. My order was unambiguous in directing Plain-
tiff to move to compel: “Based on the conference held before the under-
signed held on March 26, 2025, the Court will permit Plaintiff pro se to
2 Plaintiff may have needed to move to extend discovery deadlines in
this case. The weight of authority in this District establishes that when service
of new requests is within 30 days of the close of discovery, such requests are
untimely and thus not susceptible to a motion to compel. See, e.g., Cardew v.
New York State Dep't of Corr. & Cmty. Supervision, 743 F. Supp. 3d 523, 527
(W.D.N.Y. 2024) (noting that this Circuit’s “weight of authority establishes
that when service of new requests is within 30 days of the close of discovery,
those requests are untimely”); Siemens Indus., Inc. v. Great Midwest Ins. Co.,
No. 1:23-CV-05046 (JHR) (SDA), 2024 WL 3305602, at *3 (S.D.N.Y. June 4,
2024) (“Failure to serve discovery requests within the time prescribed for re-
sponses is sufficient to deny those requests as untimely.”); Joye v. Psch, Inc.,
No. 14CIV3809ATHBP, 2016 WL 3141659, at *4 (S.D.N.Y. June 3, 2016) (col-
lecting cases); Pullano v. UBS/Paine Webber, Inc., No. 03-CV-6313, 2007 WL
9779148, at *4 (W.D.N.Y. Mar. 21, 2007) (“Finally, plaintiff’s motion to compel
responses to his First Set of Interrogatories is also denied. Rule 33(b)(3) allows
a party thirty days to respond to interrogatories, however, plaintiff’s interrog-
atories were untimely served less than one month prior to the discovery dead-
line.”). To the extent that Plaintiff now asks for discovery “that he had not
previously sought,” I find that he cannot move to compel such discovery. (Def.
Letter at 1, ECF No. 41, Apr. 28, 2025.)
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move to compel by April 21, 2025, if he believes there is a basis for such
a motion.” (Text Order, ECF No. 39, Mar. 28, 2025.)
Yet Plaintiff states that he “was led to believe that the opposing
counsel would file for [sic] motion to compel and the opposing counsel
had been taking the lead.” (Letter Mot. at 1, ECF No. 43.) Again, this is
not what my earlier order stated. (ECF No. 39.) I was clear with Plaintiff
during earlier conferences and in my text order that Plaintiff needed to
move to compel. I do not find Plaintiff ’s assertion in this regard credible,
in any event, because as Defendant correctly points out, Plaintiff
reached out to my Chambers about a template motion to compel sug-
gesting that Plaintiff knew he needed to move to compel or take some
action 	(request 	an 	extension, 	e.g.) 	by 	April 	21. 	(Email 	from
Beedemariam Kassaw, Plantiff pro se, to the Court (Apr. 11, 2025, 8:26
AM) attached as Ex. A, ECF No. 46, May 6, 2025.) On this record, I con-
clude that Plaintiff could have complied with the deadline for motions to
compel and thus fails to show diligence. See Cardew, 743 F. Supp. 3d at
527 (“Good cause exists where the moving party is unable to comply with
a required deadline despite the exercise of due diligence.”) Indeed, Plain-
tiff voluntarily left town to officiate a soccer tournament. (Letter Mot. at
2, ECF No. 43.)
Separately, I find that Plaintiff “had ample time in which to pur-
sue the discovery that [he] now” seeks. Id. (quoting Burlington Coat
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Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 927 (2d Cir.
1985)); see also Rouviere v. DePuy Orthopaedics, Inc., 560 F. Supp. 3d
774, 793 (S.D.N.Y. 2021), aff’d sub nom. Rouviere v. Howmedica Osteon-
ics Corp., No. 22-3205, 2024 WL 1478577 (2d Cir. Apr. 5, 2024). A party
cannot demonstrate diligence where it could have (and should have) re-
quested discovery long ago. On this alternative basis, I likewise find that
Plaintiff ’s motion to compel discovery should be denied.
CONCLUSION
For these reasons, Plaintiff ’s letter motion to extend the deadline
for motions to compel is DENIED with prejudice. Any appeal of this
decision and order must be taken pursuant to Fed. R. Civ. P. 72(a).
IT IS SO ORDERED.
Dated: 	May 21, 2025
Rochester, NY 	/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge
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