Purugganan v. AFC Franchising, LLC

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF CONNECTICUT                              

DANILO PURUGGANAN,                 :                                      
                              :                                      
Plaintiff,                    :                                      
                              :                                      
v.                            :    CASE NO. 3:20cv360(KAD)           
                              :                                      
AFC FRANCHISING, LLC,              :                                      
                              :                                      
Defendant.                    :                                      


               RULING ON PENDING MOTIONS                             


Pending before the court is Defendant AFC Franchising,               
LLC’s (“AFC”) Motion to Reopen Discovery for a limited purpose            
(Dkt. #252) and Plaintiff’s Motion to compel supplemental                 
discovery (Dkt. #266).  For the reasons that follow, defendant’s          
motion is GRANTED and plaintiff’s motion is DENIED.                       
Legal Standard                                                       
Rule 26(b)(1) of the Federal Rules of Civil Procedure                
provides that                                                             
[p]arties   may   obtain   discovery   regarding    any              
nonprivileged  matter  that  is  relevant  to  any  party's          
claim or defense and proportional to the needs of the                
case, considering the importance of the issues at stake              
in the action, the amount in controversy, the parties'               
relative access to relevant information, the parties'                
resources, the importance of the discovery in resolving              
the issues, and whether the burden or expense of the                 
proposed  discovery   outweighs  its  likely   benefit.              
Information within this scope of discovery need not be               
admissible in evidence to be discoverable.                           
“Discovery under the Federal Rules of Civil Procedure is a           
conditional and carefully circumscribed process.” Bagley v. Yale          
Univ., 

315 F.R.D. 131, 144

 (D. Conn. 2016), as amended (June 15,          
2016). “A party seeking to reopen discovery bears the burden of           
establishing good cause and discovery should not be extended              
when there was ample opportunity to pursue the evidence during            

discovery.” Spencer v. Int'l Shoppes, Inc., No. CV 06-2637 AKT,           

2011 WL 3625582

, at *1 (E.D.N.Y. Aug. 16, 2011.)                          
When determining whether to reopen discovery, Courts will            
consider a variety of factors, specifically:                              
1) whether trial is imminent, 2) whether the request is              
opposed,  3)  whether  the  non-moving  party  would  be             
prejudiced, 4) whether the moving party was diligent in              
obtaining discovery within the guidelines established by             
the  court,  5)  the  foreseeability  of  the  need  for             
additional discovery in light of the time allowed for                
discovery by the district court, and 6) the likelihood               
that the discovery will lead to relevant evidence.                   

Id. at *2.                                                                
Put even more simply, “[a] finding of good cause depends on          
the diligence of the moving party.”  Namin v. Broadridge Fin.             
Sols., Inc., No. 3:22-CV-749 (RNC), 

2023 WL 10802679

, at *1 (D.           
Conn. July 17, 2023.)                                                     
Discussion                                                           
A. AFC’s Motion to Re-open Discovery on a Limited Basis              
Plaintiff, Danilo Purugganan, is the former owner of a               
Master Development Agreement (“MDA”) which was entered into with          
                           2                                         
Doctors Express.  Defendant, AFC Franchising, purchased the               
assets of Doctors Express, including taking the assignment of             
plaintiff’s MDA.  Plaintiff, following the acquisition by AFC,            
filed this lawsuit arguing that AFC violated plaintiff’s MDA by           
operating corporate owned urgent care facilities in plaintiff’s           
territory.  Plaintiff alleged that the MDA granted him an                 

exclusive right to operate such facilities in the assigned                
territory.                                                                
Discovery in this matter closed on November 30, 2021. (Dkt.          
#177.) AFC indicates in its motion that after the close of                
discovery, AFC uncovered information that appears to indicate             
that the plaintiff and other Master Developers had worked                 
together “to fund and bring [the] litigation against AFC, in an           
effort to achieve business leverage by draining AFC’s                     
resources.”  (Dkt. #252 at 2.)  AFC alleges that the group of             
Master Developers funded the litigation, with a belief that               
protracted and costly litigation ending in plaintiff’s favor was          

beneficial to all of the Master Developers.  Further, AFC                 
alleges that the Master Developers were kept abreast of the               
ongoing litigation and that plaintiff’s counsel supplied legal            
documents to the group, which AFC alleges may have been marked            
as confidential under a protective order entered in this case.            
(Dkt. # 252 at 5.)                                                        
                           3                                         
Considering this newly uncovered information, AFC argues             
that it should be permitted to reopen discovery for the limited           
purpose of obtaining discovery related to the Master Developer            
group and its funding mechanism.  AFC specifically argues that            
the new information is relevant to the case for a number of               
reasons.  First, that the MDA contained provisions which                  

prohibited plaintiff from harming AFC’s goodwill, or from being           
engaged in any unethical or dishonest conduct, which AFC argues           
the group of Master Developers was trying to do in funding and            
protracting this litigation.  AFC argues this would potentially           
provide defenses to AFC that AFC was unable to pursue in light            
of the information being withheld.  (Dkt. #252 at 11.)  Second,           
plaintiff seeks attorney’s fees in this litigation.  AFC argues           
that plaintiff’s fees have been paid by the group of Master               
Developers and that any award of fees would thus result in a              
windfall to plaintiff. (Dkt. #252 at 11-12.)  Additionally, AFC           
argues that plaintiff may have violated the protective order;             

that the information is relevant to AFC’s own counterclaim to             
recover costs and fees, which have allegedly been amplified; and          
because the other Master Developers have an interest in the               
financial recovery as there is a question as to whether the               
other Master Developers will share in any recovery that                   
plaintiff receives.  (Dkt. #252 at 12.)                                   
                           4                                         
Plaintiff objects to the motion to reopen discovery on a             
number of grounds, primarily: (1) the defendants knew of, but             
failed to raise this issue in October of 2020, (2) the plaintiff          
was not privy to the communication and the only people involved           
in the communications that were withheld are non-parties, (3)             
the defendant should have uncovered the emails during its                 

responses to plaintiff’s discovery requests, and (4) that this            
is a gateway motion to delve further into the issues related to           
venue.                                                                    
A. Whether the Plaintiffs Have Established Good Cause for            
  Reopening Discovery                                                

As stated earlier, in making this determination, the Court           
should evaluate a number of factors.                                      
          1. Imminence of trial                                      
AFC filed the motion to reopen discovery in January of               
2024. (Dkt. #252.)  Trial in this matter is currently scheduled           
for November 2024.  AFC’s motion was filed well in advance of             
trial and a reasonable amount of time following AFC’s discovery           
of the emails at issue in this motion.  The Court does not                
believe that this factor weighs heavily in either party’s favor.          
Additionally, given the discussion of other factors, this factor          
does not carry much weight in this matter.                                


                           5                                         
          2. Whether the request is opposed                          
The motion to reopen discovery is opposed in this case.              
(Dkt. #255). As discussed above, plaintiff raises a variety of            
objections to this request.  Notably, plaintiff argues that AFC           
failed to raise this issue with the Court in October of 2020,             
that AFC should have located the emails, that plaintiff was not           

privy to the emails, and that this is a gateway to other                  
discovery related to the issue of venue.                                  
          3. Whether the non-moving party would suffer               
            prejudice                                                
The Court finds that the non-moving party, the plaintiff,            
would not suffer prejudice if the Court grants the motion to              
reopen discovery for the limited purpose of allowing discovery            
related to the funding mechanism.  It appears that these emails           
are likely easily obtained and given that some of the emails may          
exist outside the email system of AFC, plaintiff and his counsel          
are the individuals who are most equipped to locate and produce           

any responsive emails.                                                    
          4. Whether the need for this discovery was                 
            foreseeable                                              

The need for this discovery was clearly foreseeable to               
plaintiff.  As an initial matter, it does appear that AFC tried           
to explore these issues during discovery and the plaintiff’s              
responses were, at best, not completely accurate. AFC served              
                           6                                         
discovery requests on the plaintiff which inquired about this             
topic (i.e., Interrog. #14, Req. for Prod. #3, #4, and #5).               
(Dkt. #252 at 6.)  Further, as shown by the excerpts from                 
plaintiff’s deposition, including the quote from the objection            
that plaintiff’s counsel made, it is clear that AFC attempted to          
delve into these very topics during plaintiff’s deposition.               

(Dkt. #252 at 6-10; dkt. #252-2 at 3-14; and dkt. #255 at 4-              
6.)  Plaintiff’s responses to the various discovery requests              
were not accurate and he did not produce the e-mails in                   
question, despite the fact that the e-mails appear to be                  
responsive to some of AFC’s discovery requests.                           
Further, as argued in AFC’s response to plaintiff’s                  
opposition, plaintiff always has a duty to supplement his                 
discovery responses.1  AFC was not required to assume that                
plaintiff’s discovery responses were inaccurate or incomplete             
such that AFC was obligated to conduct a random search of AFC’s           
computer system in order to determine if plaintiff’s discovery            

responses were accurate or complete.                                      
Further, the Court notes that AFC has provided a reasonable          
explanation for not having located the emails on its own.                 


1 Plaintiff argues that he and his wife are not part of and are not copied on 
the messages. (Dkt. #255 at 7.) However, based on the reasons articulated in 
AFC’s brief (dkt. #257 at 3-4) the Court cannot make such a factual       
determination in this instance.                                           
                           7                                         
Notably, the emails were only discovered after a former                   
franchisee and MDA holder, Timothy Groves, ended his                      
relationship with AFC and made a request to have post                     
termination access to his former e-mail account at AFC.  This             
request prompted AFC to search Mr. Groves’ e-mail account at AFC          
for any unusual activity. (Dkt. #252-1 at 1-2.)  During the               

course of that search, AFC located some of the emails at issue.           
(Id.)  In contrast, the court finds that the plaintiff, at the            
very latest, foresaw the need for the requested information when          
the defendant asked about it during plaintiff’s deposition or             
when plaintiff was served with the aforementioned discovery               
requests.                                                                 
          5. Whether the discovery is likely to lead to              
            relevant evidence                                        

The information requested here is likely to lead to                  
potentially relevant evidence.  First, and quite clearly, any             
information about the Master Developers’ alleged scheme is                
highly relevant to any future damages determination or attorney           
fee calculation.  Additionally, in this instance, the alleged             
scheme to litigate in order to hurt AFC financially appears to            
pre-date AFC’s termination of plaintiff’s Master Developer                
Agreement.  Plaintiff’s MDA required him to refrain from                  
engaging in any activity which might injure AFC’s goodwill and            
provided that plaintiff could immediately be terminated if he             
                           8                                         
engaged in any dishonest or unethical conduct which, in AFC’s             
opinion, would adversely affect AFC’s reputation or                       
goodwill.  See Dkt. #252 at 11 (quoting MDA Section 16.2(e))              
Further, plaintiff’s alleged misconduct would also be                
relevant to plaintiff’s request for equitable relief.  Mona v.            
Mona Elec. Group, 

176 Md. App. 672, 713

 (2017).  Finally, the e-          

mails that AFC has quoted in its brief appear to suggest that             
documents from this case may have been shared with the other              
Master Developers.  Given that there is a judicially imposed              
protective order in this case, if a violation indeed occurred,            
it would certainly be of great interest to the court.                     
For these reasons, the Court agrees with AFC that further            
discovery on this issue is relevant and likely to uncover                 
relevant evidence.  Therefore, AFC’s motion to re-open discovery          
on a limited basis is granted.                                            
B. Plaintiff’s Motion to Compel                                      
Plaintiff has filed a motion to compel supplemental                  

discovery related to a previously served request for production.          
(Dkt. #266-1.)  Specifically, plaintiff sought, and was provided          
with “AFC’s reports or spreadsheets showing the revenue from              
each of the franchisees in Plaintiff’s Master Territory for the           
period of December 2020 through October 2021.” (Dkt. #266-1 at            
4.)  Since the trial has been delayed a number of years,                  
                           9                                         
plaintiff is now seeking to have AFC supplement the information           
that AFC produced earlier by providing plaintiff with updated             
reports or spreadsheets through the present date.  AFC has                
objected to the motion to compel, arguing that plaintiff                  
included a specific end date on the request for production and            
AFC produced complete and accurate information to plaintiff               

through the end date.  Thus, supplementation is not required.             
While under Federal Rule 26(e) a party who has responded to          
a discovery request must supplement “in a timely manner if the            
party learns that in some material respect the disclosure or              
response is incomplete or incorrect, and if the additional or             
corrective information has not otherwise been made known to the           
other parties during the discovery process or in writing. . .”            
Fed. R. Civ. P. 26(e)(1)(A).  Plaintiff’s current interpretation          
“tortures the meaning and purpose of Rule 26(e) to obtain                 
documents that are not within the original scope of h[is]                 
discovery request.” See e.g., McKinney v. Connecticut, No.                

3:06CV2055 WWE, 

2011 WL 166199

, at *2 (D. Conn. Jan. 19, 2011)            
aff'd sub nom. McKinney v. Dep't of Transp., Conn., 

487 Fed. Appx. 605

 (2d Cir. 2012); see also Hnot v. Willis Grp. Holdings           
Ltd., No. 01 CIV. 6558 (GEL), 

2006 WL 2381869

, at *5 (S.D.N.Y.            
Aug. 17, 2006)(where the discovery request at issue requested             
the party to produce information “through December 31, 2001,”             
                          10                                         
the court held that “there is no general duty to produce post-            
2001 database information, for which there was never any                  
enforceable request for production (or corresponding duty to              
disclose) in the first place.”).  As in McKinney and Hnot,                
plaintiff’s request was temporally limited (i.e., “December 2020          
through October 2021.”).  No argument has been made that AFC’s            

responses covering the period between December 2020 through               
October of 2021 were incomplete or otherwise inadequate at the            
time of production.  Where plaintiff limited the discovery                
request to a specific time period, terminating in October of              
2021, the request does not reach any information beyond                   
plaintiff’s chosen end date.                                              
Plaintiff attempts to argue that the language contained in           
the instructions and definitions/rules of construction broaden            
the specifically articulated time period that plaintiff included          
in his discovery request. (Dkt. #266-1 at 4-5.)  Specifically,            
plaintiff cites paragraph nine of the instructions section which          

states that the requests for production are “deemed continuing            
so as to require supplemental answers or responses if further             
information is obtained between the time of the responses hereto          
and the time of trial.”  The Court reads this paragraph to state          
the same general principle as Rule 26(e), if new information              
related to the requested time period (i.e., December 2020                 
                          11                                         
through October 2021) becomes available then the responding               
party is required to supplement the discovery response.                   
Further, plaintiff cites definition four, which states that               
“[t]he time period for which discovery is sought is January 1,            
2017 to the present date.”2  This definition does not rescue              
plaintiff here.  It would be unreasonable to read that clause to          

mean that a discovery request that includes a specific date               
restriction should be interpreted in a manner that ignores the            
date restriction and, instead, implicitly means “through the              
date of trial,” despite the fact that the requesting party did            
not include such language.                                                
Plaintiff’s counsel is experienced, if plaintiff’s counsel           
wanted the discovery request be temporally open ended, plaintiff          
could have included language to that effect or could have                 
refrained from including any end date at all.3  However, counsel          
chose to do the opposite by including a specific end date of              
October of 2021.  Further, plaintiff could have, in the face of           


2 Additionally, as the Honorable Gerard E. Lynch observed in Hnot v. Willis 
Grp. Holdings, Ltd., No. 01 CIV. 6558 (GEL), 

2006 WL 2381869

, at *5 (S.D.N.Y. 
Aug. 17, 2006), “[a] statement referring to ‘the present’ generally does not 
refer to any moment in time beyond when the statement was made.”  Judge Lynch 
further explained that “[][t]he same logic applies to discovery requests; 
thus, a discovery request dated January 16, 2002, for documents extending “to 
the present” only requires production of documents in existence on or before 
January 16, 2002.[] If plaintiffs intend to refer to the future, they must 
use language that makes that clear.” 

Id.

                                  

3 This would enable the responding party to make a timely objection to the 
longer time period if the responding party thinks the additional information 
would not be relevant or would create an undue burden.                    
                          12                                         
delays in this matter, sought to compel supplemental responses            
at earlier times.  However, plaintiff did not.  Therefore,                
plaintiff’s motion to compel is denied.                                   
Conclusion                                                           
The Court has concluded that AFC was sufficiently diligent           
in this instance and the other factors considered do not weigh            

sufficiently in plaintiff’s favor.  Therefore, for the foregoing          
reasons, AFC’s Motion to Reopen discovery for a limited purpose           
is (Dkt. #252) is GRANTED.  Discovery will be reopened for the            
limited purpose articulated in AFC’s motion and will only be              
open for 45 days from the date of this order.  Additionally,              
Plaintiff’s Motion to Compel is DENIED based on the reasons               
articulated in this ruling.                                               

This is not a Recommended Ruling.  This is a discovery               
ruling or order which is reviewable pursuant to the “clearly              
erroneous” statutory standard of review.  

28 U.S.C. § 636

(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. R. 72.2.             
As such, it is an order of the Court unless reversed or modified          
by a district judge upon motion timely made.                              
SO ORDERED this 27th day of August, 2024 at Hartford,                
Connecticut.                                                              
                    _______________/s/____________                   
                    Robert A. Richardson                             
                    United States Magistrate Judge                   

                          13