DECISION & ORDER On November 10, 2016, the plaintiff, Laurie Ann Smith, individually and as administratrix of the estate of Thomas J. Blancke, Sr., commenced this action under 42 U.S.C. §1983.1 Docket Item 1. This Court then referred the case to United States Magistrate Judge Leslie G. Foschio for all proceedings under 28 U.S.C. §636(b)(1)(A) and (B). Docket Items 12, 28. On August 9, 2017, Judge Foschio issued a scheduling order requiring the completion of fact discovery by August 9, 2018, and the filing of any dispositive motions by November 20, 2018. Docket Item 16. Consistent with that order, the defendants filed a motion for summary judgment on September 7, 2018. Docket Item 27. In her response to that motion, Smith argued that the defendants’ motion was premature because she had been unable to take depositions or engage in expert discovery; she therefore requested the opportunity to conduct depositions of the parties and some nonparty witnesses.2 Docket Item 31 at 5-7. On October 26, 2018, the defendants replied, arguing that Smith was not denied discovery, contending that she otherwise failed to meet her burden under Federal Rule of Civil Procedure 56(d) to reopen discovery, and providing further support for their motion for summary judgment. Docket Item 32. On January 28, 2022, Judge Foschio issued a Decision and Order (“D&O”) that, in relevant part, extended discovery and “dismissed” the defendants’ motion for summary judgment without prejudice to refiling following the completion of discovery. Docket Item 39 at 12. Specifically, Judge Foschio found that Federal Rules of Civil Procedure 6(b)(1)(B) and 56(d) both supported Smith’s request to extend discovery. Id. at 8. Judge Foschio therefore did not substantively address the defendants’ motion. On February 7, 2022, the defendants appealed Judge Foschio’s decision and asked this Court to consider the merits of their motion for summary judgment. Docket Item 41 at 23. The defendants argued that: (1) Smith’s request to reopen discovery under Rule 56(d) was untimely because it was made after the discovery deadline had passed and the defendants had moved for summary judgment, id. at 7-10; (2) Smith failed to meet her burden under Rule 56(d), id. at 10-16; (3) Judge Foschio improperly and sua sponte considered Smith’s request under Rule 6(b)(1)(B) without notice, id. at 10-11; (4) Smith failed to meet Rule 6′s “excusable neglect” standard, id. at 17-21; and (5) the equities otherwise weigh in their favor, id. at 21-23. On March 16, 2022, Smith opposed the defendants’ appeal, Docket Item 46, and on March 30, 2022, the defendants replied, Docket Item 47. This Court has carefully reviewed Judge Foschio’s D&O, the parties’ submissions to him, and the defendants’ appeal. Based on that review and for the reasons that follow, the Court affirms Judge Foschio’s decision to reopen discovery and denies the defendants’ appeal. DISCUSSION3 “[W]ith respect to non-dispositive discovery disputes, the magistrate judge is afforded broad discretion which a court should not overrule unless this discretion is clearly abused.” Maxwell v. Becker, 2015 WL 5793403, at *1 (W.D.N.Y. Sept. 30, 2015) (quoting Germann v. Consolidated Rail Corp., 153 F.R.D. 499, 500 (N.D.N.Y. 1994)); see also 28 U.S.C. §636(b)(1)(A) (providing that a district judge may reconsider a magistrate judge’s decision on a non-dispositive order only “where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law”).4 Judge Foschio reopened discovery based in part on Rule 56(d). See Docket Item 39 at 8-10. The defendants argue that Judge Foschio erred in that regard because motions for additional discovery under that rule “‘should be made before the close of discovery.’” Docket Item 41 at 8-9 (quoting Justice v. Wiggins, 2014 WL 4966896, at *6 (N.D.N.Y. Sept. 30, 2014)) (citing Espada v. Schneider, 522 F. Supp. 2d 544, 549 (S.D.N.Y. 2007) (“The relief that may be afforded under Rule [56(d)] is not available when summary judgment motions are made after the close of discovery[.]“)). But a recent Second Circuit decision suggests that the principle upon which the defendants rely is not absolute. In Moccia v. Saul, 820 F. App’x 69, 70 (2d Cir. 2020) (summary order), the Second Circuit addressed a district court’s decision granting summary judgment and denying a Rule 56(d) request for additional discovery made after the close of discovery. The Second Circuit affirmed the decision denying the motion to reopen discovery, but it did so on the merits, suggesting that a late motion under Rule 56(d) is not an absolute bar. See id. at 70-71 (noting that the defendant had already responded to similar discovery requests; that the district court had characterized some requests as “extremely overbroad”; and that the district court had reasonably denied requests that could have been made earlier in the litigation). So Judge Foschio apparently had the discretion to entertain the request for more discovery under Rule 56(d) even though the request was made after discovery closed and a motion for summary judgment was pending. And even if he did not have that discretion under Rule 56(d), Judge Foschio also addressed Smith’s request for further discovery under Rule 6(b)(1)(B). See Docket Item 39 at 8-9. That rule explicitly permits a court to extend any deadline — even one that has already passed — if a party failed to act because of “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). And Judge Foschio expressly noted the excusable neglect standard, see Docket Item 39 at 6-9, detailing several reasons why any failure to act by counsel was excusable, see id. at 7-8. The defendants argue that Judge Foschio erred in addressing Rule 6(b)(1)(B) because Smith did not expressly move for relief under that rule. See Docket Item 41 at 10-11. And they argue that it was improper to apply the Rule 6(b)(1)(B) standard for extending scheduling order dates when Rule 56(d) applies specifically to summary judgment motions. Id. But courts have applied Rule 6(b)(1)(B) even when parties do not expressly invoke the rule. See United States v. $41,352.00 U.S. Currency, 2015 WL 5638211, at *4 (W.D.N.Y. Sept. 24, 2015) (construing request for more time to file answer made in opposition to motion to strike claim as motion under Rule 6(b)(1)(B) to extend time for excusable neglect); Miller v. City of Ithaca, 2012 WL 1565110, at *1 (N.D.N.Y. May 2, 2012) (applying Rule 6(b)(1)(B) standard for extending time to letter motion invoking Rule 56(d)). Likewise, the fact that Rule 6(b)(1)(B) might impact a summary judgment deadline does not mean that it is trumped by Rule 56(d). See Miller, 2012 WL 1565110, at *1 (finding excusable neglect under Rule 6 and extending time to file statement of material facts in opposition to motion for summary judgment). Accordingly, Judge Foschio did not err in assessing Smith’s argument under both the Rule 56(d) and Rule 6(b)(1)(B) standards. The defendants also challenge the substance of Judge Foschio’s decision to extend discovery under Rules 56(d) and 6(b)(1)(B). In assessing Smith’s Rule 56(d) request, Judge Foschio noted that a party seeking such relief must show (1) the facts sought and how they will be obtained; (2) how those facts might reasonably raise a genuine issue of material fact; (3) what efforts were made to obtain them; and (4) why the efforts were unsuccessful. Docket Item 39 at 9 (citing Gualandi v. Adams, 385 F.3d 236, 244-45 (2d Cir. 2004)). In granting Smith’s request, Judge Foschio found that her counsel’s declaration satisfied those requirements. In fact, Judge Foschio explicitly found that: (1) the declaration described the discovery sought, namely the depositions of the named defendants, information pertaining to the treatment of Blancke’s bipolar and attention-deficient/hyperactivity disorders, and the circumstances under which Karris and Blancke were assigned to the same prison cell, Docket Item 39 at 9-10; (2) the declaration sufficiently explained how that information might assist Smith in establishing viable Eighth Amendment claims, id. at 10; and (3) the parties had discussed coordinating the depositions with those in a parallel action in the New York State Court of Claims, but a partial dispositive motion pending in that action delayed discovery, id. at 5-6, 10. In their objections, the defendants assert that counsel’s declaration is insufficiently precise as to the facts Smith hopes to uncover, Docket Item 41 at 11-12, and offers only a conclusory statement that the requested discovery can reasonably be expected to raise a genuine issue of material fact, id. at 12-13. They also argue that there was no agreement to coordinate depositions, noting that Smith’s statement to the contrary was unsworn and refuted by their counsel’s declaration. Id. at 14. And they observe that litigants cannot extend discovery deadlines by agreement without the court’s blessing.5 Id. As to the defendants’ first two arguments, Judge Foschio reviewed Smith’s counsel’s declaration and found it sufficient, Docket Item 39 at 9-10 — a finding that this Court cannot conclude was clearly erroneous. Moreover, the case law that the defendants cite does not suggest otherwise. Indeed, as Smith correctly notes, by citing cases that came to the opposite conclusion in the exercise of a court’s discretion, the defendants simply “ask this Court to substitute its judgment in the place of Judge Foschio['s]“; those cases do not demonstrate that Judge Foschio’s decision was contrary to law. See Docket Item 46 at 15; Edmonds v. Seavey, 2009 WL 2150971, at *2 (S.D.N.Y. July 20, 2009) (“A showing that reasonable minds may differ on the wisdom of granting the [plaintiff's] motion is not sufficient to overturn a magistrate judge’s decision…. [T]he party seeking to overturn a magistrate judge’s decision carries a heavy burden.” (internal quotation marks and citations omitted)). And as to their other arguments, while the defendants contend that there was never an agreement “to keep discovery in this action open,” they admit that both sides had discussed coordinating discovery in this case and the one pending in the New York Court of Claims to avoid duplicative depositions. Docket Item 38-1
